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Allahabad High Court · body

2020 DIGILAW 1025 (ALL)

Jogendra Singh v. State of U. P.

2020-07-13

ANIL KUMAR IX

body2020
JUDGMENT : 1. This criminal appeal has been preferred on behalf of the appellants Jogendra Singh and Jagdish Singh against the order dated 10.12.2019 passed by Sessions Judge Sant Kabir Nagar in Session Trial No. 39 of 2016 (State Vs. Jogendra Singh and others), arising out of Case Crime No. 941 of 2013, P.S. Mehandawal, District-Sant Kabir Nagar whereby both the appellants have been convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for 7 years and fine of Rs. 7,000/-each and in default of payment of fine additional rigorous imprisonment of 3 months. 2. Brief fact of the case as unfolded by the prosecution are that on 11.11.2013 at 8.20 A.M. the first informant Dhrup Chand s/o Surya Nath gave a written report at Police Station Mehandawal, Sant Kabir Nagar stating therein that his father Surya Nath (victim of the case) has executed a sale deed of his land in favour of Jogendra Singh, Jagdish Singh sons of Jhinku Singh and Deep Singh, Piyush Singh sons of Jogendra Singh all residents of Gaganai Rao, P.S. Mehandawal, District Sant Kabir Nagar. Rs.2 lakh of the sale consideration was balanced upon the aforesaid purchaser of the land. His father repeatedly demanded the balance amount, due to this reason in the intervening night of 10/11.11 of 2013 aforesaid accused persons tide both the hands and neck of the Surya Nath with a rope and took his signature on stamp papers and plain papers. On this written report of the informant F.I.R. was lodged on 11.11.2013 at 8.20 A.M. as Case Crime No. 941 of 2013 in Police Station-Mehandawal against the accused persons namely Jogendra Singh, Deep Singh, Piyush Singh and Jagdish Singh under Section 307 and 34 I.P.C. 3. The registration of aforesaid F.I.R. as Case Crime No. 941 of 2013 was endorsed in G.D. of the Police Station as report no. 17 dated 11.11.2013 at 8.20 A.M. The investigation was entrusted to H.C.P. Ishwar Das. During the investigation name of the informant also surfaced as an accused of this offence and Section 147 I.P.C. was also added. 4. On report of Police Station Mehandawal dated 11.11.2013 the victim Surya Nath was medically examined by Medical Officer of C.H.C. Mehandawal. In this medical report except pain on two places nothing abnormal was reported by the Medical Officer. 4. On report of Police Station Mehandawal dated 11.11.2013 the victim Surya Nath was medically examined by Medical Officer of C.H.C. Mehandawal. In this medical report except pain on two places nothing abnormal was reported by the Medical Officer. An objection was raised by the A.P.O. on aforesaid medical examination report and request was made to constitute Medical Board for fair medical examination. On order dated 19.11.2013 of District Magistrate, the C.M.O. constituted a Medical Board of three Medical Officers for medical examination of the victim Surya Nath. Surya Nath was medically examined by the Board of doctors on 21.11.2013 after 10 days of the incident. Medical report is (Ext. Ka-3) which has been proved by PW-3 Dr. O.P. Chaturvedi who was one of the members of the Medical Board. According to the Medical Examination Report dated 21.11.2013 (Ext. Ka-3), at the time of examination following injuries were found on the body of the Surya Nath. (i) Healed scar present on nape of the neck 3.5 cm x 0.5 cm which was 4 cm above of the prominence of 7th cervical vertebrae colour same as that of normal skin. (ii) A depressed healed scar present on nape of the neck size 1 cm x 0.5 cm situated 2 cm to the left of the injury no.1 colour same as that of normal skin. Medical Board opined that both the injuries were completely healed up and duration more than two weeks. 5. The Investigating Officer recorded the statement of the informant and other witnesses, inspected the spot on 11.11.2013 and prepared site plan (Ext. Ka-4). The rope tide in neck and wrist of the injured was taken into possession and recovery memo was prepared which is (Ext. Ka-2). He collected injury report of the victim and copied it in case diary. From the evidence collected during the course of investigation involvement of informant was also found in this offence. After investigation Investigating Officer has submitted charge sheet against Jogendra Singh, Jagdish Singh, Deep Singh, Piyush Singh and Dhrup Chand (the informant), under Sections 147, 307/149, 386/149 I.P.C. 6. Being a session trial case it was committed to sessions by Chief Judicial Magistrate Sant Kabir Nagar on 27.02.2016. Learned Sessions Court framed charges under Section 147, 307/149, 386/149 I.P.C. against the charge sheeted accused persons on 13.06.2016. Being a session trial case it was committed to sessions by Chief Judicial Magistrate Sant Kabir Nagar on 27.02.2016. Learned Sessions Court framed charges under Section 147, 307/149, 386/149 I.P.C. against the charge sheeted accused persons on 13.06.2016. After being aware from the charges framed, each of the charged accused persons who denied from the charges and claimed to be tried. 