IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1437 OF 2001 (Old No.316/1996) Angpal @ Chhanga S/o Chetram, R/o P-73, Irrigation Research Institute, P.S. Gangnaher, Roorkee, Distt. Haridwar ……… Appellant Versus The State ……… Respondent Dated: December 1, 2009 Sri Nagesh Aggarwal, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 13.2.1996 passed by the Addl. Sessions Judge, Roorkee in Sessions Trial No.85/1991, State Vs. Angpal @ Chhanga, whereby the learned Addl. Sessions Judge has convicted the appellant/accused u/s 324 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to one year’s rigorous imprisonment. Co-accused Shashi @ Shashendra was also convicted and sentenced u/s 324 IPC for one year’s R.I. by the same judgment and order. However, the trial of another co- accused Pawan Pal @ Bhagwan Singh was separated from the above trial. 2. I have heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that complainant Gabber Singh (P.W.1) lodged an FIR stating therein that his son Jitendra Singh was coming back from the market, then on the way, three boys, namely, Shashendra, Chhanga (appellant-accused) and Pawan Pal met him and in humorous vein, they took his spectacles. On 23.5.1989, complainant’s elder son Ashok Kumar (PW2) with Jogendra Singh, son of complainant’s brother in law, were coming from the market where Shashendra, Chhanga (the appellant-accused) and Pawan Pal met them at about 5:45 PM on the Tiraha which leads towards I.R.I. and took the spectacles of the complainant’s son, namely, Ashok Kumar. The son of complainant asked the accused that they had already taken spectacles of his brother and now they also want to take his spectacles too. On this, Shashendra told him that they used to take the things in that way and also do not give it back. On this, complainant’s son asked them that it was not good due to which the appellant-accused Chhanga exhorted the co-accused Shashendra and co- accused Pawan Pal caught hold of Ashok and then co- accused Shashendra gave blow of his knife on the stomach of Ashok with the intention to kill him. The son of brother in law of the complainant, namely, Jogendra Singh raised noise on which Anup Narain Sinha and other persons of locality came there and on seeing them, all the three accused ran away from there. The information of this incident was also given to the complainant Gabbar Singh (PW1) by Anoop Narain Sinha. After that the complainant and Joginder Singh took the injured Ashok in the Govt. Hospital, Roorkee in a serious condition and got him medically examined and thereafter they took him at Pal Nursing Home where the medical treatment was provided and after admitting his son in the hospital, the 3 complainant came to lodge the report. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Gabbar Singh on the information given to him by Anoop Narain Sinha on 24.5.1989 at 12:10 PM. On the basis of the FIR (Ex.Ka.1), Head Moharrir Chandra Swarup (PW4) prepared the Chik FIR of the case, i.e. Ex.Ka.4. The entry was also made by him in the G.D., carbon copy of which is Ex.Ka-5. investigation of this case was entrusted to P.W.5 S.I. Mangal Singh. Injured Ashok Kumar was initially medically been examined on 23.5.1989 at 7:50 PM by Dr. S.K. Srivastava (PW3) who after the examination, prepared the injury report Ex.Ka-2. Thereafter, the injured Ashok Kumar was taken to Pal Nursing Home where he was medically been examined by P.W.6 Dr. Rajendra Pal on 23.5.1989 at 10:30 PM who after the examination, prepared the injury report Ex.Ka-8. The I.O. during investigation took in his possession the bloodstained clothes of the injured worn by him at the time of incident and prepared Fard, i.e. Ex.Ka-3. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. The I.O. during investigation, recorded the statements of witnesses and after completing the investigation, submitted the charge sheet, i.e. Ex.Ka-7. 4. After receiving the charge sheet, learned I Addl. Munsif Magistrate, Roorkee committed the case to the court of Sessions on 05.03.1991 after giving necessary copies to the accused as provided under Section 207 Cr.P.C. 5. Learned Addl. Sessions Judge, Roorkee framed the charge against the appellant/accused Chhanga @ 4 Angpal and also against co-accused Shashendra @ Shashi and Pawan Pal @ Bhagwan Singh u/s 307/34 IPC. The charge was read over and explained to accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Gabbar Singh, complainant, P.W.2 Ashok Kumar, injured witness, P.W.3 Dr. S.K. Srivastava, who initially medically examined the injured, P.W.4 H.M. Chandraswarup, who prepared Chik FIR and made entry in the GD, P.W.5 S.I. Mangal Singh, IO of the case and P.W.6 Dr. Rajendra Pal, who also examined the injured. 