Sunil Singh (in Jail) vs State of U.P.

Vishnu Sahai, J.—Through these appeals, Sunil Singh, Rakesh Pandey, Sunil Bajpai, Udyot Kumar Shukla, Mohan and Santosh Kumar challenge the judgment and order dated 10.12.1998, passed by the I Vth Additional Sessions Judge, Lucknow in Sessions Trial No. 10 of 1994, whereby they have been convicted and sentenced in the manner stated hereinafter:

(a) u/s 148, I.P.C. to one year''s R.I. and to pay a fine of Rs. 500 each ; in default two months'' R.I.

(b) u/s 302/149, I.P.C. to imprisonment for life and to pay a fine of Rs. 1,000 each, in default two months'' R.I.

(c) u/s 323/149, I.P.C. to six months'' R.I. and to pay a fine of Rs. 500 each ; in default two months R.I.

(d) u/s 379, I.P.C. to six months'' R.I. and to pay a fine of Rs. 500 each ; in default two months'' R.I.

Their substantive sentences, on all the counts, have been directed to run concurrently.

It is pertinent to mention that Criminal Appeal No. 42 of 1999 has been preferred by Sunil Singh ; Criminal Appeal No. 43 of 1999 by Rakesh Pandey ; Criminal Appeal No. 46 of 1999 by Sunil Bajpai ; Criminal Appeal No. 47 of 1999 by Udyot Kumar Shukla ; and Criminal Appeal No. 714 of 1998 by Mohan and Santosh Kumar.

Since all these appeals arise out of a common factual matrix and impugned judgment we are disposing them off by one judgment.

Shortly stated, the prosecution case runs as under:

The informant Arun Sinha, P.W. 1 was the friend of the deceased Satish Srivastava. At the time of the incident both of them were living in Chitragupta Nagar, within the limits of police station Krishna Nagar, district Lucknow. There was ill-will between Satish Srivastava on one hand and the Appellants on the other, as in a wedding the former had insulted the latter.

On 17.8.1993 at about 8.45 p.m., while Satish Srivastava on his scooter, along with the informant Arun Sinha was proceeding to his uncle''s house in Prem Nagar and had reached Pavlel Shopping Complex, situated in front of Shiv Mangal''s flour mill, they saw the six Appellants, namely, Sunil Singh, Rakesh Pandey, Sunil Bajpai Udyot Kumar Shukla, Mohan and Santosh Kumar, all friends inter se, armed with knives, standing near the said flour mill. The Appellants asked Satish Srivastava and Arun Sinha to stop for two minutes. Thereupon, Satish Srivastava stopped his scooter. Then Rakesh Pandey told Satish Srivastava that he had insulted him in a barat (wedding procession) and would be dealt with. Thereafter the six Appellants started assaulting Satish Srivastava with knives. When Arun Sinha tried to save him, a knife blow was inflicted on his head. He raised cries, hearing which a number of people of the locality, whose names he did not know, came, but none of them mustered courage to save them. Thereafter, the Appellants took them to a pond situated behind the akhara. Thinking Satish Srivastava to be dead, the Appellants, after leaving them there, ran away. The incident was seen by Arun Sinha and those assembled there in electric light, which was available at the place of the incident.

The evidence of S.I., Om Prakash Agnihotri P.W. 3 shows that on 17.8.1993, while he was on patrol duty on a jeep, he received information about the incident and reached the place of the incident. He found the informant Arun Sinha and Satish Srivastava in a pond situated near akhara. He took them in the jeep to Civil Hospital, Lucknow. On the way Satish Srivastava breathed his last. On reaching Civil Hospital, he left Arun Sinha and the corpse of Satish Srivastava there.

The evidence of the informant Arun Sinha shows that in Civil Hospital, Lucknow, the father and the brother of the deceased Satish Srivastava and one Jitendra Kumar alias J. K. Lal came. He dictated the F.I.R. (Ext. Ka-1) to J. K. Lal and asked him to lodge it at the police station.

The evidence of Subhash Chandra Singh, P.W. 2 shows that on 17.8.1993 he was posted as constable moharrir at police station Krishna Nagar and on the said date the informant Arun Sinha sent a written F.I.R. through Jitendra Kumar, on the basis of which he prepared the chik F.I.R. vide Crime No. 368 of 1993 under Sections 147, 148, 149, 307, 302, 379, I.P.C. It is pertinent to mention that a perusal of the chik F.I.R. shows that the same was lodged, on the said date, at 11.30 p.m. and the distance between the place of the incident and the police station Krishna Nagar was 2-1/2 kilometres.

