State Of U.P. vs Sri Ram
2023 Latest Caselaw 5004 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- APPLICATION U/S 378 No. - 132 of 2016
 

 
Applicant :- State of U.P.
 
Opposite Party :- Sri Ram
 
Counsel for Applicant :- Govt. Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Rajesh Kumar, learned Additional Government Advocate for the State and perused the record.

This application under Section 378(3) Cr.P.C. has been moved on behalf of the State requesting to grant leave to appeal against the judgment and order dated 06.04.2016 passed by the learned Additional Sessions Judge, Court No.-2, District Sitapur, in Sessions Trial No. 162 of 2008, arising out of Case Crime No. 494 of 2014, under Sections 323, 506 I.P.C. and Section 3(1)(x) S.C./S.T. Act, Police Station Mishrikh, District Sitapur, whereby the accused person/respondent has been acquitted of the charges framed against him.

Learned A.G.A. while referring to the impugned judgment and order passed by the trial court, submits that patent illegality has been committed by the trial court in acquitting the accused person/respondent, as the case of the prosecution was proved beyond reasonable doubt and it appears that the trial court has not considered the evidence of the prosecution in right perspective.

It is further submitted that the trial court has not considered this aspect of the matter that the witnesses of a crime are not required to give evidence in a video-graphic manner and certain discrepancies and minor contradictions are bound to occur in the testimony of the prosecution witnesses and, thus, the impugned order passed by the trial court is liable to be set-aside and the State be granted leave to appeal in order to challenge the same.

Perusal of the record in the background of the submissions made by learned A.G.A., would reveal that the first information report was lodged by informant Lallu on 06.11.2004 at Police Station Mishrikh, District Sitapur against three named accused persons including the instant applicant stating therein that the informant was going to reap his 'paddy crop' and at about 1:30 pm. all accused persons challenged him and started beating him with 'lathi and danda' and by which he sustained fatal injuries and one Guddu son of Babu of his village arrived there and challenged the accused persons by which they had fled away. It is also stated in the first information report that informant belongs to the 'Pasi Caste', which is under Scheduled Caste and accused persons belong to higher caste and they have also threatened him of his life.

On the basis of this written information an F.I.R. at Case Crime No. 494 of 2004, under Sections 323, 506 I.P.C. and Section 3(1)(x) S.C./S.T. Act was registered at Police Station Mishrikh, District Sitapur and after investigation charge sheet was also filed against only one accused person namely Sri Ram, under Sections 323, 506 I.P.C. and Section 3(1)(x) S.C./S.T. Act.

The trial court during the course of trial framed charges against accused/respondent- Sri Ram, under Sections 323, 506 I.P.C. and Section 3(1)(x) S.C./S.T. Act, to which the accused persons denied the charges and claimed trial.

The prosecution in order to prove its case before the trial court has presented P.W.-1/Lallu, P.W.-2/Dr. Ashok Kumar Rawat, P.W.-3/Additional S.P. Subhash Chandra Gangwar and in addition to the oral evidence the prosecution has also relied on documentary evidence i.e. charge sheet, written application on the basis of which the F.I.R. was registered, Site Plan, Injury report, etc.

After conclusion of the evidence of the prosecution, the accused person/respondent in his statement recorded under Section 313 Cr.P.C. denied the prosecution evidence and claimed that he has been falsely implicated in this case.

The trial court after appreciating the evidence available on record came to a conclusion that the prosecution has failed to prove its case beyond reasonable doubt and acquitted the accused person/respondent of all the charges framed against him.

It is also worthwhile to recall that during the course of investigation P.W.-2/Dr. Ashok Kumar Rawat had examined the injured/informant Lallu on 06.11.2004 at 2:45 pm. and during the course of medical examination two lacerated wounds have been found on the person of the deceased i.e. one on the left side of head, scalp deep and another on left side of face. Apart from it, two abraided contusions were also found on left calvical bone and on back of left side and one contusion has been noticed on the posterior part of left hand and according to the doctor all injuries were simple except injury no.3, which was kept under observation and was also advised for X-ray. However, neither any X-ray was performed nor any X-ray report or supplementary report was prepared.

Perusal of the record, in the background of the submissions made by learned A.G.A., would reveal that the prosecution has relied only on the evidence of informant. The law with regard to the criminal cases based on the testimony of a single prosecution witnesses is now no more res integra and the same has been settled by Catena of Judgments. The leading case being with Vedu Valu Thevar Vs. The State of Madras; MANU/SC/0039/1957, wherein the Hon'ble Supreme Court has held as under:

"14. In view of these considerations, 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 it down that "no particular number of witnesses shall in any case be required for the proof of any fact."

The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness.

The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted".

Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.

It is not seldom that a crime had 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 a single witness only could be available in proof of the crime, would go unpunished.

It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances 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 to be 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.

Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

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.

15. 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. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist 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. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."

The same principles was followed by the Hon'ble Supreme Court in Lallu Manjhi and Ors. Vs. State of Jharkhand; MANU/SC/0004/2003 has held as under:

"10. 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. {See - Vadivelu Thevan etc. v. State of Madras, MANU/SC/0039/1957}."

The above mentioned case laws are suffice to reflect that to convict the accused persons on the basis of the testimony of a single prosecution witness, the testimony of the sole witness must fall in the category of wholly reliable category. It is in this legal background the evidence of the sole prosecution witness namely Lallu Singh is to be appreciated.

The trial court while coming to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt was of the opinion that the first information report was lodged against three accused persons while the charge sheet has been filed only against single accused person and the investigating officer has disbelieved the case of the prosecution with regard to the other two co-accused persons pertaining to which no application was given by the prosecution for summoning them under Section 319 Cr.P.C.

The second ground on which the trial court appears to have acquitted the accused person is that despite advised X-ray, the informant/injured did not subject himself to X-ray and in this background the trial court was of the view that perhaps the injuries which are simple in nature have been manufactured. The third ground on which the trial court appears to have acquitted the accused person/respondent is that no independent witness has been produced by the prosecution while the name of Shri Guddu has been shown in the first information report as the person who has witnessed the crime and also on the ground that in the first information report no active role has been assigned to the instant respondent/accused person (s) in participation in 'marpeet' and after considering the cumulative effect of the discrepancies noted herein-before, the trial court was of the view that the prosecution has failed to prove its case beyond reasonable doubt and, thus, acquitted the accused person/respondent.

Having considered the judgment of the trial court, in the background of the submissions made by learned A.G.A. and in the background of the findings recorded by the trial court which have been made the basis of acquittal, in the considered opinion of this Court, no illegality or to say any irregularity has been committed by the trial court.

It has to be recalled that the criminal trial commences with an initial presumption of innocence in favour of the accused person and after his acquittal, the same is fortified and thus, very strong and cogent grounds are required to disturb finding of acquittal and the same could only be disturbed if the judgement of the trial court is based on illogical appreciation of evidence or is patently perverse which is not a case in the instant case.

The view of the trial court appears to be a probable view having regard to the evidence available on record, thus, for the reasons mentioned herein-before we do not find any merit in the application moved by the State. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.

Since, the application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the same is also dismissed.

Order Date :- 15.2.2023

Praveen