7. After that the statements of the appellant/ accused and that of co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, no documentary or oral evidence was produced in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Addl. Sessions Judge, Roorkee vide judgment and order dated 13.2.1996 has convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it is pertinent to mention the injuries mentioned on the person of injured Ashok Kumar who was medically been examined by P.W.3 Dr. S.K. Srivastava on 23.5.89 at 7:50 PM and the following injuries were found in the injury report Ex.Ka-2: - 5 “1. Incised wound 3 cm x 1.5 cm on lateral wall of abdomen on left side 6 cm above iliac crest. Depth of wound could not be known as probing not done in the interest of patient. Patient fully conscious, pulse 96/m BP 120/84. Abd. Soft, BS +, Liver dullness + Opinion- The injury is kept under observation, caused by sharp object and is fresh. Patient being referred to Surgeon, SBD Hospital, SRE as Surgeon of CH is on leave.” 10. To prove the above-said medical report, the prosecution has examined P.W.3 Dr. S.K. Srivastava who stated that on 23.5.1989 at 7:50 PM he had medically examined the injured Ashok Kumar and recorded the above-noted injury. He also stated that this injury could be caused at 5:45 PM and could be caused by some sharp edged weapon like knife. He also proved the injury report Ex.Ka-2 prepared by him. 11. After that the injured Ashok Kumar was taken to Pal Nursing Home, Roorkee and was medically been examined by Dr. Rajendar Pal (PW6) on 23.5.1989 at 10:30 PM and the following injury was found in the injury report Ex.Ka-8: - “1. Piercing stab wound at left lumber region, outer aspect 4 cm below the left inter-costal margin, 4 cm x 3 cm x 7 cm, margins sharp fresh, bleeding positive, 6 Patient general condition otherwise positive, he is fully conscious and responsive. Complaining of severe pain around injury. Duration is fresh, nature of injury grievous, caused by sharp cutting instrument. Explorative laprotomy done by Dr. Pratap Singh and myself at 10:30 PM by extending the wound by left renal incision. Wound was found extended upto perennial facia, haemotoma and clots positive around Kidney (Left), clots removed, stitching done in layers drainage tube placed, patient was kept on IV fluids, antibiotics.” 12. To prove the above injury report, the prosecution has examined P.W.6 Dr. Rajendra Pal who stated that on 23.5.1989 at 10:30 PM, he had medically examined the injured Ashok Kumar and recorded the above noted injuries. He also stated that the injuries were fresh and dangerous to life. Injuries could be caused by some sharp edged weapon like knife and also could be caused on the same day at 5:45 PM. On the same day in the night, the operation of Ashok Kumar was conducted by him along with Dr. Pratap. He also proved the injury report Ex.Ka-8. 13. To further prove its case the prosecution has examined P.W.1 Gabbar Singh who stated that on 23.5.1989, his son Jitendra Singh was coming back from the market, then on the way, Shashendra, Pawan Pal and Chhanga @ Om Pal (appellant-accused) met him and in humorous vein, then took his spectacles. On the same day i.e. on 23.5.1989 in the evening at about 5-6 PM, his elder son Ashok Kumar (PW2) along with Jogendra Singh, son of 7 his brother in law, was coming from the market, then those three accused met them near the Tiraha of Pratap Nursing Home and took out the spectacles of his son, namely, Ashok Kumar. His son asked the accused persons that they had already taken spectacles of his brother and now they also want to take his spectacles too. On this, co- accused Shashendra told him that they used to take the things in that way and also do not give it back. On this, his son asked them that it was not good due to which the appellant-accused Chhanga @ Om Pal exhorted the co- accused Shashendra and then co-accused Pawan Pal caught hold of Ashok and after that co-accused Shashendra gave a blow his knife on the stomach of Ashok with the intention to kill him. On the noise raised by Jogendra Singh, Anup Narain Sinha, Virendra Arya and several other persons of locality came there and witnesses the incident. On seeing them, all the three accused ran away from there leaving the injured on the spot. He also identified the accused Shashendar, Pawan and Chhanga (appellant-accused) in the court. The information of this incident was given to him by Anoop Narain Sinha. After that he and Joginder Singh took the injured Ashok in the Govt. Hospital from where he was referred for Saharanpur, however he took his son at Pal Nursing Home. Thereafter, he lodged the report of this incident and he also proved the same i.e. Ex.