Surat Singh vs State Of U.P.
2023 Latest Caselaw 16684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:118601-DB
 
AFR
 
Court No.48
 

 
Case :- CRIMINAL APPEAL No. - 1343 of 1999
 
Appellant :- Surat Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Apul Misra,Alok Ranjan Mishra,Janardan Singh,P.K. Singh,Ran Vijay Singh,Virendra Kumar Shukla(Ac)
 
Counsel for Respondent :- Govt. Advocate,Ashutosh Pandey,Jitendra Kumar,Prashant Rai,Sanjeev Kumar Rai
 

 
Hon'ble Siddhartha Varma, J.

Hon'ble Manish Kumar Nigam, J.

(Per : Manish Kumar Nigam, J.)

This appeal has been filed against a judgment and order of the Second Additional District & Sessions Judge dated 29.5.1999 by which the accused was convicted for the offence under section 302/34 and 307/34 of the Indian Penal Code and was punished for life under section 302/34 IPC and was to undergo for rigourous imprisonment for a period of 7 years for the offence under section 307/34 IPC.

The prosecution case as per the First Information Report lodged by one Sohan Singh was that when Sohan Lal and the deceased Jaswinder Singh had gone to get puncture of the tyre of the trolly repaired on a Gypsy No.DNC 4414 and were getting the puncture repaired then at about 9.30 PM, the accused Surat Singh had exhorted three persons to fire on the deceased Jaswinder Singh. The three persons had fired on Jaswinder Singh with an intention to kill him and thereafter Jaswinder Singh died. It is also the case of the prosecution that a few bullets also hit the first informant. The first informant has stated in the First Information Report that there were electricity bulbs at the place where the incident had occurred. He has also stated that the incident was witnessed by the first informant and a few of the neighbouring shopkeepers. After the incident had occurred, a First Information Report was lodged by Sohan Lal on 18.3.1996 at 3.00 PM. Thereafter investigation followed and the police submitted its charge-sheet in the Court and the IInd Additional District & Sessions Judge, Bijnor on 20.8.1996 framed charges against the appellant. When the appellant was convicted for the offence under section 302/34 and 307/34 of the Indian Penal Code, the instant appeal has been filed.

During trial, seven prosecution witnesses namely Dr. R.S. Rana-PW-1; Sohan Lal-PW-2; Subhash Chandra-PW-3; Rajendra Singh-PW-4; Charan Pal Singh-PW-5; Brahmpal Singh-PW-6 and Vijay Kumar-PW-7 were examined from the side of the prosecution. The accused Surat Singh answered the questions under section 313 Cr.P.C. and claimed innocence. From the side of defence, four witnesses namely Islam Siddiqui; Barun Kumar; Naresh Kumar and Rajendra Kumar were brought in as DWs-1, 2, 3 and 4 respectively.

The PW-1 was a doctor who had examined the injured Sohan Lal (PW-2) and had proven the injury report. PW-2 was Sohan Lal who claims himself to be an eye-witness. He has stated in his deposition that he recognized and knew Surat Singh who was present in the Court. He had stated that the deceased Jaswinder Singh was the younger brother of the accused. He has also stated that both the deceased and the accused were living in the houses opposite to each other. He has further stated that there were some internal disputes between the two brothers. Jaswinder had some threat to his life and, therefore, he had employed Sohan Lal as his gunman. He has stated that when there was a puncture in the tyre of a trolley then Jaswinder and PW-2 had gone to Najibabad and were getting their tyre repaired at the shop of a Muslim shopkeeper. There was light from the electricity bulbs at the time at around 9.30 PM. In his further deposition, he had stated that while the tyre was being got repaired in the relevant shop, the deceased and he himself were standing in front of the shop which a little away from the puncture shop and was locked. He has stated in his deposition that from the side of Najibabad i.e. from the south of the shop, the accused-appellant Surat Singh and three others came towards the deceased and Sohan Lal and there the accused exhorted his three men who had accompanied him and said "Maaro Saale Ko Yahi Jaswinder Hai". The three persons who accompanied the accused fired on Jaswinder and the bullets hit Jaswinder and also the PW-2. Jaswinder died on the spot and the accused persons ran away to the side of Kotdwar which was north of the shop. A lot of blood collected at the place of incident. From the various individuals who had collected around the place of incident, the PW-2 requested one person to write the report for him and he dictated the report to that person. After having written down the report, the person who had written the report read out the report to PW-2 and thereafter he had put his thumb impression. Thereafter it has been stated that PW-2 took the report to the police station and from there he was taken to the hospital by the police and the medical examination of PW-2 was done. He has also deposed that in the First Information Report he had stated that Jaswinder and he himself were standing outside the shop where the puncture was being repaired. He has also stated that when the assailants had come from the southern side of the shop i.e. from the side of Najibabad, the deceased and PW-2 were standing northwards towards Kotdwar. He has stated that from the police station, he was taken to the hospital on a rickshaw. After the medical examination, the police had taken the PW-2 to the place of incident. He has further stated in his deposition that the affidavit (Paper No.14/2-Kha) which is alleged to have been filed by him on 4.11.1996, was not in fact filed by him. He has stated that certain persons from the side of the accused had forcibly got him photographed for the affidavit. The fact that he was forcibly photographed, had also been reported orally by him to the Station House Officer, Govindgarh, Punjab. He has stated that he had asked the police people that he had to get the report lodged and they had on his dictation written the report. He has stated that it took 10 to 15 minutes to get the report lodged and after the report was lodged, he also signed on the report. He has stated that because of his injuries, blood was oozing out. However, it was stated that there was no blood on the report. He has stated that when he was photographed, he was sitting in an Ambassador Car. He had not specifically got himself photographed. He has stated that he had recognized the accused Surat Singh as he was living opposite the house of the deceased. He has further stated that he did not know the name of the father of the deceased and the accused. Still further he has stated that he did not know that how the name of the father of the accused was there in the First Information Report.

