Uma Kant Pandey vs State Of U.P. & Ors

Heard learned counsel for the appellant and learned A.G.A. for the State and perused the record of the trial Court.

Instant criminal appeal which has been filed by the victim under Section 372 of the Cr.P.C. is being disposed of at the stage of admission as the record of the Subordinate Court is available before this Court.

This appeal under Section 372 of the Cr.P.C. has been filed by the victim Uma Kant Pandey against the judgment and order dated 30.11.2012 passed by Additional District and Sessions Judge, Court No.11, Pratapgarh in Sessions Trial Nos. 35 of 2009 and 544 of 2010, both arising out of Case Crime No. 34 of 2008 pertaining to Police Station Aaspur Devsara, District Pratapgarh, whereby the respondent No.2 and 3 have been acquitted of the charges under Sections 307, 452 and 504 of I.P.C.

Brief facts giving rise to this appeal are that on 18.02.2008 at 22:00 hours informant Uma Kant Pandey submitted a typed application (Exhibit-ka-1) at Police Station Aaspur Devsara stating therein that respondents/accused persons Jagat Narayan Pandey and Ramakant Pandey are inimical towards him on account of a land dispute and on the basis of this enmity, on 16.02.2008 at about 9:30 pm., when informant came to his house and lighted a lantern inside his house, both accused persons/respondents namely Jagat Narayan and Ramakant started hurling filthy abuses and with the intention of killing him assaulted him with an axe and stick on his head, resulting in grievous injuries. Informant/injured raised an alarm and ran inside his house, but accused persons chased him and assaulted him in his house also. Accused persons thereafter fled away from the scene after threatening the informant of his life. He immediately went to the police station to lodge the FIR, but the police personnels at the police station advised him to get his injuries examined and also that FIR shall be written afterwards.

On the basis of the aforesaid written information, an FIR was lodged at Case Crime No. 34 of 2008, under Sections 504, 452 and 307 of I.P.C. at Police Station Aaspur Devsara, District Pratapgarh and a Chick F.I.R. (Exhibit-ka-7) was prepared and substance of the information was also recorded in the G.D. (Exhibit-ka-8) No. 44 at 22:00 hours.

The informant along with his written application also submitted the injury report (Exhibit-ka-3), which shows that injured Uma Kant Pandey was medically examined on 16.02.2008 at 11:30 pm. at District Hospital, Pratapgarh and following injuries were found on his person:-

Injury No.1/Incised wound 05 cm. x 01 cm. x bone deep on left side of head in astroposterior direction 07 cm. above the medial end of left eye brow, kept under observation, advised X-ray of skull.

Injury No.2/Contusion 03 cm. x 04 cm. on left side of back 05 cm. below the anterior aspect of left scapula.

Injury No.3/Abrasion 01 cm. x 0.5 cm. on medial aspect of great toe of left foot surrounded by contusion 03 cm. x 01 cm. The injuries were kept under observation and X-ray of the left foot was also advised.

As per the opinion of the doctor, Injury No.1 was caused by sharp object, while Injury No.2 and 3 were caused by hard and blunt object. Injury No.1 and 3 were kept under observation. The injuries were stated to simple in nature and fresh in duration. Patient was admitted, who was in semi-conscious condition and had vomited once during examination.

The investigation of the case was entrusted to Shri T.N. Pandey, who arrested the accused Jagat Narayan Pandey and recorded his statement, he also recorded the statement of informant and also collected necessary documents pertaining to his admission in the hospital and also recorded the statement of Dr. Ramesh Chandra and the statement of witnesses Pramod Kumar, Ishwar Chandra and Pradeep Kumar. He also inspected the spot on 20.02.2008 and on the identification of informant prepared the Site Plan (Exhibit-ka-3) of the spot. He found the sufficient material/evidence against accused persons Jagat Narayan Pandey and Ramakant Pandey and submitted charge-sheet (Exhibit-ka-4 and ka-5) against them under Sections 307, 452 and 504 of I.P.C.

The case being triable by the Court of Sessions was committed to the Sessions Court and the charges under Sections 307/34, 452 and 504 of I.P.C. were framed against both the accused persons separately. They denied the charges and claimed trial.

Prosecution in order to prove its case has relied on following documentary evidence:-

Written application (Exhibit-ka-1), Radiological Report (Exhibit-ka-2), Injury Report (Exhibit-ka-3), Site Plan (Exhibit-ka-6), Charge-sheet against respondent Jagat Narayan Pandey (Exhibit-ka-4), Charge-sheet against Ramakant Pandey (Exhibit-ka-5), Chick F.I.R. (Exhibit-ka-7), G.D. Qayami (Exhibit-ka-8).