The evidence of Dr. P. K. Chand, P.W. 6 shows that on 17.8.1993, at 11.30 p.m. he medically examined Arun Sinha at Civil Hospital, Hazaratganj, Lucknow and found on his person the following injuries:

(i) Lacerated wound 5 cm. x 1/2 cm. x done deep over top of head 10 cm. above root of nose. Fresh blood present.

(ii) Multiple abraded contusion all over face and forehead in an area of 16 cm. x 8 cm.

(iii) Multiple abraded contusion all over back in an area of 40 cm. x 25 cm.

(iv) Complaint of pain all over body. No mark of external injury.

In his statement in the trial court, Dr. Chand stated that all these injuries were caused by a hard and blunt object and could have been caused on 17.8.1993 at 8.45 p.m. He also stated that injury No. 1 could be caused by handle of the knife i.e., by a blunt weapon and a danda and injury No. 2 could be the result of friction from fall.

It is pertinent to mention that in his statement, Dr. Chand has not stated how injury No. 3 was caused.

The autopsy on the corpse of the deceased Satish Srivastava was conducted on 18.8.1993 at 12.10. p.m. by Dr. Rajendra Bahadur Singh P.W. 4, who found on it the following ante-mortem injuries:

(i) Multiple incised wounds associated with contusion and laceration of underlying tissues present scattered all over the scalp. Those were seven in number, out of which four were present left to the midline and the remaining three were present on the right side of the head. The size of all these incised wounds was variable ; the smallest one being 4 cm. x 1 cm. x muscle deep to the largest one with dimension 7 cm. x 3 cm. x scalp bone and brain matter deep inside the cut and fractured (paper torn) visible at three places on the scalp. On opening, the margins were cut, the brain was found lacerated and haemotoma present all over the brain. Anterior and middle cranial fossa fractured and deformed.

(ii) Multiple incised wounds ten in number present on the face and forehead including incised wound at root of nose with underlying cut bone. Right and left orbit with lacerated tissue and collapsed eyeballs, commuted fracture of lower jaw with disorganised teeth and injury to oval structures.

(iii) Incised wounds present over the middle phalanges of the left hand ring and middle fingers.

(iv) Four contusions with abrasions on the left leg measuring between 2 cm. x 1 cm. ranging upto 3 cm. x 2 cm.

(v) Three abraded contusions present on the right leg.

(vi) Contusion 4 cm. x 2.5 cm. present on the left shoulder.

In his statement in the trial court, Dr. Singh stated that that the said injuries were sufficient to cause death ; injury Nos. 1, 2 and 3 could be caused by a knife ; and injury Nos. 4, 5 and 6 could be the result of fall or dragging.

The case was investigated in the usual manner by S.I., Om Prakash Agnihotri, P.W. 3, S.I., Jaipal Singh, P.W. 7 and Inspector Incharge K. P. Singh, P.W. 5. S.I., Agnihotri did the initial investigation ; S.I., Jaipal Singh performed the inquest on the corpse of the deceased, on 18.8.1993 at 7.30 a.m. in Civil Hospital, Lucknow ; and Inspector Incharge K. P. Singh did the latter investigation .

On completion of investigation, Inspector Incharge, K. P. Singh submitted the charge-sheet.

Since, in our view, for the decision of these appeals, it is not necessary to advert to the details pertaining to investigation, we have refrained from furnishing them.

The case was committed to the Court of Sessions in the usual manner, where the Appellants were charged on a number of counts, to which they pleaded not guilty and claimed to be tried.

During trial, in all, the prosecution examined seven witnesses.

The solitary eye-witness of the incident Arun Sinha was examined as P.W. 1.

A Court witness, namely, head moharrir Suresh Kumar Mishra was examined as C.W. 1 to prove that on the basis of the F.I.R. lodged by Arun Sinha he registered the case on 17.8.1993 at 11.30 p.m. at police station Krishna Nagar, Lucknow.

In defence one witness, namely, Ikram D.W. 1 was examined to prove that at serial No. 96 in the Hospital Register pertaining to the period 4.8.1993 to 10.10.1996, there is an entry of dead body of Satish Srivastava in the hand writing of Dr. P. K. Chand.