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 14. P.W.2 is Ashok Kumar who stated that on 23.5.1989 he along with his maternal uncle’s son Jogendra 8 was coming back to his house from the market. On the place of occurrence, Shashendra, Bhagwan Singh and appellant-accused Angpal @ Chhanga met him and started snatching his spectacles. He asked the accused that it was not good on which the appellant-accused Chhanga told him that they used to do the things in that way and co-accused Shashi also reiterated the same thing. Then the appellant- accused Chhanga exhorted other co-accused to kill him and then the appellant-accused Chhanga caught hold of him and co-accused Shashendra gave a blow of knife on his stomach. On raising alarm by him, Anoop Narain Sinha, Virendra Arya and several other persons reached there and on seeing them, the accused ran away from there. This incident had happened at about 5:45 PM. He fell down on the spot. After that his father and maternal uncle’s son Jogendra took him to the Civil Hospital from where he was referred for Saharanpur however, his father took him at Pal Nursing Home. He also stated that the three blows of knife was given to him with intention to kill however only one blow of knife could hit him. This witness was also cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 15. P.W.4 H.C. Chandra Swarup has stated that on the basis of report given by Gabbar Singh Ex.Ka-1, he prepared Chik FIR, i.e. Ex.Ka-4. He also made entry in the G.D., carbon copy of which is Ex.Ka-5. 16. P.W.5 is S.I. Mangal Singh who stated that investigation of this case was entrusted to him. During investigation, he recorded the statements of witnesses and 9 later on the investigation was transferred from him as he was transferred from there. He also proved the site plan Ex.Ka-6 and the charge sheet Ex.Ka-7. 17. After that the statements of the appellant/ accused and that of co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, no oral or documentary evidence was produced in defence. 18. Learned counsel for the appellant-accused argued that as per the above-said evidence the case is not proved by the prosecution beyond reasonable doubt. I do not find any force in this argument for the reason that the injured witness P.W.2 Ashok Kumar has stated in his evidence that 23.5.1989 he along with his maternal uncle’s son Jogendra was coming back to his house from the market. On the place of occurrence, Shashendra, Bhagwan Singh and appellant-accused Angpal @ Chhanga met him and started snatching his spectacles. He asked the accused that it was not good on which the appellant- accused Chhanga told him that they used to do the things in that way and co-accused Shashi also reiterated the same thing. Then the appellant-accused Chhanga exhorted other co-accused to kill him and then the appellant- accused Chhanga caught hold of him and co-accused Shashendra gave blow of knife on his stomach. On raising alarm by him, Anoop Narain Sinha, Virendra Arya and several other persons reached there and on seeing them, the accused ran away from there. This incident had happened at about 5:45 PM. He fell down on the spot. 10 Then his father and maternal uncle’s son Jogendra took him to the Civil Hospital from where he was referred for Saharanpur, however his father took him at Pal Nursing Home, Roorkee. He also stated that the three blows of knife was caused to him with intention to kill however only one blow of knife could hit him. The statement of this witness is reliable and believable and inspires confidence and the same gets full corroboration with the evidence of P.W.1 Gabbar Singh as well as with the medical evidence i.e. injury report Ex.Ka.2 and medical evidence of P.W.3 Dr. S.K. Srivastava who also stated that injury on the person of injured could be caused at 5:45 PM and could be caused by some sharp edged weapon like knife. The injured was thereafter was referred for Saharanpur however the father of injured taken him to P.W.6 Dr. Rajendra Pal at Pal Nursing Home, Roorkee who also medically examined the injured and recorded the injury in the injury report Ex.Ka-8, as referred above, and stated that injury on the person of injured Ashok, which was a piercing stab wound, could be caused by some sharp edged weapon like knife on the same day i.e. on 23.5.1989 at 5:45 PM. He also opined that the injuries were grievous in nature and dangerous to life. On the same day in the night, the operation of Ashok Kumar was also been conducted. Thus, in this way, the medical evidence also fully corroborates the oral evidence of P.W.2 Ashok Kumar. Therefore, the prosecution has been completely successful in proving its case against the appellant-accused beyond reasonable doubt. 19. It was next argued by counsel for the appellant- accused that in the FIR, the role of catching hold has been assigned to Pawan Pal while in the evidence of P.W.2 Ashok Kumar, on whose statement, the appellant-accused was convicted, the role of catching hold has been assigned to 11 the appellant-accused, which creates a doubt. I again do not find any force in this argument for the reason that the FIR of the case was lodged by P.W.1 Gabbar Singh on the hearsay evidence of Anoop Narain Sinha. Whatever Anoop Narain Sinha had disclosed, that was written in the FIR by Gabbar Singh. There may be some minor contradiction in the FIR but that contradiction is not so strong that can discard the evidence of the sole injured witness. As already discussed, the solitary evidence of P.W.2 Ashok Kumar is reliable, believable, natural and inspires implicit confidence. 