Sohan Lal and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Dhananjay Kumar Singh, learned Amicus Curiae for the appellant and Ms. Ruhi Siddiqui, learned Additional Government Advocate were heard at length.

Under Challenge in the instant criminal appeal is the judgment and order dated 30.09.1995 passed by learned IIIrd Additional Sessions Judge, Sitapur, in Sessions Trial No. 78 of 1995, arising out of Case Crime No. 175 of 1994, Police Station Sidhauli, District Sitapur whereby all the appellants were convicted for the offence under Section 302 read with Section 34 IPC and were sentenced with imprisonment for life. However, by the same judgment co-accused Mool Chandra was acquitted of the charge levelled against him.

In brief, the case of the prosecution was that the complainant Sarvesh Kumar Gupta lodged an FIR at Police Station Sidhauli, District Sitapur on 26.07.1994 at about 8:30 a.m. alleging therein that Mool Chandra son of Gobrey Raidas of his village had constructed the house forcibly on the land of Jagrani wife of Sukai Raidas. Jagrani used to cultivate the said land which subsequently was claimed by Mool Chandra and Sohan and both of them used to interfere in the cultivation by Jagrani. Ram Pal (deceased) who was father of the complainant used to side Jagrani. Appellants Gopal and Lallan were helping the other side. This dispute led to the enmity between the deceased and the appellants. On the date of occurrence, the deceased who was Head Master in Primary School Baniyani was going on cycle and the complainant Sarvesh Kumar Gupta was going on another cycle behind him. At about 6:45 a.m. when the deceased Ram Pal and complainant Sarvesh Kumar Gupta reached a little ahead of the hut of Hanumanji then appellant Sohan Lal armed with countrymade gun Mool Chandra armed with Ballam, Gopal and Lallan armed with countrymade pistols came out of the field of Ram Prasad and surrounded the deceased Ram Pal. They all exhorted to eliminate Ram Pal. In the meantime, Sohan, Lallan and Gopal fired with their respective fire arms on Rampal who died instantaneously on the spot. The occurrence was witnessed by Ramendra, Kunwarpal, Jaskaran and Brahma. On the basis of this FIR, the case was registered and investigation proceeded.

The inquest proceedings were conducted and the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 26.07.1994 at 5:15 p.m. The duration of death was about half day old and following ante-mortem injuries were noted by the doctor:-

(1) Gun shot wound of entry 1 c.m. x 1 c.m. x cavity deep on right side front aspect of chest, 2.5 c.m. above from right nipple at 12 O'' clock position. Margin of wound lacerated, inverted and blackened.

(2) G.S.W. of entry 3 c.m. x 3 c.m. on right side abdomen, 5 c.m. outer to umbilicus at 9 O'' clock position. Margin of wound were lacerated, inverted. Blackening of 0.5 c.m. all around the wound.

(3) G.S.W. of exit 1 1/2 c.m. x 0.2 c.m. on left side back of chest 2 c.m. below left angle of scapula.

(4) One abrasion of 2 c.m. x 0.2 c.m. on right back of chest 12.5 c.m. below right lower angle of scapula.

(5) Blackening of 5 c.m. x 5 c.m. on front aspect of right fore-arm just above right wrist joint.

In internal examination, Pleura was found lacerated on both sides. Both lungs were lacerated.

In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries.

During course of investigation on 29.07.1994, on the pointing out of the arrested accused Lallan, who made confession of the offence and also offered to get the weapon of offence recovered, at about 14:30 hours the weapon of offence i.e. countrymade pistol of 315 bore alongwith empty cartridge in the barrel was recovered and its separate memo was prepared.

On the basis of the same, a separate case under section 25(1)(B) of Arms Act was registered and after investigation charge-sheet was filed in that case. The said fard of recovery and charge-sheet under the Arms Act have also been proved in the instant case. But perusal of the record reveals that no charge under Section 25 of the Arms Act was framed against the appellant.

After completing the investigation the charge-sheet was filed against the present appellants and one Mool Chandra.

The case of the defence, as disclosed by their statements recorded under Section 313 Cr.P.C. and by the suggestions given to the witnesses, was that they have been falsely implicated because of enmity and they have not committed the offence.

It is stated by the appellant Lallan that false recovery has been shown against him and on the said date he alongwith Gopal had gone to surrender in the Court of C.J.M. wherefrom he was arrested and false recovery has been shown.