The learned trial Judge believed the evidence of the informant Arun Sinha, P.W. 1 and convicted and sentenced the Appellants in the manner stated in para 1.

Hence, these appeals.

We have heard, Mr. Om Prakash Srivastava and Mr. R. C. Singh for the Appellants and Mr. Jyotendra Mishra, Public Prosecutor for the State of U.P. We have also perused: the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C. ; and the impugned judgment. After the utmost circumspection, we are of the judgment that there appeals deserve to be allowed.

Apart from being manifest from the record, it is also not disputed by the learned Public Prosecutor that the conviction of the Appellants rests solely on the ocular account furnished by the informant Arun Sinha P.W. 1.

We are not oblivious of the fact that in view of the provisions contained in Section 134 of the Indian Evidence Act which provide "No particular number of persons shall in any case be required for the proof of any fact", there is no impediment in the way of the Court in recording/ sustaining a conviction on the testimony of a solitary witness, but we make no bones in observing that this should only be done where the evidence of a solitary witness is truthful and in consonance with medical evidence and probabilities.

In this connection, we would like to advert to the decision of the Supreme Court, in the case of Kartik Malhar, Appellant v. State of Bihar, Respondent (1961) 1 SCC 614, wherein in para 7 it was observed thus:

On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye-witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye-witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye-witness being present. Indeed, the Courts insist on the quality and not on the quantity of evidence.

(Emphasis supplied)

In our view, when the evidence of Arun Sinha is examined on the touchstone of the ratio laid down in the Kartik Malhar''s case (supra) and on the time-honoured norms of appreciation of evidence, it would not be safe to accept it.

We now propose examining Arun Sinha''s evidence and enlisting our reasons as to why his evidence is not trustworthy.

We would firstly like to set out the account furnished by him. His evidence shows: The deceased Satish Srivastava was his friend. At the time of the incident, they were living in Chitragupta Nagar, situated in the main town of Lucknow. On 17.8.1993, Satish Srivastava asked him to accompany him to his (Satish Srivastava''s) uncle''s place in the locality of Prem Nagar. Consequently, Satish Srivastava started his scooter, on which he (Arun Sinha) sat down. When they had reached Pavlel Shopping Complex situated in front of flour-mill of Shiv Mangal, they found the six Appellants, namely, Sunil Singh, Rakesh Pandey, Sunil Bajpai, Udyot Kumar Shukla, Mohan and Santosh Kumar, friends inter-se, armed with knives, standing at the said flour-mill. They asked them to stop for two minutes. Consequently, Satish Srivastava stopped his scooter. Thereupon, Appellant Rakesh Pandey told Satish Srivastava that he had insulted him in the wedding and he would see him. Thereafter all the six Appellants started belabouring Satish Srivastava with knives. When he attempted to save Satish Srivastava, a knife blow was inflicted on his head. He saw the incident in electric light. He raised cries, hearing which a number of persons whose names he did not know came. None of them mustered courage to save them. Thereafter, the Appellants took him and Satish Srivastava to a pond situated behind akhara. Thinking Satish Srivastava to be dead, they left them. Thereafter they ran away. After some time the police came, which took them on a jeep to Civil Hospital, Lucknow. On the way, Satish Srivastava succumbed to his injuries. Leaving the corpse of Satish Srivastava and him at Civil Hospital, the police went away. He then dictated the F.I.R. to Jitendra Kumar, who as also the father and brother of the deceased Satish Srivastava, had reached the hospital.

We have very carefully gone through and analysed the statement of Arun Sinha and in our judgment it is not worthy of belief for the reasons stated hereinafter.

