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2023 DIGILAW 2179 (ALL)

Shivnath v. State of U. P.

2023-09-20

NAND PRABHA SHUKLA, SURYA PRAKASH KESARWANI

body2023
JUDGMENT : 1. Heard Sri Swayamanand Sisodiya, learned Amicus Curiae for the accused-appellant and Sri A.N. Mulla, learned AGA for the State/ Opposite party. 2. This Criminal Appeal has been filed praying to set aside the Judgement and Order dated 16.11.2016 in Sessions Trial No. 454 of 2008 (State of Uttar Pradesh vs. Shivnath) relating to Case Crime No. 61 of 2008, under Sections 498-A, 302 IPC, Police Station Chakiya, District Chandauli, passed by the Additional Sessions Judge/Fast Track Court No. 1, Chandauli, whereby, the learned Trial Court has convicted the accused-appellant under Section 302 IPC and sentenced him with life imprisonment and a fine of Rs. 10,000/-and in the event of non-deposit of fine, to undergo further imprisonment of one year. 3. Briefly stated, facts of the present case are that, the accused-appellant Shivnath was a rickshaw puller. The deceased 'Patali' was his wife and sister of the first informant/P.W.-1, Munna son of Rupa. The first informant/PW-1 lodged an FIR being Case Crime No. 61 of 2008, under Sections 498-A, 302 IPC, Police Station Chakiya, District Chandauli on 19.03.2008 at about 15.30 hrs. (3.30 P.M.) alleging that on 19.3.2008, at about 1.00 P.M., his brother-in-law i.e. the accused-appellant Shivnath had committed murder of his sister 'Patali' and when he received this information from his nephew Ghanshyam on telephone then he went to the accused's house and found that his sister 'Patali' was lying dead in a burnt condition outside the hut of the accused-appellant. Accordingly, he lodged the First Information Report in the aforesaid Police Station. The accused-appellant was arrested on the next day i.e. 20.03.2008 who had (1) Superficial burn 4.5 cm x 2 cm on dorsal surface of right thumb and (2) Superficial burn 3.5 cm x 2 cm middle phalanx of right index finger. Blisters found. These burn injuries were found on examination by the Medical Officer of CHC Chakiya, District Chandauli who opined the aforesaid injuries to be superficial injuries about 1% simple in nature. Duration about one day. 4. The inquest report of the deceased 'Patali' was prepared on 19.3.2008 between 15.30 hrs to 16:00 hrs. and the autopsy of her body was conducted by the Medical Officer on 20.03.2008, who found following ante-mortem and post-mortem injuries: Ante-Mortem Injuries A contusion of 3cm x 4 cm on the left nipple on dissecting the area having the contusion, haematoma present on left rib cage. and the autopsy of her body was conducted by the Medical Officer on 20.03.2008, who found following ante-mortem and post-mortem injuries: Ante-Mortem Injuries A contusion of 3cm x 4 cm on the left nipple on dissecting the area having the contusion, haematoma present on left rib cage. Contused swelling of 3cm x 3cm area present at lower part of back of skull on dissecting haematoma having clotted blood present. The cause of death was shown as Coma due to ante mortem injury Nos. 1 and 2 however post mortem burn present. 5. There was extensive burn superficial to deep on head, neck, thorax, abdomen and limbs except upper part of chest and buttocks about more than 80%. As per autopsy report, "shoot particles not found in trachea". 6. Thus, as per medical evidence i.e. autopsy report, the deceased died due to ante-mortem injuries no. 1 and 2 (aforequoted) and not by burn injuries. Non-presence of shoot particles in trachea also clearly indicates that when the deceased received burn injuries, she was not alive. 7. There were two eye witnesses, namely, P.W.-2, Ghanshyam, son of the deceased/accused and P.W.-3, Premsheela daughter of the deceased/accused. During trial, the P.W-2 turned hostile. The eye witness, P.W.-3 stated in her examination-in-chief that on the date of incident in question, her younger brother Ghanshyam, Radhey Shyam and Shiv Kumar, her mother (the deceased) and her father Shivnath were at home and there had been scuffle between her mother and the accused/father. Her father had beaten her mother and locked her in a room and thereafter he sprinkled kerosene oil on the body of the deceased and set her ablaze. He also put the fire on the thatch too. The P.W.-3 was extensively cross-examined but nothing adverse could be culled out in her cross-examination which could either shake confidence of her evidence or support the defence. The P.W.-1 has supported the prosecution case in his evidence. The P.W.-4 and P.W.