Kadam Singh And Others vs State
2023 Latest Caselaw 16919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Neutral Citation No. - 2023:AHC:123140
 
Reserved
 
In Chamber
 

 
Case :- CRIMINAL APPEAL No. - 797 of 1982
 

 
Appellant :- Kadam Singh And Others
 
Respondent :- State
 
Counsel for Appellant :- Umesh Narain Misra,Akhilesh Kumar Pandey,Sukesh Kumar,U.C. Mishra
 
Counsel for Respondent :- A.G.A
 

 
Hon'ble Rajendra Kumar-IV,J.

1. The present criminal appeal has been filed by accused-appellants Kadam Singh, Chhotey Singh, Sirnait Singh, Bhurey Singh (Now dead), Indra Bahadur Singh and Mahabir Singh assailing the impugned judgement and order dated 26.03.1982 passed by Sri K.S. Mishra, VI Additional District & Sessions Judge, Etawah in S.T. No.251 of 1979, under Sections 147, 148, 149, 307 I.P.C., Police Station Jaswant Nagar, District Etawah, whereby accused-appellants Kadam Singh, Indra Bahadur and Srinet Singh have been convicted and sentenced under Section 148, 307 and 149 I.P.C. while accused-appellants Mahabir Singh, Chhotey Singh and Bhurey Singh had been convicted and sentenced under Section 147, 307 I.P.C. All the accused-appellants had been sentenced with maximum punishment of 8 years under Section 307 I.P.C. and other sections.

2. Prosecution story in brief as has been set out in F.I.R. is as follows :-

On the date of occurrence i.e. on 12.03.1978 at about 08.00 p.m., injured Suraj Singh and his wife Smt. Chandrawati along with their children were inside the house. The accused-appellants Indra Bahadur and Mahabir arrived at the house of Suraj Singh and called Smt. Chandrawati. She opened the door and asked them what was the work. Both the accused persons told that some thieves were hiding outside her house. The son of Suraj Sigh, namely, Bharat and his mother Smt. Chandrawati came out of the house with a lighted kuppi and both saw that there were no thieves outside the house. In the meanwhile, accused-appellant Indra Bahadur Singh gave a blunt blow to Bharat with Ballam. She asked not to do so. The accused persons were six in numbers. The accused-appellants Bhurey Singh, Mahabir and Chhotey Lal were armed with lathi, while the accused Indra Bahadur Singh was armed with Katta and Ballam, Sirnait Singh with a Ballam and Kadam Singh was armed with farsa. When Suraj Singh came out of his house and accused Indra Bahadur Singh fired upon him with his country made pistol with intention to kill him. Suraj Singh sustained firearm injury and fell down on earth. Smt. Chandrawati pulled her husband, Suraj Singh, inside the house and saved him. All the accused pelted stones on her house and tried to open the door. Accused-appellants fled away leaving the injured, when they saw the witnesses coming.

3. Smt. Chandrawati took the injured Suraj Singh to Police Station Jaswant Nagar where F.I.R. (Ex.Ka-1) was lodged at about 1.15 a.m. G.D. (Ex.Ka-6) was drawn. The injured Suraj Singh was taken to district hospital Etawah where he was medically examined by Dr. Diwakar Sharma, P.W.-5 at 3:40 a.m.

4. Investigating Officer undertook the investigation of the case who collected the evidence, recorded the statement of witnesses, prepared site plan and after completing entire formalities of investigation, filed charge sheet against the accused-appellants.

5. Trial court framed the charge against the accused-appellants under Sections 147, 148, 149, 307 I.P.C. The accused-appellants pleaded not guilty and claimed trial.

6. The prosecution, in order to prove its case, examined, P.W.-1 Smt. Chandrawati, P.W.-2 Suraj Singh, P.W.-3 Mulayam Singh, P.W.-4 Head Constable Nawaj Khan, P.W.-5 Dr. Diwakar Sharma, out of whom P.W. 1 to 3 are the witnesses of fact while rest two others are formal witnesses. Sri Radheyshyam, Rajendra Prasad, Gyan Chandra Mittal and Indra Bahadur Singh have been examined from the side of defence as D.W.-1, D.W.-2, D.W.-3 and D.W.-4 respectively.

7. After appreciating the evidence, oral and documentary on record trial court has convicted the accused-appellants and sentenced them as noted above. Being aggrieved with the impugned judgement, accused-appellants preferred the present criminal appeal.