7. For proving the charges framed against the accused persons prosecution has examined PW-1 Surya Nath (victim), PW-2 Hari Shankar as witness of the fact. Besides them prosecution has examined PW-3 Dr. O.P. Chaturvedi, PW-4 Sub Inspector (Retd.) Ishwar Das, PW-5 Inspector Basant Lal, PW-6 Constable Mohrir (Retd.) Shivji Singh and PW-7 Inspector Rudal Yadav. 8. PW-1 Surya Nath is victim of this incident and father of the accused Dhrup Chand who had lodged the F.I.R. of this case. In statement before the Court, he has stated that this incident occurred at about 12 in night of 10/11.11 of 2013. In the night of 10/11-11.2013 he was sleeping in his house. At about 12 in night he went outside of his house for being ease. When he returned after attending call of nature and was keeping the water container near the water tap, the accused persons namely, Hemant Kumar Singh, Yogendra Singh, Santosh Kumar Singh, Jagdish Singh who were sitting in their grove, came there with 'Dandas'in their hands, their mouth were covered with cloth. They assaulted on him with 'Dandas' in their hands and got his signature on plain paper. After that they were dragging him with rope and at some distance when he became unconscious they left him. At about 6 A.M. On regaining his consciousness he saw that two or three thousands persons were present there, Police was also there, Ram Milan Pradhan unleashed him from the rope. He further deposed that he had sold his field to the accused persons and Rs. 2 lakh of the consideration was due on them. This witness was demanding the balance money, for this reason he was beaten by the accused persons. His son Dhrup Chand (informant) was also involved in commission of this offence. He was medically examined at Government Hospital Mehandawal but he was not examined there properly, therefore, by the order of C.M.O. a medical team was constituted who examined him. This witness was demanding the balance money, for this reason he was beaten by the accused persons. His son Dhrup Chand (informant) was also involved in commission of this offence. He was medically examined at Government Hospital Mehandawal but he was not examined there properly, therefore, by the order of C.M.O. a medical team was constituted who examined him. His statement recorded before the Magistrate u/s 164 Cr.P.C., has also been proved by which Ext. Ka-1. 9. PW-2 Hari Shankar has not supported the prosecution version. He has deposed that there was his signature on recovery memo of the rope but it was taken by the Police on plain paper. 10. PW-3 Dr. O.P. Chaturvedi was one of the members of the Medical Board constituted by the C.M.O. for medical examination of the victim (PW-1). He has proved the medical examination report of the victim Surya Nath which was conducted by Medical Board on 21.11.2013 and is Ext. Ka-3. He has deposed that in medical examination of Surya Nath only two healed up scars were found on neck of the victim and both the scars of the neck of the victim were completely healed up and colour was same as that of the skin. 11. According to the members of the Medical Board, duration of the injuries were more than two weeks from the date of examination. 12. PW-4 S.I. Ishwar Das is the Investigating Officer. After registration of the F.I.R. investigation was entrusted to him. He has deposed that on 11.11.2013 he copied the chik F.I.R. and G.D. in case diary and recorded statement of Constable Shivji Singh writer of the F.I.R., recorded statement of informant Dhrup Chand and inspected the spot at instance of the informant and prepared site plan. He has proved the site plan (Ext. Ka4). He has recorded the statements of Dhaniram and Shiv Narayan. He has prepared recovery memo of the rope used in this offence (Ext. Ka-2). He has copied medical report of the victim in case diary on 12.11.2013. He has recorded the statement of victim Surya Nath in case diary on 12.11.2013 and the statement of victim Surya Nath was again recorded on 16.11.2013 and 21.11.2013. He has copied the medical examination report conducted by Medical Board dated 21.11.2013 in case diary. He has proved copy of the G.D. report no. He has recorded the statement of victim Surya Nath in case diary on 12.11.2013 and the statement of victim Surya Nath was again recorded on 16.11.2013 and 21.11.2013. He has copied the medical examination report conducted by Medical Board dated 21.11.2013 in case diary. He has proved copy of the G.D. report no. 46 dated 21.11.2013 at 20.45 hours regarding addition of name of informant as accused person and Section 147 I.P.C. The rope recovered is material evidence no.1. 13. PW-5 Inspector Basant Lal had taken investigation of this case on 25.01.2014 in pursuance of the order of C.O. Crime Branch and on 10.02.2014 he handed over the investigation to PW-7 Inspector Rudal Yadav. 