PW-3 is Constable Subhash Chand. He was given the responsibility to take the dead body to Bijnor and to get the post-mortem done. He has stated that he had taken the dead body from the place of incident on a tempo and reached Bijnor at 9.30 AM. He has stated that it was wrong that he had started from Najibabad at 10.00 AM next day and reached Bijnor at 1.30 PM. He, however has stated that he had not got the facts registered in the GD that the tempo had broaken down.

PW-4 Rajendra Singh is the Sub-Inspector and has stated that he had filed the Panchayatnama.

PW-5 is the Station House Officer Charan Pal Singh who was posted at Najibabad. He has stated that he had arrested the accused on 20.3.1996.

PW-6 Brahmpal Singh is a Constable who was the bodyguard of the accused. He has stated that he and Constable Gangadas were posted in March 1996 for guarding Surat Singh and he has stated that three or four persons used to always come to Surat Singh. They were Pukhraj, Mahipal @ Pappu and Sunil and whenever they came, the accused used to talk to them while the guards were away. He has stated that on 18.3.1996 he was on duty in the Guest House of the Zila Parishad of Najibabad and on that date Pukhraj, Mahipal and Sunil had come to meet Surat Singh. The accused had talked to them at a certain distance from his guards and thereafter had instructed the guards that as he had his own gun, there was no requirement of the PW-6 and other guards. He had also stated that he was absolutely safe and did not require any gunner.

PW-7 is the doctor who had conducted the post-mortem on the body of the deceased.

Learned counsel for the appellant has submitted that the PW-2-Sohan Lal was the sole witness on the basis of whose statement, the conviction order had been passed. He has submitted that the PW-2 had assigned the role of exhortation to the accused/appellant. Learned counsel for the appellant states that the exhortation was a figment of imagination of the PW-2 and the role of exhortation as had been alleged by PW-2 was absolutely unnecessasry. PW-2 has stated that the accused exhorted three persons to fire and upon firing by the three persons, Surat Singh had died. Learned counsel for the appellant states that if three persons had to fire, they would have fired on the deceased even without any exhortation by the accused. He submits that definitely the three persons were knowing the deceased person. This, learned counsel for the appellant states, becomes apparent because when the exhortation was "Maaro Saale Ko Yahi Jaswinder Hai" and if the three persons who were firing did not know the deceased Surat Singh, then they could have fired on PW-2 Sohan Singh as well if they had not known who Jaswinder was. He, therefore, submits that the story of exhortation has no legs to stand. Furthermore, learned counsel for the appellant states that exhortation is a weak piece of evidence. When there is rivalry between two persons then it is quite often very easy to implicate the person with whom the other person has a rivalry by giving him the role of exhortation. Learned counsel submits that when the deceased had died and the assailants had run away, then implicating an innocent person as a person who had exhorted was very easy. Learned counsel for the appellant, therefore, states that unless the evidence in respect of exhortation is absolutely clear, cogent and reliable, conviction cannot be recorded against the person who had allegedly only exhorted the actual assailants. In this regard, learned counsel for the appellant has relied upon the decision of the Supreme Court in Jainul Haque vs. State of Bihar reported in AIR 1974 SC 45.

Learned counsel for the appellant further states that even the exhortation, if is believed to be there, then it becomes very difficult to implicate a person for the offence of murder under section 302 IPC. He states that when the words "Maaro Saale Ko Yahi Jaswinder Hai" were used, then it could be presumed that he never meant that the deceased had to be actually killed. In this regard, learned counsel for the appellant relied upon the decision of the Supreme Court in Matadin & Anr. vs. State of Maharashtra reported in (1998) 7 SCC 216.

