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Yogendra Singh & Others v/s State of U.P.

    Criminal Appeal No. 1967 of 1988

    Decided On, 03 March 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SHEO KUMAR SINGH & THE HONOURABLE MR. JUSTICE ANANT KUMAR

    For the Appellants: J.S. Sengar, V.P. Srivastava, A.K. Dwivedi, Kameshwar Singh, Advocates. For the Respondents: A.K. Srivastava, D.K. Singh, D.K. Srivastava, L.K. Pandey, Advocates.



Judgment Text

Anant Kumar, J.

1. This criminal appeal u/s 374(2) Cr.P.C. has been filed by the accused persons Yogendra and Virendra Singh sons of Rajman Singh and Tej Bahadur Singh son of Dharam Deo Singh @ Mithaloo Singh, who have been convicted and sentenced by Sri S.K. Misra, Sessions Judge, Azamgarh, in respect of Sessions Trial No. 130 of 1985, State v. Dharamdeo and others, passed on 31.8.1988, under Sections 148, 302/149 I.P.C., arising out of Crime No. 142 of 1984, Police Station Deogaon, District Azamgarh. In brief, the prosecution story runs like this, that the complainant Chhabiraji, wife of late Sri Nath Singh, resident of village Rampur Kathrawa, Police Station Deogaon, District Azamgarh had lodged an F.I.R. dated 27.8.1984 at 12.30 P.M. wherein it has been stated that since last 15-20 years, there was dispute in respect of abadi land between the sons of the complainant namely, Udai Narayan @ Udayee and Dharamdeo @ Mithaloo and since then enmity was there. About quarter to four years back, there was marpeet between both the parties regarding which a case u/s 307 I.P.C. was pending in the Court of Judicial Magistrate, Lalganj. On the day of the occurrence, the son of the complainant Udai Narayan had gone to see his paddy field and when he was coming back at about 10.30 A.M. and when he reached at the eastern boundary of field of Ramdeo Singh, the accused persons Dharmdeo @ Mithaloo, Yogendra, Virendra, sons of Rajman, Rajman son of Tulsi and Tej Bahadur son of Dharmdeo armed with country made pistol (Tamancha) and knives came there and surrounded Udai Narayan @ Udayee and started piercing knives. When he raised alarm, the complainant Chhabiraji, Chandrabali son of Deonandan, Banshu son of Umrao, Satya Narayan son of Ram Karan, who were co-villagers and were working in their respective fields

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, came to his rescue and challenged the accused persons but the accused persons continued with such act till Udai Narayan died due to injuries of knives, then the accused persons leaving Tamancha and cartridges in the field and taking the knives run away. This incident has been caused by accused persons due to old enmity. Dead body of the deceased, Tamancha and cartridges were lying in the field of Ramdeo. On the basis of this complaint, the F.I.R. was lodged and police came into action and dead body of the deceased was sent for post-mortem.

2. On the dead body of the deceased as many as 13 ante-mortem injuries of different dimensions, as detailed below, were found.

1. Incised wound 2 cm x 1/2 cm x muscle deep on face. Face was closed to angle of mouth and margins were clean cut.

2. Incised wound 2 cm x 1/2 cm x muscle deep on face on left side, 6 cm external to left angle of mouth. Margins were clean cut.

3. Incised wound 1.5 cm x 1/2 cm x muscle deep, on right side face in the middle of the mouth bone. Margins clean cut and was obliquely placed.

4. Multiple stab wound in an area of 14 cm x 15 cm on the middle of the neck and both sides of collar-bone in all 23 injuries-each measuring 1/2 cm x 1/2 cm x neck contents deep to 4 1/2 cm x 1 cm x neck contents deep. Margins clean cut and its direction was downwards.

5. Incised wound 2 cm x 1/2 cm x muscle deep on left side of stomach, 10 cm above the umbilicus. Margins were clean cut, 11 O'clock position.

6. Incised wound 2 cm x 1 cm x muscle deep on left side of stomach 4.5 cm outer to injury No. 5. Its tail was downwards and margins clean cut.