In addition to the above mentioned documentary evidence, the prosecution testified following witnesses to prove its case beyond reasonable doubt:-

P.W.-1/Umakant (Injured/informant), P.W.-2/Ramesh Chandra (Eye witness), P.W.-3/Ishwary Chandra Pandey (Eye witness), P.W.-4/Dr. R.S. Verma (Radiologist), P.W.-5/Dr. Kaushal Kishore Bhatt (Doctor, who examined the injuries of the informant), P.W.-6/S.I. Trilokinath Pandey (Investigating Officer), P.W.-7/Constable Clerk Mohd. Jagroop (Scribe of FIR and G.D. Qayami).

After the closure of the prosecution evidence the statement of the accused persons was recorded under Section 313 of the Cr.P.C., wherein the accused persons have stated to have been falsely implicated in the case and also that they were innocent and were not present at the spot. The trial Court after appreciating the evidence available on record was of the view that the prosecution has failed to prove its case beyond reasonable doubt against respondent No.2 and 3 and accordingly acquitted them of the charges framed against them.

Learned counsel for the informant/appellant submits that the trial Court has committed manifest error in recording the acquittal of respondent No.2 and 3, as heinous offence was committed by them and the Court below has misinterpreted the testimony of the informant.

He further submits that the appellant sustained injuries in the incident and the testimony of the injured was corroborated by the evidence of P.W.-5/Dr. Kaushal Kishore Bhatt and, therefore, there was no occasion for the trial Court to have disbelieved the testimony of the injured informant and, therefore, the judgment of the trial Court is based on findings which are not commensurate with the evidence available on record and, therefore, the judgment of the trial Court is based on 'surmises and conjectures'.

It is further submitted that the trial Court has given much weightage to irrelevant and insignificant minor contradictions. Therefore, the judgment and order of the trial Court is liable to be set-aside and the respondent No.2 and 3 are liable to be convicted.

Learned A.G.A. on the other hand submits that the trial Court after appreciating the evidence available on record has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, has acquitted the respondent No. 2 and 3 of the charges and, therefore, no illegality appears to have been committed by the trial Court.

It is further submitted by him that there was an initial presumption of innocence in favour of the respondents and once they have been acquitted by the trial Court, the presumption of innocence has fortified and keeping in view the reasons and findings given by the trial Court, it could not be said that the findings are not based on evidence available on record and, therefore, there is no occasion to interfere in the judgment of acquittal passed by the trial Court.

Having heard learned counsel for the parties and having perused the record of the trial Court, we find that the trial Court has recorded the acquittal of the respondent No.2 and 3 on following scores:-

(I) The two independent witnesses of the prosecution, who claimed to have witnessed the crime namely P.W.-2/Ramesh Chandra and P.W.-3/Ishwar Chandra Pandey have turned hostile and they have not supported the case of the prosecution.

II. The evidence of P.W.-1/Umakant is not truthful and reliable in the facts and circumstances of the case due to inherent inconsistencies and contradictions in his deposition.

III. The medial evidence is not corroborating ocular evidence, as the injured/informant has not received the injuries as he would have been sustained in view of his ocular account of the incident.

IV. The wife of the informant who may be the natural witness of the crime has not been produced as witness and the conduct of the injured is of such a nature which raises a doubt about the prosecution version of the incident and false implication could not be ruled out.

It is worth to recall that Section 134 of Evidence Act does 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 the 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 and 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 has 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."

Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 has held as under:-

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

In Anil Phukan Vs. State of Assam, MANU/SC/0228/1993 relied on by appellants, Hon'ble Supreme Court held that:- "Indeed conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction." (Emphasis ours) In another case Joseph Vs. State of Kerala reported in MANU/SC/1084/2002, Hon'ble Supreme Court has held as under:-

"14........ Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable.Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable. "(Emphasis ours) In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, " Para 13 the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable 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 has held Para 17 "Suspicion, however grave it may be, cannot take place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

We have very carefully perused the evidence of P.W.-1/Umakant Pandey, who is the injured witness in the background of above principles and have found that to record a finding of conviction it was obligatory on the part of the trial Court to hold that the evidence of solitary witness P.W.-1/Umakant (as other witnesses have turned hostile) is wholly reliable in the facts and circumstances of the case. However, after perusing the testimony of P.W.-1/Umakant, we are in agreement with the finding of the trial Court that the same does not pass the test of wholly reliable or truthful.