Learned counsel for the appellant thereafter stated that the conviction on the basis of the testimony of a single witness should be done with lot of circumspection. He submits that witnesses could be divided into three categories :-

1. wholly reliable;

2. wholly unreliable; and

3. neither wholly reliable nor wholly unreliable.

Learned counsel for the appellant states that if the sole witness is "wholly reliable", the Court would not have any difficulty in basing its judgment on the wholly reliable witness. If the witness is of the second category i.e. "wholly unreliable", then also there was no difficulty for the Court to come to a conclusion. It is only in the third category that the Courts have to be circumspect and have to look for the corroboration in material particulars by reliable testimony; direct or circumstantial. In the instant case, learned counsel for the appellant has stated that in the First Information Report, the name of the father of the accused had been given whereas in the cross-examination, PW-2 at page 39 of the Paper-Book, has stated that he did not know the name of the father of the accused. He goes to the extent of saying that he did not know as to how the name of the father of the accused was mentioned in the FIR. Furthermore, learned counsel for the appellant has stated that the PW-2 had given, on 4.11.1996, an affidavit which was placed by the defence on record as evidence that the PW-2 was wrongly implicating the accused persons. However, from the record, PW-2 had shown that on 2.12.1996 he had given a statement that he was withdrawing the earlier affidavit dated 4.11.1996. Thereafter learned counsel for the appellant states that with regard to the coercion in getting himself photographed, the PW-2 has stated that he had reported that matter orally to the Police in Punjab. Further learned counsel for the appellant states that in the FIR, he had stated that the deceased and the PW-2 were standing at the shop where the puncture was being repaired but subsequently in the cross-examination he had stated that they were standing in front of another shop, the shutter of which was down and was locked. Learned counsel for the appellant stated that this he probably was saying because there were, in the site plan, bullet marks on the shutter of the closed shop. Learned counsel, therefore, states that if the statement made in the FIR was different from the statement made in the cross-examination then the witness become unreliable. Learned counsel for the appellant has further stated that if the PW-2 was bleeding profusely, then the complaint which he had filed should have some blood marks. Further learned counsel for the appellant states that if the FIR is seen then it would become clear that it was scribed by one Anil Goyal whereas in the cross-examination, PW-2 had stated that he had got the report written by some police official. Learned counsel has also stated that the injury report shows that at the time when the injured PW-2 was getting his injuries examined then only Head Constable Virendra Kumar and Constable Yashvir Singh were present. From where Anil Goyal had appeared and written the FIR was not clear. He also submits that Anil Goyal never appeared in the witness box and no effort was made by the prosecution to search him out and to make him appear in the witness box. Learned counsel for the appellant, relying upon a judgment of the Supreme Court in Vadivelu Thevar vs. The State of Madras reported in AIR 1957 SC 614, therefore, states that when the witness was neither wholly reliable nor wholly unreliable, then it was very unsafe to rely upon that witness and convict the accused. He submits that it was all the more unsafe where witness was the sole witness.

Learned counsel for the appellant thereafter has submitted that it could not be ruled out that the police had itself written the FIR and had implicated the accused for reasons best known to it. Learned counsel submits that when the PW-2 himself was stating that if the police had written the FIR to his dictation then how the name of Anil Goyal appeared was not clear. Still further, relying upon the testimony of PW-3, learned counsel for the appellant submits that the dead body was to be taken along with all the documents to Bijnor for post-mortem at 10.00 pm. The distance between Bijnor and Najibabad was only around 60 kilometers but the body reached Bijnor at 9.30 AM next day. This shows that the police had taken time to implicate the accused and had lodged an ante timed FIR. Learned counsel for the appellant further states that the police had tried to implicate Sunil Kumar and Mahipal @ Pappu as assailants but they failed to get them convicted as Sohan Lal and Sarvjeet Singh who had tried to identify them in the identification parade, failed to identify the two persons Sunil Kumar and Mahipal as assailants. He, therefore, submits that the police was trying to implicate one individual after the other for no reason whatsoever. In the instant case, learned counsel for the appellants, therefore, submits that the whole case becomes absolutely doubtful.

It has been further argued by learned counsel for the appellant that the co-accused Pukhraj to whom the role of actual firing was assigned, has been acquitted in Sessions Trial No.546 of 1997.