14. PW-6 Constable Mohrir Shivji Singh has deposed that chik F.I.R. was registered by him, he has proved chik F.I.R. (Ext. Ka-6) and copy of the G.D. report no.17 dated 11.11.2013 at 8.20 A.M. which was prepared by him. He has proved copy of G.D. dated 16.11.2013 and 28.11.2013 which was prepared by Constable Mohrir Deep Narayan Tiwari. 15. PW-7 Inspector Rudal Yadav has deposed that he recorded the statement of Dhrup Chand and Deep Singh on 24.02.2014 and additional statement of victim Surya Nath on 25.02.2014. He has also recorded the statement of witnesses Ram Milan, Harischand, Ramdev, Renuka Devi and Jhinka Devi, he has recorded statement of the accused Jagdish Singh and Dr. O.P. Chaturvedi on 26.02.2014. He has submitted charge sheet (Ext. Ka-10) against Yogendra Singh, Deep Singh, Piyush Singh, Jagdish Singh and Dhrup Chand. 16. Apart from oral evidence documentary evidence has also been adduced by the prosecution which are the statement of victim Surya Nath under Section 146 Cr.P.C. Ext. Ka-1, recovery memo of cotton rope used in this offence Ext. Ka-2, medical examination report of the victim Ext. Ka-3, site plan prepared by the I.O. Ext. Ka-4, copy of the G.D. including informant as accused and addition of Section 147 I.P.C. Ext. Ka-5, chik F.I.R. Ext. Ka-6, copy of G.D. (Registration of F.I.R.) Ext. Ka-7, copy of G.D. report no. 17 dated 16.11.2013 at 10 A.M. Ext. Ka-8, copy of G.D. report no.16 dated 28.11.2013 at 7.30 hours Ext. Ka-9, charge sheet submitted by the I.O. Ext. Ka-10. 17. After completion of the evidence of the prosecution. Ka-5, chik F.I.R. Ext. Ka-6, copy of G.D. (Registration of F.I.R.) Ext. Ka-7, copy of G.D. report no. 17 dated 16.11.2013 at 10 A.M. Ext. Ka-8, copy of G.D. report no.16 dated 28.11.2013 at 7.30 hours Ext. Ka-9, charge sheet submitted by the I.O. Ext. Ka-10. 17. After completion of the evidence of the prosecution. All the incriminating facts and materials were put to the appellants under Section 313 Cr.P.C. They denied the fact and materials and stated that they have been falsely implicated. They have also stated that the prosecution version is false and concocted. The prosecution witnesses have wrongly proved the false and fabricated evidence. 18. Accused Dhrup Chand has specifically stated that the local Police came to his village and pressurize him to go to the Police Station alongwith his wife and had taken written report from them on false facts. When he made complain for the act of the Police to higher authorities, he has been falsely implicated in this case. 19. Only documentary evidence has been filed in defence. The defence has filed certified copies of papers received under provision R.T.I. act (paper no.99 kha/1, 99kha/2) and certified copy of sale deed dated 01.11.2013. 20. I have heard Sri Mohd. Samiuzzaman Khan, learned counsel for the accused/appellants and Sri Arun Kumar Singh, learned A.G.A. for the State as well as perused the record. 21. Learned counsel for the appellants submitted that PW-1 Surya Nath has only been examined as eye witness. His testimony is neither trustworthy nor supported by any other evidence. Conviction of the appellants on such a solitary statement of PW-1 is against law. PW-2 Hari Shankar is also a witness of fact but he has been examined as witness of memo of recovery of rope used in this offence. PW-2 has not supported the prosecution and has been declared hostile witness. Medical evidence is not corroborating the testimony of PW-1 Surya Nath and prosecution version. The written report of the informant which is based on chik F.I.R. of this case has not been proved. The prosecution has totally failed in proving the charges levelled against the appellants. Learned Trial Court has not appreciated the evidence on record in right perspective. 22. Learned A.G.A. has contended that PW-1 Surya Nath is an injured eye witness and has fully supported the prosecution case. The prosecution has totally failed in proving the charges levelled against the appellants. Learned Trial Court has not appreciated the evidence on record in right perspective. 22. Learned A.G.A. has contended that PW-1 Surya Nath is an injured eye witness and has fully supported the prosecution case. PW-2 Hari Shankar is a witness of memo of recovery of rope used in this case. Although, PW-2 has been declared hostile but his whole testimony cannot be discarded on this ground alone. The portion of his statement supporting the prosecution is important and can be used for support of prosecution version. The prosecution version has also been supported by medical evidence, F.I.R. is not substantive piece of evidence, therefore, there would not be any adverse effect of non proving of written report of the informant. Prosecution has proved the charges framed against the appellants and there is no illegality in the judgment and order of the learned Trial Court. 