8. As per C.J.M. Report dated 07.07.2008 and 08.06.2017, appellant nos. 1 to 4 i.e. Kadam Singh, Chhotey Singh, Sirnait Singh and Bhurey Singh have died, thus, their appeal has been abated by order of this Court dated 17.07.2008 and 07.07.2017. Thus, the present appeal survives for appellant no.5 Indra Bahadur, and appellant No. 6 Mahabir Singh.

9. Heard Sri Sukesh Kumar, learned counsel for the accused-appellants and learned AGA for the State and perused the record with the valuable assistance of learned counsel for the parties.

10. Learned counsel for appellants advanced the argument in the following manner :-

(i) The accused-appellants are innocent and have falsely been implicated in the present case. They have committed no offence.

(ii) There was a cross-case of the incident and F.I.R., from the side of accused, has already been lodged against the prosecution but in cross-case, no charge sheet was submitted by the Investigating Officer.

(iii) The witness, said to be injured in the incident, has not been produced from the side of prosecution. Thus, prosecution story has no reason to stand.

(iv) There are several contradictions and omission in statements of witnesses rendering prosecution case doubtful.

(v) There is no strong motive to accused-appellants to commit the present crime. Without motive, there can be no case against the accused-appellants. The accused-appellant Mahabir Singh has not been assigned any role in the incident.

(vi) In event, any case is found against the accused-appellants, they should be dealt with sympathetic consideration, as the incident pertains to the year, 1978 and about 45 years have been passed.

11. Per contra, learned AGA opposed submissions by submitting that PW-1, 2 and 3 are witnesses of fact, who have supported prosecution case; witnesses are natural and reliable; and medical evidence is totally compatible with the ocular evidence. It is a case of direct evidence in which motive has no importance, trial court has committed no error in passing the impugned judgement.

12. Now, I may proceed to examine the witnesses of prosecution.

13. P.W.-1 Smt. Chandrawati states on oath that accused-appellants Mahabir Singh and Chhotey Lal were armed with lathi, accused-appellants Kadam Singh was armed with Farsa, Indra Bahadur was armed with Katta and Ballam while accused-appellant Srinet Singh was armed with Ballam at the time of incident. She further states that accused-appellant Indra Bahadur Singh fired at her husband (injured Suraj Singh) with intention to kill, causing serious fire arm injuries, her husband fell down on earth and that she took him inside the house and bolted the door from inside, thus she proved the presence of accused-appellant Indra Bahadur Singh and Mahabir Singh along with other accused-appellants on the spot. The motive of the incident is said to take some money by accused persons from her son to which he demanded, on this account, accused-appellants became annoyed. She further states that accused-appellant Indra Bahadur Singh fired at her husband, causing fire arm injury of his upper right arm, she bolted the door from inside. All the accused appellants tried to break the door but could not get success. On alarm being made by her, witnesses arrived there, whereupon accused-appellants ran away with their respective weapon. With the help of witnesses, her injured husband was taken to police station and hospital later. She further states that she put up a written tehrir (Ex.Ka-1) to the police station concerned on which F.I.R. was lodged and G.D. entry was made. Her husband was medically examined in hospital.

14. P.W. 2 Suraj Singh, injured stated in his examination-in-Chief on oath that accused-appellant Indra Bahadur Singh was armed with Ballam and Katta, Srinet Singh with Ballam, Kadam Singh with Farsa while accused-appellants Bhurey Singh, Mahabir Singh and Chhotey Lal were armed with Lathi. At the time of incident, all the accused-appellants started beating him. He, specially, states that Indra Bahadur Singh opened fire on him which hit in his right upper arm causing serious fire arm injury, due to which he fell down on the ground. He also states that in the meantime, he wielded lathi in his defence. He further states that on the alarm being raised, witnesses Munna Singh, Madai, Mulayam Singh, Bhagwan Singh and some other villagers also arrived on spot. He further states that some P.A.C. Officials also arrived there and on seeing them, accused-appellants ran way from the spot. According to him, he was taken to hospital where he was medically examined.

15. P.W.3 Mulayam Singh, supporting the prosecution case, states that when he heard the alarm, he reached on spot and saw that Lathi were being exchanged between Suraj Singh and accused-appellant. Witness further supported the prosecution case by saying that accused-appellant Indra Bahadur Singh opened fire at Suraj Singh. Presence of other accused has also been proved by the P.W.-3. Witness further states that Suraj Singh fell down on the ground, having been injured in the incident. He further states that Smt. Chandrawati wife of Suraj Singh took him inside the house and bolted the door from inside. When accused-appellants ran away from the spot, Suraj Singh was taken to police station and hospital later in the injured position. Witness established the presence of all the accused persons on spot.