-5 are witnesses of Panchnama and they confirmed the presence of the accused at the date, time and place of the incident but they stated that while the deceased "Patali" was cooking food, the 'Marwi' caught fire due to wind in which deceased received burn injuries and died. The P.W.-4 and P.W.-5 are witnesses of Panchnama and they confirmed the presence of the accused at the date, time and place of the incident but they stated that while the deceased "Patali" was cooking food, the 'Marwi' caught fire due to wind in which deceased received burn injuries and died. The aforesaid evidence of P.W.-4 and P.W.-5 is contrary to evidence of eye witness P.W.-3 and also does not corroborate with the scientific evidence i.e. the medical evidence (post-mortem report) inasmuch as the burn injuries found on the body of the deceased was post-mortem injuries and not antemortem injuries. The evidence of D.W-1 Kalawati, who is wife of the brother of the accused-appellant Shivnath and D.W.-2 Rajmati (neighbourer) are more or less on the same line as of the evidence of P.W.-4 and P.W.-5 which is not corroborated with the scientific evidence i.e. post-mortem report. Under the circumstances, the scientific evidence i.e. post-mortem report coupled with the evidence of eye witnesses P.W.-3 has to be given weight. 8. As per scientific evidence i.e. post-mortem report, the deceased died due to ante-mortem injury nos. 1 and 2 (aforequoted). Presence of the accused-appellant on the date, time and place of the incident is totally undisputed. He could not lead any evidence explaining the ante-mortem injuries received by the deceased. The eye witness P.W-3 has proved in her evidence that the deceased was beaten by the accused-appellant on the date, time and place of incident. Post-mortem report clearly establishes the cause of death of the deceased to be ante-mortem injuries no. 1 and 2 (aforeqoted). The burn injuries found on the body of the deceased were superficial and were post mortem injuries. This means that the deceased was set ablaze after she died due to ante-mortem injuries No. 1 and 2. This fact is also corroborated with the observation made in the post-mortem report that shoot particles were not found in trachea. This clearly establishes that at the time when burn injuries were received by the deceased, she was not alive. This totally falsifies the story set up by the defence that the deceased died due to burn injuries/fire accident. Under the circumstances, the evidence of P.W-2, P.W-4, P.W-5, D.W.-1 and D.W.-2 cannot be believed as their evidences are untrustworthy. 9. Hon'ble Supreme Court in catena of judgments has held that conviction can be based on the evidence of solitary eye witness. Under the circumstances, the evidence of P.W-2, P.W-4, P.W-5, D.W.-1 and D.W.-2 cannot be believed as their evidences are untrustworthy. 9. Hon'ble Supreme Court in catena of judgments has held that conviction can be based on the evidence of solitary eye witness. 10. In the case of Vadivelu Thevar vs. State of Madras, A.I.R. 1957 S.C. 614 (V 44 C 91 Sept.), Hon'ble Supreme Court has held that: "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 in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence-9th Edn., at Pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.” 11. It has been highlighted in Sunil Kumar vs. State Govt. of NCT of Delhi (2003) 11 SCC 367 that: “As a general rule, the Court can and may act on his testimony of single witness provided he is wholly reliable. There is no legal impediment in convicting a person on a sole testimony of single witness. This is the logic of Section 134 of Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the Courts will insist on corroboration. It is for the Courts to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise." 12. In Mahesh and Another vs. State of Madhya Pradesh (2011) 9 SCC 626 , it has been held by Hon'ble Supreme Court that: "There is no necessity for prosecution to multiply witnesses to prove and establish prosecution case. There is no requirement in law of evidence that any particular number of witnesses is to be examined to proved something. Evidence has to be weighed and not to be counted." 13. There is no requirement in law of evidence that any particular number of witnesses is to be examined to proved something. Evidence has to be weighed and not to be counted." 13. In Amar Singh vs. State (NCT of Delhi) (2020) 19 SCC 165 , it has been held: “As a general rule, the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. This 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. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands edifice of Section 134 of the Evidence Act. The test is whether the evidence is having ring of truth is cogent, credible and trustworthy or otherwise” 14. Section 134 of the Indian Evidence Act, has categorically laid it down that no particular number of witnesses in any case, be required for the proof of any fact. The legislature has mandated, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted”. The Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime would go unpunished. If testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. As the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. As the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. As a general rule, the Court can and may act on the testimony of single witness provided he is wholly reliable. But, if there are doubts about the testimony the Courts will insist on corroboration. The Court can and may act on the testimony of single eye witness provided he is wholly reliable. In the present set of facts, since the evidence of the PW-3 is wholly reliable and also corroborates with medical evidence, therefore, the accused has been correctly convicted by the trial court. 15. During the course of submissions, learned Amicus Curiae attempted to submit that in the event scuffle took place between the deceased and the accused-appellant and in the scuffle the deceased received injuries which according to the prosecution has caused her death, then it cannot be necessarily said that the accused-appellant is guilty of offence under Section 302 IPC particularly when motive and intention to cause death was not established by the prosecution. 16. We do not find any substance in the aforesaid submission of learned Amicus Curiae inasmuch as the eye witness, P.W.-3 and the medical evidence clearly established that the cause of death of the deceased was ante-mortem injuries no. 1 and 2 (aforequoted) and her dead body was set ablaze after she died. The accused-appellant/defence could not lead any evidence which may give rise to disbelieve the medical evidence and the evidence of eye witness, P.W.-3. Therefore, the submission made by learned Amicus Curiae as aforenoted, is rejected. 17. In view of the discussions made above, we are of the firm view that the PW-3 is a sterling, reliable and trustworthy witness. She had not even shaken during cross-examination. The presence of single/solitary eye witness within the house cannot be doubted. Therefore, the submission made by learned Amicus Curiae as aforenoted, is rejected. 17. In view of the discussions made above, we are of the firm view that the PW-3 is a sterling, reliable and trustworthy witness. She had not even shaken during cross-examination. The presence of single/solitary eye witness within the house cannot be doubted. The deceased died due to ante-mortem injuries caused by accused-appellant and to hide the facts and evidences and to mislead the accused-appellant concocted a false story of fire accident and set ablazed the dead body of the deceased so as to give it a colour of fire accident. Thus, we find no error in the impugned Judgement and Order dated 16.11.2016 passed by the Additional Sessions Judge/F.T.C. No. 1 in Session Trial No. 454 of 2008 (State of Uttar Pradesh vs. Shivnath) convicting the accused-appellant under Section 302 IPC, with life imprisonment and a fine of Rs. 10,000/-and on failure to deposit fine, to undergo further imprisonment for another one year. 18. For all the reasons aforenoted, we do not find any merit in this appeal. Consequently, the appeal is dismissed. The appellant is languishing in jail. He shall be kept there to serve out the sentence awarded by the Trial Court and affirmed by us. 19. Office is directed to communicate this order to the court concerned and remit the trial court record forthwith. 20. After the judgement was dictated in open Court learned Amicus Curiae submitted that in view of the law laid down by the Coordinate Bench of this Court in Criminal Appeal No. 544 of 2010 (Raggu Baniya @ Raghwendra vs. State of U.P) decided on 26.10.2021, direction may be issued to the opposite party to consider the case of the accused-appellant for remission inasmuch as the accused-appellant is a very poor person and has remained in prison for more than 14 years and two months. 21. Learned AGA submits that it is always open for the accused-appellant to apply to the competent authority for remission and for that purpose no specific direction is required to be issued by this Court. We agree with the submission of the learned AGA and, accordingly, we leave it open for the accused-appellant to apply for remission in accordance with law and if permissible in law.