7. Stab wound 2 cm x 1 cm x stomach content deep on left side 19 cm over to umbilicus. Margins clean cut and direction was downwards medially.

8. Stab wound 2 cm x 1 cm x abdomen deep on right side stomach, 5 cm below right nipple. Margins were clean cut and direction was inward and on opening the wound, liver was found lacerated.

9. Stab wound 2 cm x 1 cm x abdomen contents deep right side backwards, 23 cm below right stipula and 13 cm lateral to mid-line. Margins were clean cut, obliquely placed and on opening the wound, liver was found lacerated.

10. Stab wound 2 cm x 1 cm x abdomen deep on right side back, 1 cm inner to injury No. 9 and was obliquely placed, direction was upward medially, margins were clean cut. On opening the wound, umbilicus and stomach were found lacerated.

11. Stab wound 2 cm x 1 cm x abdomen deep on right side back, 4 cm anterior to scapula-outer side. Margins clean cut.

12. Stab wound 2 cm x 1/2 cm x abdomen deep on right side back, 33 cm below interior area of right scapula and 2 cm lateral to mid line.

13. Stab wound 1.5 cm x 1/2 cm x abdomen deep on right side back 4 cm lateral to injury No. 12. Margins were clean cut and umbilicus was lacerated.

After investigation, charge-sheet was submitted in the Court and charges were framed by the Vth Additional Sessions Judge, Azamgarh against five accused persons i.e. Dharmdeo Singh alias Mithaloo Singh, Yogendra Singh, Virendra Singh, Rajman Singh and Tej Bahadur Singh, under Sections 148, 302/149 I.P.C.

3. Trial proceeded and on behalf of the prosecution. PW-1 Banshoo, PW-2 Chandrabali, PW-3 Harihar and PW-4 Smt. Chhabiraji complainant were examined as witnesses of fact whereas other formal witnesses PW-5 Chandrabhan Singh, PW-6 Inspector C.B.C.I.D. Daya Shanker Dwivedi, PW-7 S.I. Raj Bahadur Singh, PW-8 Dr. S.K. Gupta, PW-9 Constable Ramjeet were examined. On behalf of defence DW-1 Ashok Kumar, DW-2 Munnar and DW-3 Arjun Prasad Tiwari were also examined.

4. After hearing the learned counsel for defence as well as prosecution, the learned Sessions Judge, Azamgarh vide its judgment and order dated 31.8.1988 has convicted and sentenced the accused persons-appellants Yogendra Singh, Virendra Singh and Tej Bahadur Singh u/s 302 read with Section 34 I.P.C. to imprisonment for life. However, the other accused persons Dharmdeo @ Mithaloo and Rajman were acquitted. Against the said conviction and sentence, the present appeal has been filed.

5. We have heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri A.K. Dwivedi and Sri Kameshwar Singh, learned counsel for the appellants and Sri Sangam Lal Kesarwani, learned A.G.A. for the State and perused the record.

On behalf of the appellants, it is mainly argued that during deliberations the learned trial Court has disbelieved the witnesses Banshu and Chandrabali because of the fact that they had grudge against the accused Dharmdeo Singh Pradhan whereas witness Harihar has been disbelieved because of the fact that he was not named in the F.I.R. and has been shown as a witness later on after due consultation. It is further argued that the conviction of the accused persons-appellants is solely based on the evidence of PW-4 Smt. Chhabiraji who is mother of the deceased. It is further argued that theory of Katta as placed by prosecution, has also been disbelieved by the learned trial Court. It is also argued that the F.I.R. in this case is ante-timed and from the record, it transpires that the F.I.R. could not be lodged so promptly as shown by prosecution. It is also argued that the F.I.R. has been lodged with due consultation with the prosecution witness Sampat who had all along there with the complainant from the village up to the police station. It is also argued that as per the evidence produced by prosecution, the police came on the spot even before lodging of the F.I.R. so the possibility cannot be ruled out that the F.I.R. was lodged under the direction and dictation of the police personnel, which is also further forfeited with the fact that as per the version of the complainant, the complaint was scribed at the residence of the complainant through pen and by same ink, the complainant appended her thumb impression but from a very perusal of the complaint, it is evident that the thumb impression was put on the complaint after using ink pad, which is normally not available in the village and is only available in the police station.