20. Learned counsel for the appellant further submitted that according to the First Information Report, Anoop Narain Sinha had come on the place of occurrence on hearing the alarm raised by Joginder Singh and P.W.1 Gabbar Singh also stated in his statement that Virendra Arya had come on the place of occurrence while P.W.2 Ashok Kumar also stated that on hearing the noise, Anoop Narain and Virendra Arya had come, however none of them was examined in the trial court and even Joginder Singh, eyewitness of the case, was not examined, which creates a doubt in prosecution story. I again do not find any force in this argument for the simple reason that as per the prosecution case, Joginder Singh and Virendra Arya were reported to be dead while the whereabouts of Anoop Narain Sinha could not be known, hence in view of these facts and circumstances of the case, it was not possible for the prosecution to produce those witnesses in the court and thus no adverse inference can be drawn in the prosecution story. 12 21. It was further argued on behalf of the appellant- accused that the FIR in this case is delayed as the incident is said to be happened on 23.5.1989 at 5:45 PM while the FIR was lodged on 24.5.1989 at 12:10 PM. There is again no force in this argument for the reason that the incident had happened on 23.5.89 at 5:45 PM. Thereafter, the incident was informed by Anoop Narain Sinha to P.W.1 Gabbar Singh, who along with Joginder Singh took the injured Ashok Kumar at Civil Hospital, Roorkee for medical treatment. On the same day i.e. on 23.5.1989 at 7:50 PM, injured was medically been examined and from there he was referred to Saharanpur. However, P.W.1 Gabbar Singh took him at Pal Nursing Home, Roorkee where he was medically been examined at 10:30 PM on the same day. Even on that night, the operation of injured was conducted by P.W.6 Dr. Rajendra Pal along with Dr. Pratap. Consequently, on the next day, the complainant after admitting his son in the hospital, came to lodge the FIR and only after that the FIR could be lodged. Therefore, in view of these facts and circumstances of the case, it cannot be said that there is any inordinate delay in lodging the FIR as the delay stands explained with sufficient cause as per the facts and circumstances of the case. 22. It was next argued by the counsel for the appellant-accused that the trial court has convicted and sentenced the appellant-accused on the basis of the sole testimony of P.W.2 Ashok Kumar and it is not safe to convict the appellant-accused on the basis of sole testimony. This argument advanced by learned counsel for the appellant has also got no force. It is settled principle of law that the conviction can be based on the sole testimony provided it must inspire implicit confidence. I am fortified 13 in my view with the verdict of Hon’ble Supreme Court in the case of Chittar Lal v. State of Rajasthan reported in (2003) 6 SCC 397 in which it has been held that conviction can be based on sole evidence of a witness if it inspires confidence. Para 7 of the judgment is essential to mention here which is quoted as below: - “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 v. 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 PW 3’s name is plausible. Additionally, it is to be noted that in the present case the statement of PW 3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW 3’s testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness, PW 3’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 disproving 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 Alalah. 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 14 echoed in Vadivelu Thevar v. State of Madras, Guli Chand v State of Rajasthan, Vahula Bhushan v. State of T.N., Jagdish Prasad v. State of M.P. and Kartik Malhar v. State of Bihar.” 23. My view further stands fortified with another judgment of Hon’ble Apex Court in the case of Mahendra Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 583 in which in para 11, it has been held as under: - “11. It is now a well-settled principle of law that conviction can be based on the basis of the testimony of a sole eyewitness.” 24. After considering the aforesaid judgments rendered by Hon’ble Apex Court and in view of the evidence discussed above, the argument advanced by learned counsel for the appellant is not sustainable in the eye of law and as per the foregoing discussion, it has been proved beyond any reasonable doubt that the evidence of P.W.2 Ashok Kumar is reliable, believable and inspires implicit confidence and thus the trial court has rightly convicted and sentenced the appellant-accused on the basis of sole testimony of P.W.2 Ashok Kumar. 25. Thus, the prosecution has proved the case against the accused-appellant under Section 324 I.P.C. beyond reasonable doubt and I concur the view taken by the trial court in convicting and sentencing the appellant- accused as discussed above. 26. For the reasons recorded above, the judgment and