17A. Firstly, the manner of assault as furnished by him both in relation to himself and the deceased Satish Srivastava is in conflict with the medical evidence. A perusal of the F.I.R., which he admitted in cross-examination was read over to him after it had been scribed, shows that therein he has mentioned that he was assaulted with a knife. In his cross-examination, he admitted that the knife blow inflicted on him had penetrated his body. To use his words "Mere Chaku Maara, Jo Ghus Gaya". However, the injuries found on his person by Dr. P. K. Chand P.W. 6, who medically examined him, belie this. In paragraph 8 we have reproduced the injuries found on his person by Dr. Chand. Their perusal shows that he suffered one lacerated wound, two multiple abraded contusions and also complained of pain all over body. It is significant to mention that none of these injuries are the result of penetration by knife and Dr. Chand in his examination-in-chief candidly admitted that all the injuries suffered by him were caused by a hard and blunt object. Realising that injuries attributable to a hard and blunt object had been suffered by him, in his cross-examination, he stated that he received injuries from the handle of the knife. It is significant to mention that during cross-examination, he was asked whether he had mentioned in the F.I.R. or in his statement u/s 161, Cr. P.C. or in his examination-in-chief that he sustained injuries from the handle of knife. He replied that he could furnish no reason as to why he had not mentioned it in the F.I.R. Coming to his statement u/s 161, Cr. P.C., he admitted that it was twice recorded. He admitted that after the Investigating Officer had recorded his first statement, he read it out to him and he realised that in it, it was not mentioned that he was assaulted by handle of knife but he did not remember to get it corrected. He stated in his second statement, he had mentioned this fact to the Investigating Officer and could give no reason why he did not mention it. He hastened to add that the Investigating Officer did not read it after recording it. As regards the omission in his examination-in-chief, he stated that he did not remember to mention it. We make no bones in observing that we are not impressed with his explanation.

In our judgment, on the face of his categorical evidence that knife had penetrated his body, the explanation that he was assaulted with the handle of the knife is a very crude endeavour on his part to explain the blunt weapon injuries which he had sustained. In our judgment, the absence of usual knife injuries, i.e., incised wounds and penetrating wounds on his person, blasts his truthfulness and presence of blunt weapon injuries on his person show that he was belaboured in darkness.

We also find that the manner of assault furnished by him in relation to the deceased is belied by medical evidence. In his cross-examination, he candidly admitted that the knife blows were thrust in the body of the deceased. To use his exact words: "Satish Ko Chaku Se Gode Gode Kar Maar Rahe The. Chaku Satish Ke Sharir Main Ghus Rahe The". In paragraph 9 we have reproduced the injuries found on the person of the deceased and their perusal would show that injury Nos. 1 and 2 were multiple incised wounds ; No. 1 comprised of seven incised wounds and No. 2 of ten incised wounds. In other words, although the deceased sustained seventeen incised wounds but he did not sustain even a solitary stab or penetrating wound, which would have corroborated the evidence of Arun Sinha that knife was used in a thrusting or piercing manner.

In this connection, we would like to advert to paragraph 18 of the decision rendered by the Apex Court in the case of State of U.P. and Another Vs. Jaggo alias Jagdish and Others, , wherein the Appellants inflicted a number of knife blows on the person of the deceased and since not a single or stab wound was caused to him and only incised wounds were found, the Apex Court agreed with the view of the High Court that when Appellants armed with weapons like knife, lathi and pharsa assaulted the deceased, it was extremely improbable that they did not inflict on him a single penetrated wound.

17B. Secondly, from a perusal of his statement, it transpires that he has scant regard for truth. In the F.I.R., he has stated that the incident was witnessed by Soni and Manoj. However, in his examination-in-chief, he did not name them and stated that on hearing his cries, a number of persons from locality whose names he did not know came and in his cross-examination, stated that by mistake he had mentioned the names of Soni and Manoj in F.I.R. Again, we find that although in his F.I.R. and in his statement in the trial court, he has stated about motive, namely, that the deceased Satish Srivastava had insulted the Appellants but in his statement u/s 161, Cr. P.C., he had stated that "Kahan Ki Barat Thi, Aur Kab Satish Ka Jhagra Hua Tha Mujhe Jankari Nahin Hain". When the cross-examiner confronted him with it, he pleaded ignorance.

17C. Thirdly, the version of the incident as furnished by him in his F.I.R. is at variance with that as has been unfolded by him in his cross-examination. In his F.I.R., he mentioned that when he and Satish Srivastava reached the flour-mill in front of Pavlel Shopping Complex, the Appellants asked him to stop his scooter and the incident took place, but in his cross-examination, he admitted that he had wrongly mentioned in the F.I.R. and in his statement u/s 161, Cr. P.C. the said fact.

17D. Fourthly, he has stated that after the Appellants had assaulted him and Satish Srivastava at the flour-mill of Shiv Mangal and took them to the pond near akhara blood fell in between (the distance between the said places is 20 to 25 paces). It is significant to mention that the Investigating Officer did not find any drops of blood or trail of blood between the flour-mill of Shiv Mangal and the pond.

