IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.411 OF 2001 (Old No.2042/1998) Talib Hussain ……… Appellant Versus The State ……… Respondent Dated: March 22, 2010 Sri S.S. Bhandari, learned counsel for the appellant Sri Amit Bhatt, learned Addl. GA 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 25.8.1998 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No.261 of 1998, State Vs. Talib Hussain, whereby the learned Special Judge/ Additional 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 three years’ rigorous imprisonment. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Tara Dutt Rekhari (P.W.2) lodged an FIR stating therein that his brother Bala Dutt Rekhari (PW1) had a vegetable shop near Shiv Temple. Before three 2 months of lodging of the FIR i.e. on 7.1.1998, some quarrel took place between him and Ajay Verma. On the date of incident at about 6:30 PM, complainant’s brother Bala Dutt Rekhari was sitting in his shop to whom Mahesh and Talib (appellant), local residents of Mohalla, enquired about his brother, on which he replied that his brother was not there at that time. After that the appellant-accused Talib told the complainant’s brother that somebody is calling him on which complainant’s brother followed him. On reaching at the back of house of Pehalwan, appellant-accused Talib started abusing his brother. When Mahesh asked the appellant-accused Talib not to abuse then the appellant-accused Talib pushed him aside and caused injury of knife to complaint’s brother due to which he became severely injured. On the noise raised by complainant’s brother, people from the vicinity took the injured at the hospital and the complainant came to know about this incident in the market. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.2 Tara Dutt Rekhari on 7.1.1998 at 9:10 PM. On the basis of the FIR (Ex.Ka-1), Head Constable Rohitash Kumar prepared the Chik FIR of the case, i.e. Ex.Ka-3. He also made entry in the G.D., carbon copy of which is Ex.Ka.4. The investigation of this case was entrusted to P.W.7 C.P. Pathak. Injured Bala Dutt Rekhari was medically been examined on 7.1.1998 at 7 PM by P.W.6 Dr. L.D. Pant, who prepared the injury report Ex.Ka-5. The I.O. took in his possession the bloodstained clothes of the injured and prepared Fard, i.e. Ex.Ka-2. During the course of investigation the I.O. inspected the place 3 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 against the appellant/ accused in the court, i.e. Ex.Ka-7. 4. After receiving the charge sheet, learned Addl. CJM, Kashipur committed the case to the court of Sessions on 2.06.1998 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. The case was transferred to Special Judge/ Addl. Sessions Judge for disposal according to law. 5. Learned Special Judge/Addl. Sessions Judge, Nainital has framed the charge against the appellant/ accused Talib Hussain u/s 307 IPC. The charge was read over and explained to appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Bala Dutt Rekhari, injured witness, P.W.2 Tara Dutt Rekhari, complainant and brother of injured, P.W.3 Mahesh Chand Arya, P.W.4 Bhuwan Chandra Upadhyaya, P.W.5 H.C. Rohitash Singh who prepared Chik FIR and made entry in G.D., P.W.6 Dr. L.D. Pant, who medically examined the injured and P.W.7 S.I. Chandra Pal Pathak, IO of the case. 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and 4 stated that he has been falsely implicated. He did not produce any oral or documentary evidence in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Special Judge/Addl. Sessions Judge, Nainital vide judgment and order dated 25.8.1998 convicted and sentenced the appellant/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries recorded on the person of injured Bala Dutt Rekhari in the injury report Ex.Ka-5, which are as under: - 1. “Incised wound 3 cm x 2 cm bone deep present over left side of chest over back, injury kept under observation 2. Incised wound 2 cm x 2 cm x muscle deep present over left side of chest over back 2 cm away from injury no.1, 4 cm away from vertebral column 3. Incised wound 2.5 cm x 1.5 cm present over left side of chest, 3 cm above from injury no.1 over Thoracic region of back, massive haematoma present. 