Sri J.K. Upadhyay, learned AGA, however, submits that exhortation "Maaro Saale Ko Yahi Jaswinder Hai" would have different meanings, if the assailants had only dandas in their hands. In the instant case, he states that, there were guns in the hands of the assailants then the exhortation "Maaro Saale Ko Yahi Jaswinder Hai" would definitely mean that the gun had to be used. He further submits that PW-2 was an injured witness and the testimony of an injured cannot be lightly done away with. He, therefore, submits that even if the accused was not directly involved in the offence of murder, he should be punished under section 34 IPC for being accompanied with assailants.

Sri I.K. Chaturvedi, learned Senior Counsel assisted by Sri Saurabh Chaturvedi, learned counsel appearing for the informant also adopted the arguments of the learned AGA. He submits that it mattered little that whether the name of the father was known to the PW-2. He further submits that PW-2 was a reliable witness as he was an injured witness and there was no harm if the accused was punished for exhortation. He also submits that no adverse inference could be drawn if the PW-2 had submitted an affidavit on 4.11.1996 and thereafter had withdrawn the same on 2.12.1996. He submits that there was sufficient light for the PW-2 to see as to who was present and who was not present and, therefore, it could not be said that he was a doubtful witness or he was giving witness for some extraneous reasons.

Having heard Sri G.S. Chaturvedi, learned Senior Counsel and Sri V.P. Srivastava, learned Senior Counsel assisted by Ms. Saumya Chaturvedi, Sri Ran Vijay Singh and Sri Rajiv Nayan, learned counsel for the appellant; Sri I.K. Chaturvedi, learned Senior Counsel assisted by Sri Jitendra Kumar, learned counsel for the informant and Sri J.K. Upadhyay, learned AGA for the State, we are of the view that the appeal deserves to be allowed. From the arguments made by learned counsel for the appellant, it is clear that exhortation was not required. The Court is of the view that if the assailants were not knowing the deceased and his bodyguard then it would have been in the fitness of things that the person who made the exhortation should have also in addition to just taking the name of the deceased should have said as to how Jaswinder had to be identified. The Court is also of the view that if there were two individuals who were not known to the assailants and the person who was making exhortation intended only one person to get killed then he would not make the exhortation but he would indicate to the assailants by any sign etc. as to which of the two individuals had to be killed. The Court, therefore, finds that exhortation which as it was a weak evidence, as has been held by the Supreme Court in Jainul Haque vs. State of Bihar reported in AIR 1974 SC 45 was not such an evidence which could be used to convict the accused.

The Court is also of the view that when Sohan Lal had given statements to the contrary in the First Information Report then his testimony was not very reliable. In the FIR had had stated that the deceased and the PW-2 were standing at the puncture repairing shop while in the cross-examination only to explain the site-map which states that there were bullet marks on the closed shutter, he states that he and Jaswinder were standing at a place where the shutter was closed. We are, therefore, of the view that he was definitely not a very reliable witness. Furthermore, the Court is also of the view that when the PW-2 in the cross-examination states that he did not know the name of the father of the deceased then the FIR was definitely not lodged by the PW-2 but was the handiwork of the police who had, for some reason or the other, implicated the accused in the case and was also trying to implicate Sunil Kumar and Mahipal @ Pappu as assailants. Such a person, therefore, who is not wholly reliable, his testimony cannot be used for the conviction of an accused without any corroborating evidence. Some more corroboration in the material particulars by some reliable testimony; direct or circumstantial ought to have been there. In the absence of the corroborating evidence, we find that it was absolutely unsafe to convict the accused.

We also find that the police was not above board. Firstly, as has been stated above, the name of the father as was included in the FIR was the result of the handiwork of the police and secondly we find that the dead-body which was sent at 9.30 PM from Najibabad, reached Bijnor next day at around 10.00 AM and there is absolutely no explanation for this delay. The fact about breaking down of the tempo was nowhere recorded in the GD. We also find that the story of exhortation wherein the PW-2 says that the accused had uttered "Maaro Saale Ko Yahi Jaswinder Hai" could not be used to convict the accused. One cannot conclude as to why he had taken the name of only Jaswinder when there were two individuals there. It could have also meant that the deceased was to be only assaulted in some manner and was not to be killed and also; we are definitely of the view that the exhortation was not possibly done as there were two individuals who were unknown to the assailants and, therefore, it was an absolutely a futile exhortation. We further find that when the assailant Pukhraj himself had been acquitted, no purpose would be served in punishing the person who allegedly exhorted the main accused-assailant Pukhraj in Sessions Trial No.546 of 1997.

Under such circumstances, we set aside the judgment and order dated 29.5.1999 passed by the IInd Additional Sessions Judge, Bijnor in Sessions Trial No.193 of 1996 (State vs. Surat Singh). The appellant be released forthwith if he was not required in any other criminal case.

The appeal is, accordingly, allowed.

Order Date :- 25.05.2023

GS

(Siddhartha Varma, J.)

(Manish Kumar Nigam, J.)