RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1494 OF 2001 (OLD NO.1090 OF 1995) Jagdish Singh alias Jaggu and another State of Uttarakhand Versus ……… Appellants .……… Respondent Dated: May 13, 2010 Mr. U.P.S. Negi, Advocate for the appellants Mr. Amit Bhatt, learned Additional Government Advocate for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 15.7.1995 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.47/1988, State Vs. Jagdish Singh @ Jaggu and another, whereby the learned Sessions Judge convicted the appellants/accused Jagish Singh @ Jaggu and Biru @ Vikram Singh under Section 436 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to undergo five years’ rigorous imprisonment. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that the complainant Makan Singh lodged a report in the Police Station Pauri on 5.9.1988 stating therein that last night he, his father, one Chakradhar Kemni, Bihari Labourer and Wahid Kabari, a junk dealear, were sleeping in the room. At about 1:30 AM, some persons knocked his door due to which he wake up and above named persons also got up. Electric bulb was lighting outside the house, in the light of which, he saw appellants/accused Jagdish Singh @ Jaggu and Vikram and one another person standing. The accused persons tried to attack them but they came out from another door and hide themselves in the nearby places. Thereafter the accused persons opened the kerosene oil drums, which were kept in the shop and sprinkled the same on all the four shops and thereafter set fire on the shops as well as on the kerosene drum. The accused persons were very well identified by the complainant in the light of fire and electric bulb. It is alleged that two years ago, Vikram Singh and Harnam Singh had committed murder of his brother Amar Singh. Since then the accused persons were keeping enmity with him and his family. It is alleged that on account of previous enmity, the accused persons burnt his shops. With the same averments, the FIR was lodged by PW1 Makan Singh on 5.9.1988 at 9:30 AM at P.S. Pauri, District Pauri Garhwal. That FIR is Ext.Ka- 1. On the basis of this FIR, Chik FIR of the case was prepared by C/c Sheri Ram, which is Ext.Ka-2. Necessary entries were also made in the G.D., copy of which is Ext.Ka-3. The investigation of this case was entrusted to S.I. Om Prakash, who during the course of investigation, took into his possession some ash and burnt wood from the place of occurrence vide Fard Ext.Ka-4 and prepared the site-plan of the place of occurrence i.e. Ext.Ka-5. The I.O. also recorded the statement of witnesses and on completion of investigation, he filed the charge sheet against the appellants/accused, i.e. Ext.Ka-6. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Pauri Garhwal, committed the case to the court of Sessions on 28.11.1988 after giving necessary copies to the appellants/accused as required u/s 207 Cr.P.C. 5. On 27.3.1989, learned Assistant Sessions Judge, Pauri Garhwal framed the charge of offence punishable under Section 436 r/w 34 of IPC against the appellants/accused. The charge was read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Makan Singh, eyewitness and complainant of the case, P.W.2 Wahid, P.W.3 Vishal Singh, eyewitness and P.W.4 Dinesh Prasad Kothari, Court Mohirror. 7. Thereafter the statements of the appellants/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Pauri Garhwal vide his judgment and order dated 15.7.1995 convicted and sentenced the appellants/accused as mentioned above. Against the said judgment and order dated 15.7.1995, the appellants/accused have preferred this appeal. 9. To prove its case, the prosecution examined P.W.1 Makan Singh, who has stated that his father has a house at Khandiyusain, which is four storeyed and there are four shops in this house. One of the shop was in his possession, in which he was running a fair price shop of foodgrains and kerosene oil. One was tea shop of Chandradhar, one was general merchandise shop and the fourth one was the betel shop. He deposed that on the date of incident he and his father along with one Bihari Labourer were sleeping beneath the shop and in the adjoining room, Chandradhar Kemni and Wahid Kabari were sleeping. Appellants/accused came and knocked the door due to which he got up and opened the door. An electric bulb was lighting outside the house, in the light of which, he saw the appellants/accused Jagdish Singh, Vikram Singh and one other accused person standing outside the door. Appellants/accused asked him to come out but he did not come out. He got Wahid Kabari and Chandradhar Kemni to awake. His father and Bihari Labourer also got up. Accused persons were armed with weapons, so due to fear, they went through the back door and hide themselves in the bushes. After that, the accused persons went on their shops, opened the kerosene oil drums and sprinkled kerosene oil on the four shops and set them at fire. Thereafter, the accused persons ran away from the spot. In the light of fire, they saw the accused persons running. He further deposed that the appellant/accused Vikram Singh and brother of appellant Jagdish Singh, namely, Harnam Singh had committed murder of his younger brother Amar Singh and they were prosecuted for the murder. In the said murder, his father was the witness, due to which, the accused persons were bearing enmity with him and therefore they had set his shops at fire. By the fire, the entire goods kept in all the four shops were burnt to ashes and the house was also burnt and got damaged due to which he suffered a loss of Rs.60,000-70,000/-. Next day, he lodged the report of the said incident in the Police Station Pauri. He has proved the report Ext.