We have noticed that only 03 injuries are stated to have been found on the person of P.W.-1/Umakanat Pandey in the injury report, one of which was incised wound of the dimension of 05 cm. x 01 cm. x bone deep and two other injuries were contusion and abrasion, respectively, on the scapula and the great toe of left foot. As per the testimony of P.W.-4/Dr. R.S. Verma (Radiologist), no fracture has been found beneath any of the injuries allegedly sustained by appellant. It is also evident that in his statement recorded before the Court below, it has been categorically stated by the injured that he was assaulted when he was attempting to close the door and also that Jagat Narayan Pandey entered his house by pushing him aside and hit him on his head and also that the ''kulhari' fell there in scuffle. It is also stated that even when the witnesses Pradeep Kumar Pandey and Rajesh Kumar and other persons came to the spot, he was being assaulted by the accused persons in front of these witnesses. The trial Court has recorded a finding that neither the ''axe', which is alleged to have fallen at the spot has been found by the Investigating Officer nor the injuries sustained by the informant/injured is commensurate with the degree of assault sustained by him. Further minute scanning of the evidence of this witness would reveal that he has admitted in his evidence that the clothes which he was wearing at the time of incident were stained with blood, but no such clothes have been given by him to the Investigating Officer. The trial Court has recorded a finding that it is accepted by him that he knew that the clothes, which were stained with blood were an important peace of evidence. During his examination, no explanation has been given by the injured witness P.W.-1/Umakant Pandey as to why he did not give his blood stained clothes to the Investigating Officer. It is also evident from the record that this witness was unable to recall as to whether fracture of any bone was sustained by him and, therefore, the trial Court has doubted his conduct that he did not know whether any fracture of any bone was caused. Apart from it, the trial Court has also doubted the presence of source of light, at the time of incident.

Having perused the testimony of this witness, we are of the considered view that it is an admitted fact that informant/injured and respondent No.2 and 3 are real brothers and some dispute pertaining to the division of their ancestral property was in existence between them and keeping in view the inherent inconsistencies in the evidence of P.W.-1/Umakant Pandey, false implication on the basis of enmity could not be ruled out and we are also in agreement with the finding of the trial Court that the evidence of this solitary witness, who is also allegedly injured is not truthful and reliable and, therefore, it is not safe to convict the respondent No.2 and 3, on the basis of such untruthful and unreliable evidence of this witness. Need not to say that the prosecution is obliged to prove its case beyond all reasonable doubts against the accused persons/respondents and this burden never shifts unless it has been provided by some statute. The golden principle of criminal jurisprudence which runs all through the web of the criminal jurisprudence is that it is always the duty of the prosecution to prove its case beyond all reasonable doubt and if on a reasonable appreciation of evidence two views appears to be possible and the trial Court has adopted a possible view, which is favourable to the accused persons, it cannot be said that the view adopted by the trial Court is erroneous. In an appeal filed against the acquittal, the Court will have to remind itself that the initial presumption of innocence available to the accused person of the crime gets further fortified and the interference in the order of the acquittal should only be made when there is any perversity on the face of the judgment of either fact or law or to avoid a miscarriage of justice that had occurred by the acquittal of the accused persons. But where on the basis of evidence on record, two views are reasonably possible, it is not fair for the appellate Court to substitute its view in place of the view of the trial Court. It is only when the approach of the trial Court with regard to the finding recorded for acquitting the accused persons is found to be apparently erroneous vis-a-vis the evidence available on record and also the judgment suffers from the error apparent in arriving at the conclusions which are not commensurate with the evidence that the appellate Court can interfere with the order of acquittal.

Keeping in view the inherent weaknesses and inconsistencies appearing in the evidence of P.W.-1/Umakant, we are of the considered opinion that the view taken by the trial Court was probable and logical view and the judgment of the trial Court could not be said to be not based on evidence and material available on record or either illogical or improbable. Therefore, having regard to the evidence available on record, we do not find any illegality either in appreciation of evidence made by the trial Court or in application of law and, therefore, we do not find any substance in the appeal.

In view of above, the appeal filed by the appellant/informant-Uma Kant Pandey under Section 372 of the Cr.P.C. is dismissed at the stage of admission and the impugned Judgment of acquittal is affirmed.

The record of the trial Court be immediately sent back to the trial Court with a copy of this Judgment.