17E. Fifthly, in his cross-examination he admitted that the head of deceased was in his lap while he and deceased were being taken to the Civil Hospital. He also stated therein that his clothes became stained with blood. In our judgment, the best evidence in respect of this claim of his would have been his blood-stained clothes. However, it is pertinent to mention that the Investigating Officer did not seize his blood-stained clothes. In our view, the said seizure would have also lent assurance to his claim of having seen the incident.

In our judgment, when the five infirmities referred to above are examined in the background of the fact that being a victim himself and a friend of the deceased he is an interested witness, it becomes very difficult to accept his evidence.

For the aforesaid reasons, we do not find it safe to accept the evidence of Arun Sinha.

We make no bones in observing that we are not impressed with the submission of the learned Public Prosecutor that since he is an injured witness, his evidence should be accepted. There is no rule of appreciation of evidence which says that the evidence of an injured witness has to be ipso facto accepted. It is well-settled that if an injured witness is not a truthful witness, his evidence cannot be accepted. In this connection, we feel it apposite to refer to observations contained in paragraph 22 of a Division Bench decision of our Court in Vijay Shankar Mishra and Ors. Appellants v. State Respondent 1984 ALJ 1316. The relevant part of said paragraph reads thus:

It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, it is necessary that the injured witness must be held to be a wholly reliable witness. Where in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness''s accounts given by him without independent corroboration by material evidence.

(Emphasis supplied)

In our judgment, the ratio laid down in paragraph 22 of the passage, which we have extracted from Vijay Shanker Mishra and Ors. case (supra), is applicable on all fours to our case.

The learned Public Prosecutor also contended that since Arun Sinha is an independent witness, who had no rancour or ill-will against the Appellant, his evidence should be accepted. Once again we are constrained to observe that the norms of appreciation of evidence are not to the effect that the evidence of an independent witness has to be mechanically accepted. It is only accepted if he passes the test of truthfulness and his evidence is in consonance with medical evidence and probabilities. Where it is not, as is the case here, the mere circumstances that a witness is independent would not result in the acceptance of his evidence.

In this connection, we would like to advert to the case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, wherein in paragraph 33 Chandrachud, C.J. (as he then was) observed thus:

Our judgment will raise a legitimate query: If the Appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes to spin stories out of strong suspicions.

On this question, not only for the ratio laid down but for felicity of expression also we would like to refer to the decision rendered by a learned single Judge of this Court (Chowdhry, J.) in the case of Peare and Ors. (Appellants) v. State (Respondent) 1956 ALJ 945, wherein his Lordship has observed thus:

Now, appreciation of oral evidence, depending as it does on such a variable and inconsistent factor as human nature cannot be reduced to set formulae. Each case must be judged on the totality of circumstances peculiar to it. So judged, there may be reasons inspiring confidence in witnesses despite their apparent partiality to the party producing them and hostility to the party opposite, and despite non-production of others, who may also have been present. On the other hand, there may be circumstances compelling disbelief in a certain version though deposed to by all the available witnesses, and witnesses whom it may not be possible for the party against which they appear to stigmatize on the ground of not being independent.

(Emphasis supplied)

For the aforesaid reasons, we reject this submission also.

Since the learned Public Procedure does not dispute that apart from the evidence of Arun Sinha, there is no other evidence to connect the Appellants with the crime, we are left with no option but to allow these appeals.

In the result, Criminal Appeal Nos. 42 of 1992, Sunil Singh v. State of U.P. ; 43 of 1999 Rakesh Pandey v. State of U.P., 46 of 1999, Sunil Bajpai v. State of U.P. 47 of 1999 Udyot Kumar Shukla v. State of U.P. and 714 of 1998, Mohan and Santosh Kumar v. State of U.P.are allowed. The aforesaid six Appellants are acquitted on all the counts i.e., for offences punishable under Sections 148, I.P.C. 302/149, I.P.C., 323/149, I.P.C. and 379, I.P.C. Their sentences thereunder are set aside. In case they have paid the fine, it shall stand refunded to them.

We are informed that all the six Appellants, namely, Sunil Singh, Rakesh Pandey, Sunil Bajpai, Udyot Kumar Shukla, Mohan and Santosh Kumar are in jail. They shall be released forthwith unless wanted in some other case.