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 10. P.W.2 Wahid did not support the prosecution case and was declared hostile. 11. P.W.3 Vishal Singh has stated that on the date of incident i.e. 4.9.1988 in the night, he, his son Makan Singh and Chakradhar Kemni were sleeping in the room situated at ground floor of the house and in the adjoining room Wahid Kabari and Bihari labourer were sleeping. At about 1:30 AM in the night, on hearing the sound of knocking, his son got up and they also got up. His son Makan Singh opened the door and switched on the outside light and saw the appellants/accused Jagdish Singh, Vikram Singh and one other person. The accused persons intended to attack on them but his son closed the door and due to fear of the accused they went out from the room by the back door and hide themselves in the bushes. During this incident, Wahid Kabari and Bihari also got up. From the bushes, they saw that in the fair price shop, four kerosene oil drums were kept, to which the accused persons opened and sprinkled the same on the doors of the house and thereafter set his house/shop at fire. In the light of fire, he saw the appellants/accused Jagdish Singh, Vikram Singh and third accused running. Due to fear, they came out from the bushes after two hours and raised alarm on which the neighbourers came out. Then they tried to extinguish the fire but the fire had spread due to which his entire house and the goods kept in the shops burnt. In this incident, he suffered a loss of about Rs.70,000/-. He further deposed that two years before this incident, Harnam Singh and the appellant/accused Vikram Singh had committed murder of his son and since then, the accused persons were having inimical terms with him. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 12. P.W.4 Dinesh Kothari has stated that in September 1988 he was posted as Constable at Pauri District in different police stations. He is familiar with the hand writing of Constable Clerk Sheri Ram. He proved the Chik FIR Ext.Ka-2 written by Sheri Ram and the copy of G.D. Ext.Ka-3. He further stated that the investigation of this case was conducted by Sub Inspector Om Prakash. He stated that he is familiar with the hand writing of S.I. Om Prakash. He proved the Fard Ext.Ka-4 of taking into possession burnt wood and ash, site-plan Ext.Ka-5 and charge sheet Ext.Ka-6 prepared by S.I. Om Prakash. 13. Thereafter the statements of the appellants/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 14. Learned counsel for the appellants/accused argued that the prosecution has not proved the case against the appellants/accused beyond reasonable doubt under Section 436 r/w 34 IPC. I do not find any force in this argument for the reason that P.W.1 Makan Singh, who is the eyewitness of the case, has stated in the deposition that on the date of incident i.e. 4/5.9.1988 at 1:30 AM in the night he and his father Vishal Singh (PW3) along with one Bihari Labourer were sleeping beneath the shop and in the adjoining room, Chandradhar Kemni and Wahid Kabari were sleeping. Appellants/accused came and knocked the door due to which he got up and opened the door. An electric bulb was lighting outside the house, in the light of which, he saw the appellants/accused Jagdish Singh, Vikram Singh and one other accused person standing outside the door. Appellants/accused asked him to come out but he did not come out. He got Wahid Kabari and Chandradhar Kemni to awake. His father and Bihari Labourer also got up. Accused persons were armed with weapons, so due to fear, they went through the back door and hide themselves in the bushes. After that, the accused persons went on their shops, opened the kerosene oil drums and sprinkled kerosene oil on the four shops and set them at fire. Thereafter, the accused persons ran away from the spot. In the light of fire, they saw the accused persons running. He further deposed that the appellant/accused Vikram Singh and brother of appellant Jagdish Singh, namely, Harnam Singh had committed murder of his younger brother Amar Singh and they were prosecuted for the murder. In the said murder, his father was the witness, due to which, the accused persons were bearing enmity with him and therefore they had set his shops at fire. By the fire, the entire goods kept in all the four shops were burnt to ashes and the house was also burnt and got damaged due to which they suffered a loss of Rs.60,000-70,000/-. Next day, he lodged the report of the said incident in the Police Station Pauri. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the oral evidence of P.W.3 Vishal Singh, who is also the eyewitness of the case. He too have fully supported the prosecution case in his examination. 