16. P.W.-5 Dr. Diwakar Sharma states on oath that on 13.03.1978, he was posted as Medical Officer in Government Hospital, Etawah. On that very day, at about 3:40 a.m., he examined Suraj Singh and found fire arm injuries in the right upper arm. Fresh bleeding present and blackening was also present around the wound and there was abrasion also in the left index finger. Injury no. 1 was fire arm injury which was kept under observation and X-ray was advised. Doctor further states that general condition of patient was not good, he prepared the injury report (Ex.Ka-2). He further opined that injuries might be occurred at 8:00 p.m. on 12.03.1978. A lot of blood was lost from the body of injured Suraj Singh, due to which there was dryness.

17. All the three witnesses have supported the prosecution case, establishing the presence of accused-appellants on spot. They were undertaken lengthy cross-examination by the defence side but nothing could be brought adverse on record in the cross-examination, so as to disbelieve their testimonial statement.

18. It appears that there have been some small minor contradiction and omission certainly in their statements of witnesses but they are not to such an extent so as to disbelieve the prosecution story. So far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel and find that the same do not go to the root of case.

19. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

20. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to the case of Smt. Shamim v. State of (NCT of Delhi) (2018) 10 SCC 509.

21. Trial Court also considered the defendce witnesses as D.W.-1, D.W-2, D.W-3 and D.W.-4 but they did not find the prosecution case doubtful.

22. So far as non-examination of other eye witnesses is concerned, in view of Section 134 of Indian Evidence Act,1872 (hereinafter referred to as 'Act,1872'), I do not find any substance in the submission of learned counsel for the appellant.

23. Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she 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 Act, 1872, but if there are doubts about the testimony, Court will insist on corroboration. In fact, it is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.

24. In Namdeo v. State of Maharashtra (2007) 14 SCC 150, Court re-iterated the view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied about the quality of evidence.

25. In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004) 12 SCC 229, Court held that :-

"The legal position in respect of the testimony of a solitary eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it."

26. In State of Haryana v. Inder Singh and Ors. reported in (2002) 9 SCC 537, Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidence-inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court.

27. From the evidence led by both the parties, it is evident that accused-appellant Indra Bahadur Singh opened fire on Suraj Singh with intention to kill him, causing serious fire arm injuries on his upper arm but role of accused-appellant Mahabir Singh in the alleged incident is not established. Although, his presence on spot has been tried to be established. It is subject to common prudence, if he had been on spot, he would have certainly played an active participation in the incident but his active participation in the incident is not proved from the evidence. It is also not found in evidence that he had a common object / intention of firing. His presence on spot is highly doubtful and he is entitled to get benefit of doubt.

28. So far as accused-appellant Indra Bahadur Singh is concerned, it has been well established from the evidence that he was present on spot and with intention to kill, he opened fire at Suraj Singh causing serious fire arm injuries, due to which, he became seriously injured and fell on the ground. The learned Trial Court has taken right view in this regard.

29. Having heard the learned counsel for the parties and having perused the entire evidence on record, I do not find any illegality, irregularity, legal or otherwise, or perversity in the impugned judgement in convicting the accused-appellant Indra Bahadur Singh but I do not see any good ground to convict the accused-appellant Mahabir Singh.

30. In view of discussion made above, the appeal of accused-appellant Mahabir Singh deserves to be allowed while the appeal of accused-appellant Indra Bahadur deserves to be dismissed.

31. Accordingly, the appeal of accused-appellant Mahabir Singh would stand allowed. He is acquitted of charge levelled against him. The appeal of accused-appellant Indra Bahadur Singh is dismissed on merit. His conviction is upheld and maintained.

32. So far as the sentence of accused-appellant Indra Bahadur Singh awarded by trial court is concerned, it is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

33. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of murder and the manner in which it was executed or committed. By the efflux of time, accused-appellant Indra Bahadur Singh must have aged and incident pertains to the year, 1978 and 45 years has elapsed. He should be dealt with sympathetic consideration, if the sentence awarded to him is reduced to five years rigorous imprisonment. It would meet the ends of justice.

34. The criminal appeal of accused-appellant Indra Bahadur Singh is partly allowed and sentence awarded by trial court is reduced and modified to the extent of five years rigorous imprisonment under the alleged offence. Accused-appellant Indra Bahadur Singh shall be taken into custody to serve out the remaining sentence accordingly. The sentence in any other sections, if any, shall run concurrently. The accused-appellant shall be entitled to get benefit of Section 428 Cr.P.C.

35. Certify the judgement along with the lower court record to the court concerned for information and necessary compliance.

Order Date :- 31.05.2023

Manoj

(Rajendra Kumar-IV, J.)