It is further argued that against the acquittal of two accused persons i.e. Dharmdeo @ Mithaloo and Rajman, no State appeal has been filed, as such, the prosecution himself has totally agreed with the doubt of the trial Court and findings given therein.

6. On behalf of the State, it is argued by learned A.G.A. that the learned trial Court has rightly based its judgment on the sole testimony of PW-4 Smt. Chhabiraji, who is mother of the deceased and there was no occasion for her to speak lie before the Court and to give false evidence against the accused persons-appellants leaving real culprits. It is further argued that as per the settled principles of law, conviction can be based solely on the testimony of one eye-witness and as per the Evidence Act, no particular number of witnesses is required for conviction of the accused persons. It is also argued that PW-4 is fully reliable witness and her evidence cannot be disbelieved on any count.

7. From the perusal of entire prosecution and defence versions, it is admitted fact that there was a long standing enmity of pradhani and land dispute between the parties. The entire village in which the incident took place, was divided in two parties, one was supporting the deceased whereas the other was supporting the accused persons. The learned trial Court while discussing the evidence has come to the conclusion that incidentally in this case all the three other witnesses PW-1 Banshu, PW-2 Chandrabali and PW-3 Harihar have some grudge against the accused Dharmdeo Singh Pradhan. Since he was village pradhan, there must be partibandi in the village and it is very difficult to find out completely an independent witness in village in which there is a partibandi and litigation. It has further been held by the learned trial Court that it is true that all the three witnesses are inimical towards accused Dharmdeo Singh Pradhan as is found from the record but that benefit could only go to Dharmdeo Singh Pradhan and not to remaining three accused persons. Moreover, only on the statement of PW-4 Smt. Chhabiraji complainant, mother of the deceased, conviction of three accused persons be made in this case.

8. Learned counsel for the appellants have vehemently argued that the very presence of PW-4 on the spot is highly doubtful because it has come in the evidence that when the occurrence took place, the deceased raised alarm and on hearing the voice of her son, the complainant came running from elsewhere and she stated that she had seen the occurrence. It is argued that circumstances in which the alleged occurrence is said to have taken place, there is thin possibility that the complainant may reach to the spot and witness the incident.

9. It is not in dispute that the conviction may be sustained even on the basis of single testimony. The Hon'ble Supreme Court more than once has held that on the single testimony of a witness, conviction can be sustained safely but in such circumstances where the Court is convicting the accused persons on the sole testimony of a witness, they have to very careful and evidence should be scrutinized in a very careful manner.

10. Now, we have to look into the evidence of PW-4 on the touchstone of principles of law laid down by the Hon'ble Supreme Court because in this case, the learned trial Court based its conviction solely on the evidence of PW-4.

11. In a case reported in the case of Jarnail Singh Vs. State of Punjab, , wherein the Hon'ble Supreme Court has held that it is no doubt true that conviction would be based on the sole testimony of a solitary eye-witness but in order to be the basis of conviction his presence at the place of the occurrence has to be natural and his testimony should be strong and reliable and free from any blemish.

12. In Chuhar Singh Vs. State of Haryana, , it was held that "what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fail by the evidence of (single witness), it is necessary to examine that evidence critically.''

Similar view has been taken by the Hon'ble Supreme Court in the case of Chacko @ Aniyan Kunju and Others Vs. State of Kerala, .