15. Learned counsel for the appellants/accused further argued that no independent witness of the locality was examined by the prosecution which creates a reasonable doubt in the whole prosecution story. This argument has also got no force for the reason that the said incident was taken place in the night at 1:30 A.M. and it is natural that at that time, the people of the vicinity were sleeping in their houses. Hence, not examining the independent witness, does not create any doubt in the prosecution story. Furthermore, as I have already discussed, the testimony of P.W.1 Makan Singh and P.W.3 Vishal Singh is reliable and the same also inspires confidence. It is the quality and not the quantity of evidence which is necessary for proving or disapproving a fact. I am fortified in my view with the judgment rendered by the Apex Court in case of “Chittar Lal Vs. State of Rajasthan” reported in (2003) 6 Supreme Court Cases 397. Paras-7 and 8 are essential to mention here, which reads as under:- “7. Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan vs. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile. The information was not lodged by an eyewitness. Mental condition of a person whose father has lost his life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW3’s name is plausible. Additionally, it is to be noted that in the present case the statement of PW3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW3’s testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness, PW3’s testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short “the Evidence Act”). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disapproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alahah v. R. The Privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of the Evidence Act. The view has been echoed in Vadivelu Thevar vs. State of Madras, Guli Chand vs. State of Rajashtan, Vahula Bhushan vs. State of T.N., Jagdish Prasad v. State of M.P. and Kartik Malhar vs. State of Bihar. 8. Evidence of PW 3 comes out unscathed on the acid test of credibility and reliability and, therefore, there can be no justification in doubting his testimony. Factual aspect regarding his alleged appearance at the examination has been elaborately analysed by both the trial court and the High Court and it has been found that PW 3 did not appear at the examination and his presence at the spot of occurrence has been established. That being the position, the said plea of the accused-appellant also fails. Though there was no appearance on behalf of the State of Rajasthan, Ms. Minakshi Vij who has appeared as amicus curiae very fairly placed the entire material on record for consideration, and we record our appreciation for the fair approach.” 16. Learned counsel for the appellants/accused further argued that Chakradhar, who was shown to be the eyewitness of the case, was not examined by the prosecution in the trial court. I do not find force in this argument also for the reason that the prosecution had made its all possible efforts to trace out Chakradhar but since he had left the village and had gone somewhere else hence his evidence cannot be recorded in the trial court. Further, as discussed above, the evidence of PW1 Makan Singh and PW3 Vishal Singh are reliable, believable and inspires confidence. For this reason also, if the evidence of Chandradhar was not recorded in the trial court, it will not effect the prosecution case when the credible and reliable evidence of PW1 Makan Singh and PW3 Vishal Singh has been produced by the prosecution to prove the case against the appellants/accused. 17. Learned counsel for the appellants/accused further argued that at the time of incident there was no source of light hence it becomes doubtful to identify the accused persons. I do not find force in this argument due to the reason that in the F.I.R. as well as in the statements of P.W.1 Makan Singh and P.W.3 Vishal Singh, it has come that electric bulb was lighting outside the house, in the light of which, the accused persons were identified by these witnesses. Further, these witnesses have also stated that in the light of fire, which was set by the accused persons, they saw the accused persons running. 18. Thus, in view of the aforesaid discussion, I am of the considered view that the offence punishable u/s 436 r/w 34 IPC is fully proved against the appellants-accused beyond any reasonable doubt and the trial court has rightly convicted and sentenced the appellants-accused as discussed above. I am in full conformity with the findings recorded by the trial court for convicting and sentencing the appellants-accused as above-said discussed. 19. For the foregoing reasons, the appeal is devoid of any merits and is accordingly dismissed. The judgment and order dated 15.7.1995 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.47 of 1988, State Vs. Jagdish Singh and another, in convicting and sentencing the appellants-accused needs no interference by this court and is hereby made affirmed. The appellants are on bail. Their bail is cancelled. Let them be taken into custody forthwith in order to serve out the sentence. However, it is made clear that the period of sentence already served out by them during investigation, trial or appeal shall be adjusted after verifying from the records. 20. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) May 13, 2010 Rajni