In order to prove its case the prosecution has examined P.W.-1 Sarvesh Kumar Gupta, the complainant, P.W.-2 Amar Singh, witness of fard and recovery, P.W.-3 Ramendra Singh, another eye witness of this incident, P.W.-4 Dr. S.K. Singh who has conducted autopsy on the dead body of Rampal Yadav, P.W.-5 Head Constable Bhagwati Singh who has prepared the chik report and G.D. of this case, P.W.-6 Sub Inspector, Raghuraj Singh who has prepared the site plan and recovery of the countrymade pistol on the pointing out of appellant Lallan under Section 25 of Arms Act, P.W.-7 Sripal Singh, a witness of recovery of countrymade pistol on the pointing out of appellant and P.W.-8 Inspector Shyamdhan Gupta, the Investigating Officer of this case.

On behalf of the appellants no oral evidence was adduced in their defence. However, they have relied upon the Exhibit Kha-1 a copy of affidavit of complaint of Sarvesh Kumar dated 12.09.1994 Exhibit Kha-1 and application moved before C.J.M., Sitapur, (Exhibit Kha-2) by Shyam Dhan, Investigating Officer. In the said application he has denied the allegation that he had arrested them from the court premises which were alleged against him in the application moved by Lallan and Gopal appellants. Shyam Dhan Gupta, the then SHO, Sidhauli has furnished his explanation. The said application and the affidavit (Exhibit Kha-1 and 2) are of no avail in the instant case because the same relates to the recovery of the weapon of offence on the pointing out of accused Lallan. Since the appellant Lallan has not been convicted under Section 25 of Arms Act, therefore, the said evidence for the purpose of the instant appeal loses all its significance.

After appreciating the evidence on record, the trial court has convicted the appellants as above. Hence the instant appeal.

Submission of the learned Amicus Curiae for the appellants was that there is no independent eye witness of this incident while according to the evidence there was inhibited area near the place of occurrence. P.W.-7 says that sister of the deceased was not married in village Hanumanpur so the presence of the complainant on the scene of occurrence becomes doubtful. The other eye witness examined by the prosecution is the first cousin of the complainant. The direction of wound which are alleged to have been reported by the doctor, does not correspond to the manner of assault as alleged by the prosecution and on this ground the learned Amicus Curiae has argued that these points were not properly appreciated by the learned trial court which has rendered its judgment unsustainable under law.

In the alternative learned Amicus Curiae has submitted that the appellants are languishing in jail for the last about 22 years, therefore, if the court comes to the conclusion that the appeal has no force then necessary direction be issued for commutation of sentence by the Government.

Learned Additional Government Advocate has submitted that in the instant case there is direct eye witness account of the incident and the presence of P.W.-1 on the place of occurrence is established. Keeping in view the entire statement of P.W.-3 he could not have witnessed the incident but his evidence supports the presence of P.W.-1 on the scene of occurrence. It is unbelievable that the complainant who happens to be son of the deceased would falsely implicate the other persons sparing the real culprits of the murder of his own father. Learned A.G.A. has also argued that the learned trial court has considered all the aspects of this matter and has rightly convicted the appellants and this appeal has no force.

In the instant case one of the accused namely Mool Chandra has been acquitted by the learned trial court because he was assigned the role of causing injury to the deceased with ballam while no such injury was found on the body of the deceased Rampal, accordingly, the learned trial court extended the benefit of doubt to the said accused. Thus the case of appellant Mool Chandra was quite distinguishable from the other appellants who are before us. Therefore, the acquittal of Mool Chandra would not help the present appellants. P.W.-1 the complainant Sarvesh Kumar Gupta in his evidence has supported the case of the prosecution and has stated that his father was a teacher and was also an agriculturists and at the time of occurrence his father was working as Incharge in the Primary Pathshala, Baniyani and the keys of the school were with him. On 26.07.1994 at about 6:45 a.m. on Tuesday he was going to school and he also used to take with him the documents pertaining to the school if any. On the place of occurrence the articles which his father was carrying, were also recovered and the cycle of the deceased was also recovered. This witness has also stated that his father was going on cycle to Baniyani school. He has also furnished the reasons due to which the appellants nursed grudge against the deceased. He has stated that all the accused persons came out of the field of Ram Prasad, Mool Chandra was armed with ballam Sohan Lal was armed with countrymade gun and the appellant Lallan and Gopal were armed with countrymade pistols. They, after surrounding the deceased exhorted to kill him and Sohan fired on the deceased with his countrymade gun Lallan and Gopal accused also with their countrymade pistols. It was alleged that Mool Chandra wielded ballam but as stated earlier no ballam injury was found on the body of deceased so Mool Chandra was acquitted. But on the body of the deceased two gun shot wounds of entry and one gun shot wounds of exit were found. Blackening in an area of 5 c.m. x 5 c.m. in front aspect of right forearm was also found. The evidence of P.W.-3 does not appear to be of much consequence though in his examination-in-chief he has supported the case of prosecution but in his cross examination he has stated that he heard the cries of the complainant Sarvesh Kumar Gupta P.W.-1 and he heard the noise of three shots from his chak. When he went near his uncle by that time he was dead and his body was lying in the ''Nali'' which was situated in the field of Jagmohan. So virtually, this statement of the witness shows that he has not seen the occurrence but his statement has definitely established the presence of Sarvesh Kumar Gupta i.e. P.W.-1 on the place of occurrence. He has stated that he heard the cries of Sarvesh Kumar Gupta from his chak and P.W.-1 claims that he was present on the place of occurrence. So to this extent P.W.-3 Ramendra Singh supports the case of the prosecution. Law is settled on the point that it is not the quantity of evidence that is required to prove, a particular fact but it is the quality of the evidence that matters for the courts.