13. In this case, the learned trial Court has based its conviction solely on the evidence of PW-4. PW-4 is the complainant of the case and she has mentioned in the F.I.R. that on hearing the voice of Udai Narayan, she alongwith other witnesses reached on the spot and tried to intervene in the scuffle but could not succeed. In her statement, she has supported the prosecution version. During cross-examination, she has stated that at the time of occurrence, she was going to purchase grocery from a shop which was about 150 paces away from the scene of occurrence, that was the shop of one Charittar and from there itself, she had heard the commotion and then she had ran from that place to the place of the occurrence but in the site plan prepared by the Investigating Officer (Ext. Ka-10), the place from where PW-4 ran to the place of occurrence, was not shown. However, it is common experience that in the village abadi shops are situated away from the agricultural fields. She has further stated that after hearing the commotion, when she rushed to the place of occurrence, she had passed through the abadi then went to the fields. Since it was a paddy season, there was water and mud in the fields. She has ran through the fields and through boundaries of the fields (Merh). She has further stated that from the place where she heard the commotion, she had seen and recognized the accused persons. In the last she has stated that the entire occurrence had happened within five minutes.

14. Another witness of fact PW-2 Chandrabali has stated in his statement that the entire occurrence had taken place within one and half minutes. So it is evident from the evidence of PW-4 that she was not present on the spot since before the occurrence and she came running after hearing cries of her son from a grocery shop where she had gone to purchase grocery. So, to our view, within a span of one and half minutes or within five minutes it is very difficult to a lady aged about 55 years to run from the abadi and to reach the place of occurrence and witness the entire occurrence. In this regard, the argument of the learned counsel for the defence is convincing that the presence of PW-4 is improbable and doubtful at the time of occurrence.

15. It was argued on behalf of the counsel for the defence that as per the prosecution version, the occurrence had taken place in a field where paddy crop was there and water was also there in the field. It is confirmed from the spot memo prepared by the Investigating Officer (Ext Ka-10) that the occurrence had taken place in the paddy field of Sri Ramdeo Singh but on the clothes of the deceased, no mud was found, as is evident from the inquest report, Ext. Ka-5, which creates doubt about the place of occurrence also.

16. It was further argued by learned counsel for the defence that as per the statement of PW-4, she remained at the place of occurrence for about one hour after the occurrence, from there she came to her residence and got the complaint scribed through Chandrabhan Singh which took about ten minutes, from there she went on foot till Niharganj which was about three kilometers from her village and there she took a tempo and then reached to the police station. As per the F.I.R., the occurrence had taken place at about 10.30 A.M. whereas the F.I.R. was lodged within two hours i.e. at about 12.30 P.M. So, if the statement of PW-4 is to be believed, she remained there for about one hour after the occurrence i.e. at about 11.30 A.M. she remained on the spot then went to her residence to get the complaint scribed then went three kilometers on foot, took a tempo and then reached to the police station. So, in our view, in such case she could not reach to the police station up to 12.30 P.M., as such, the time of registration of the F.I.R. appears to be doubtful. So, looking to the entire evidence of PW-4, it is evident that she was not present on the spot at the time of occurrence and she reached on the spot after the occurrence and then after gathering the facts from the spot, she lodged the F.I.R. against the accused persons to whom already there was enmity of land as stated above. It is also a fact drawn on record that as per the prosecution version, the accused Dharmdeo alias Mithaloo was also having knife in his hand and as per the prosecution version, he has been shown active role of causing injuries to the deceased but on the similar set of facts and evidence on record, the learned trial Court has given a benefit of doubt to him and has acquitted him of all the charges. So, in our view, the learned trial Court was also in some doubt about the truthfulness of PW-4, that is why on the similar set of facts, one person having knife in his hand has been acquitted and other similarly situated person has been convicted. So, to our view, the statement of PW-4 is not wholly reliable and it is not safe to uphold the conviction of the appellants on the sole evidence of PW-4 as has been done in the present case by the trial Court, as such, in our view, the appeal is liable to be allowed and the sentence and conviction of the appellants is liable to be set aside.

Accordingly, the appeal is allowed. The judgment and order of the trial Court dated 31.8.1988 passed by the Sessions Judge, Azamgarh is set aside and the appellants Yogendra Singh, Virendra Singh and Tej Bahadur Singh are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. The appellants shall be set at liberty forthwith.

Let a copy of this judgment alongwith lower Court record be sent to the Sessions Judge, Azamgarh for compliance.

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