23. To bring home the guilt of the accused/appellants the prosecution has examined as many as seven witnesses in which PW-1 Surya Nath has been examined as an eye witness and victim of the incident. As regards the testimony of solitary eye witness, learned counsel for the appellants contended that it can only be made the basis of conviction if it is found to be wholly reliable. Learned counsel has relied on observations made by the Apex Court in State of Maharashtra Vs. Dinesh (2018) 15 SCC 161 , State of Rajsthan Vs. Babu Meena (2013) 4 SCC 2068 and Prithvi Singh Vs. State Punjab 2012 (76) ACC 680 (SC). In State Vs. Dinesh (supra) Hon'ble Apex Court reiterated the earlier observation that where there is sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other materials on record. Testimony of sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. For relying upon or basing conviction of accused on testimony of sole eye witness, all that is needed is that statement of sole eye witness should be reliable, should not leave any doubt in the mind of Court and has to be corroborated by other evidence produced by prosecution in relation to commission of crime and involvement of accused in committing such crime. 24. In State of Rajasthan Vs. 24. In State of Rajasthan Vs. Babu Meena (2013) 4 SCC 2006 it has been observed by the Hon'ble Apex Court that the oral testimony of witness can be classified into three categories namely (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. 25. In Prithvi Singh Vs. State of Punjab 2012 (76) ACC 680 (S C) it has been observed that if testimony of sole witness found reliable on the touchstone of credibility the accused can be convicted on the basis of such sole testimony. 26. In case in hand it is to be seen that whether testimony of sole eye witness (PW-1 Suryanath) is reliable on the touchstone of credibility and whether it has been supported by any other evidence. 27. There are material variations and contradictions in statement of PW-1 Surya Nath recorded at different stages regarding accused persons present at the time of incident. In his statement recorded under Section 164 Cr.P.C. (Ext. Ka-1) by Judicial Magistrate Sant Kabit Nagar on 20.11.2013, he has stated that total 5 accused persons namely Jagdish, Yogendra, Deepak, Piyush and his son Dhrup Chand were present on the spot and they all were involved in the commission of the offence. This statement has been proved by PW-1 Surya Nath in his statement before the Court. In his examination-in-chief he has deposed that only 4 accused persons namely Hemant Kumar Singh, Jogendra Singh, Santosh Kumar Singh and Jagdish Singh were present there. In his cross-examination he has stated that Dhrup Chand was not present on the spot at the time of incident. 28. This incident is of the month of November. PW-1 Surya Nath has deposed that in the intervening night of 10-/11.11 of 2013 at about 12 hours i.e. at mid night, he came out of his house to attend call of nature when he returned after being ease and was keeping down the water container near the water tap then all the accused persons who were sitting there in their grove came there with 'Dandas' in their hands and caused this incident. Considerable point is that it has not been said that it was a routine of PW-1 to go outside in the mid night for that purpose. Considerable point is that it has not been said that it was a routine of PW-1 to go outside in the mid night for that purpose. There was no prior information to the accused persons that at mid might PW-1 will go outside his home for being ease, therefore, presence of all the accused persons in the grove with 'Dandas' in their hands creates a serious doubt. 29. PW-1 Surya Nath has deposed that the accused persons who were four in number, came on the spot with 'Dandas' in their hands. They chased him and assaulted him with 'Dandas' and hands for about 15 minutes. After beating him they tide him with a rope and dragged with the help of tide rope and on being dragged for a distance he became unconscious. With the help of local Police PW-1 was medically examined in C.H.C. Mehandawal on 11.11.2013 at 9.30 AM. Again he was medically examined on 21.11.2013 by the Board of three Doctors constituted by C.M.O. concerned. First medical report dated 11.11.2013 was not proved by the prosecution, second report dated 21.11.2013 has been proved by PW-3 Dr. O.P. Chaturvedi. In first report dated 11.11.2013 no injury or swelling was found anywhere on his body. In second medical report dated 21.11.2013 of Board of three doctors (Ext. Ka-3) only two fully healed scars have been reported on back side of the neck and colour of that part of the skin was same as that of the normal skin. It is also mentioned in that report (Ext. Ka-3) that the duration of aforesaid two fully healed scars was more than two weeks. The incident is of night of 10/11.11.2013. The medical examination report is of 21.11.2013 and duration of said healed scars was more than two weeks i.e. much before of the date of incident. Here it is also relevant that according to the PW-1 Surya Nath the accused persons (four in number) had beaten him with 'Danda' for about 15 minutes and then dragged him with the help of tide rope but no injury was found on his body parts except two small completely healed up scars, thus there is inconsistancy in prosecution version and medical report of the PW-1. 