Law is settled on the point that even if the evidence of a single witness if found to be wholly reliable even then there would be no illegality or irregularity in recording the conviction of the accused.

Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Deny Bora V. State of Assam reported in , (2015) 1 SCC (Cri.) 293. Hon''ble Apex Court has expressed the legal position in paragraph No. 14 of the aforesaid judgment which is reproduced as under:-

"As we find, the conviction wholly rests on the sole testimony of P.W.-14. It is well settled in law that conviction can be based on the testimony of a singular witness. It has been held in Sunil Kumar v. State (Govt. of NCT of Delhi)[5] [, (2003) 11 SCC 767] 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 Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration. The same principle has been reiterated in Namdeo v. State of Maharashtra by stating that it is open to a competent court to fully and completely rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptable."

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Govindaraju alias Govinda V. State by Sriramapuram Police Station and another reported in , (2012) 4 SCC 722, particularly paragraph Nos. 25 and 26 of the aforesaid judgment has been referred, which reads as under:-

"Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be 21 made to the cases of Joseph v. State of Kerala reported in , (2003) 1 SCC 465 and Tika Ram V. State of Madhya Pradesh reported in (2007) 15 SCC 760.

Hon''ble Apex Court in the case of Vadivelu Thevar V. The State of Madras reported in , 1957 AIR 614, has observed as under:-

"As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. 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 main emphasis of the learned amicus curiae was that the evidence of P.W.-1 deserves to be discarded because the manner of incident as stated by this witness does not tally with the injuries sustained by the deceased. P.W.-4 Dr. S.K. Singh, has proved the postmortem report of the deceased he has stated that from the dead body three pieces of wads and 39 pellets were recovered which were sealed and handed over to the police. He has also stated that the death of the deceased could have been caused on 26.07.1994 at about 6:45 a.m. regarding injury No. 5 he has stated that when the fire is shot and pellets do not hit the body and only gun powder comes in contact with the body then such type of injury like blackening can be caused. In his cross-examination he has stated that the injury No. 1 might have been caused from a distance of 6 feet. He has also stated the direction of wound in his cross-examination but no question was put to this witness that the said injury can not be caused while the deceased was in a standing position. The argument of the learned amicus curiae was that as per the prosecution evidence appellant got down from his cycle and thereafter the fires were shot so the direction should be parallel. But perusal of the site plan shows that the deceased was going on cycle on the mend between two fields. We can take notice of the fact that mend of the field is always higher then normal level of the field which is to stop the flow of water within the field and to demarcate the field from the other fields. The said mend was high and strong enough so that the cycle can be pulled on it. Absolutely no question has been put in cross examination during trial to the eye witness regarding height of the mend or where the deceased was standing whether it was on the mend or in the field. No such question was put to any witness, therefore, only on the basis of presumption that the deceased was standing on the same level and in that position such injury could not have been caused, cannot be a ground to discard the otherwise reliable prosecution evidence of P.W.-1. The other grounds raised on behalf of the appellants before us have been considered by the learned trial court in detail and to repeat the same would to unnecessarily lengthen this judgment without serving any fruitful purpose.

After going through the entire evidence and the impugned judgment, we are fully satisfied that the learned trial court has rightly held the case of the prosecution to be proved and has rightly convicted the appellants so the appeal has absolutely no force and deserves to be dismissed. This appeal is hereby dismissed.

Before parting with the judgment we feel compelled to observe that during trial prosecution has filed the charge-sheet under Section 25 Arms Act but no charge under Section 25 Arms Act was framed against appellant Lallan. During trial evidence was led to prove the case under Arms Act but inspite of that learned trial court failed to frame charge under Arms Act. It was a very negligent approach of the Trial Judge who was conducting a murder trial. Now after lapse of twenty two years, we do not find any justification to remand the case for fresh trial under Arms Act, keeping in view that the appellant has been under detention for a very long period.

Since the appellants have remained in custody for about 22 years, therefore, we hope and trust that the jail authorities shall immediately move the Government for commutation of the sentence in accordance with law by the competent authority in exercise of power under Section 433 Cr.P.C.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.