30. 30. Learned A.G.A. contended that although PW-2 Hari Shankar was declared hostile but his whole evidence cannot be discarded on this ground alone and prosecution is entitled to rely on such part of his evidence which has supported his case. In this case PW-2 Hari Shankar has not been examined as an eye witness but he is a witness of memo of recovered rope (Ext. Ka-2). He has deposed nothing about the incident and stated that Investigating Officer has taken his signature on plain paper under pressure. Testimony of PW-1 has not been supported by PW-2 Hari Shankar. 31. It is submitted by learned counsel for the appellants that the report of the informant which was basis of chik F.I.R., has not been proved by the prosecution. In this regard from the perusal of the record it is evident that the F.I.R. of this case was lodged on written report/application of the informant Dhrup Chand which has not been proved by examining the informant. As discussed earlier that during the course of investigation the Investigating Officer (PW-4) Ishwar Das has changed the position of the informant as a co-accused of this case on the basis of evidence collected by him and has filed charge sheet against him along with other co-accused persons. Original written report/application of the informant Dhrup Chand is available in lower Court record as paper no.4 Ka/2. The chik F.I.R. (Ext. Ka-6) has been proved by PW-6 Constable Shivji Singh who had registered it on the basis of written report paper no.4Ka/2 of the informant. It is well settled that F.I.R. is not substantive piece of evidence it can be used to corroborate the informant under Section 157 of Indian Evidence Act or contradict the witness under Section 145 of the same Act if the informant is called as a witness in the trial. Thus, F.I.R. is valuable piece of evidence in any criminal trial either for corroborating evidence or for contradicting. In the instant case informant has not been examined as a witness, therefore, there was no question of corroboration or contradiction, therefore in fact and circumstances of the present case there would not be any adverse effect of not proving the written report of the informant. 32. Learned counsel for the appellants contended that burden of proving the case beyond reasonable doubt lies on prosecution and the prosecution has not shifted its burden beyond doubt. 32. Learned counsel for the appellants contended that burden of proving the case beyond reasonable doubt lies on prosecution and the prosecution has not shifted its burden beyond doubt. He contended that in this case evidence of solitary eye witness PW-1 Surya Nath is not reliable and there is no other reliable supporting evidence. Relying on observations of Hon'ble Apex Court in Harbeer Singh & anr. Vs. Sheeshpal & others 2016 AIR (SC) 4958, he further submitted that if two views are possible, one pointing to the guilt of the accused and other to his innocence, the view favourable to the accused should be adopted. 33. In case in hand PW-1 Surya Nath has only been examined as eye witness and victim of the case. PW-2 Hari Shankar has been examined only as witness of memo of recovery of rope prepared by I.O., PW-2 has not supported the prosecution and has been declared hostile, medical evidence has also not corroborated the evidence of PW-1 Surya Nath. After giving thoughtful consideration to the evidence of PW-1 Surya Nath, the solitary eye witness, circumstances of the entire case and also the evidence of other prosecution witness, the testimony of PW-1 Surya Nath is not found to be confidence inspiring and beyond suspicion leaving no doubt in the mind of Court. It has not been supported by any other reliable evidence, therefore, it is not safe to convict the appellants solely relying on his evidence. 34. Thus, upon whole some consideration of facts and circumstances of the case, critical evaluation and appraisal of the evidence on record both oral as well as documentary, this Court is of considered opinion that the prosecution has not been able to establish its case beyond all reasonable doubt against the appellants and judgment and order of conviction impugned is therefore liable to be set aside and reversed. 35. The appeal is accordingly allowed. The impugned judgment and order dated 10.12.2019 passed by learned Sessions Judge Sant Kabir Nagar in Session Trial No. 39 of 2016 (State Vs. Jogendra Singh and Others) under Section 307/34 IPC, P.S. Mehandawal, District-Sant Kabir Nagar is hereby set aside and the appellants are acquitted. 36. The appellants are in jail. They shall be released forthwith if not wanted in any other case. Jogendra Singh and Others) under Section 307/34 IPC, P.S. Mehandawal, District-Sant Kabir Nagar is hereby set aside and the appellants are acquitted. 36. The appellants are in jail. They shall be released forthwith if not wanted in any other case. It is further directed that the appellants shall furnish bail bonds with sureties to the satisfaction of the Court concerned in terms of Section 437-A Cr.P.C.