4. Incised wound 1.5 cm x 1.5 cm x Muscle deep present over left side of chest slightly away from vertebral column 5. Incised wound 4 cm x 3 cm x muscle deep present over left side of back over scapula, profuse bleeding present, margins regular and clean cut, everted margins 5 Opinion- All above noted injuries are caused by sharp object, fresh in duration and nature.” 10. To prove the above-said report, the prosecution has examined P.W.6 Dr. L.D. Pant who has stated that on 7.1.1998 at 7 PM he had medically examined the injured Bala Dutt Rekhari who was brought by Ramesh Chandra Pathak and Pankaj Negi and he also proved the injury report Ex.Ka-5 prepared by him. 11. To further prove its case the prosecution has examined P.W.1 Bala Dutt Rekhari who stated that on 7.1.1998 at about 6 PM he was sitting in his shop. Mahesh and appellant-accused Talib came to him and asked that who was ‘Rekhari’. He replied that he was Rekhari. After that the appellant-accused Talib and Mahesh took him downwards the lane where the appellant-accused Talib set aside Mahesh and enquired from him that who had quarreled with Ajay Verma. He replied that the quarrel took place with his brother and compromise has also entered into in the past and he enquired from the appellant-accused as to what concern he had got with that quarrel. After that the appellant-accused Talib took out a knife and gave blow of that knife to him. At that time, nobody was present over there. On hearing his scream, boys from vicinity, namely, Bhuwan Chandra Upadhyaya, Ramesh Chandra Pathak brought him to the hospital where he was medically examined and he remained admitted there for 12-13 days. This witness was cross-examined at length by the defence counsel but nothing has come 6 out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 12. P.W.2 Tara Dutt Rekhari has reiterated the version of the FIR lodged by him. He also proved the report lodged by him i.e. Ex.Ka-1. He also stated that the I.O. took the bloodstained clothes of his brother for which Fard Ex.Ka-2 was prepared. The undershirt of injured was Ex.1 while the shirt was exhibited as Ex.2. 13. P.W.3 Mahesh Chandra Arya and P.W.4 Bhuwan Chandra Upadhyaya have not supported the prosecution case and were declared hostile. 14. P.W.5 H.C. Rohtash Singh who stated that he prepared Chik FIR of this case, i.e. Ex.Ka-3. He also made entry in the G.D., carbon copy there of is Ex.Ka.4. He also wrote the Fard for recovering the bloodstained clothes by the I.O., i.e. Ex.Ka-2. 15. P.W.7 S.I. Chandra Pal Pathak who stated that investigation of this case was entrusted to him. He, during the course of investigation, inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. During the course of investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet, i.e. Ex.Ka-7. 16. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and 7 documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. He did not produce any oral or documentary evidence in defence. 17. Sri S.S. Bhandari, Advocate appearing for the appellant-accused argued that the prosecution has not proved its case beyond reasonable doubt against the appellant-accused. I do not find any force in this argument for the reason that P.W.1 Bala Dutt Rekhari, who is the injured witness of the case, has stated that on 7.1.1998 at about 6 PM he was sitting in his shop. Mahesh and appellant-accused Talib came to him and asked that who was ‘Rekhari’. He replied that he was Rekhari. After that the appellant-accused Talib and Mahesh took him downwards the lane where the appellant-accused Talib set aside Mahesh and enquired from him that who had quarreled with Ajay Verma. He replied that the quarrel took place with his brother and compromise has also entered into in the past and he enquired from the appellant-accused as to what concern he had got with that quarrel. After that the appellant-accused Talib took out a knife and caused injuries by that knife to him. On hearing his scream, boys from vicinity, namely, Bhuwan Chandra Upadhyaya, Ramesh Chandra Pathak had come and brought him to the hospital where he was medically examined and he remained admitted there for 12-13 days. The evidence of this witness is reliable and believable and also gets corroboration from the oral evidence of P.W.2 Tara Dutt Rekhari as well as from the medical evidence of P.W.6 Dr. L.D. Pant and injury 8 report Ex.Ka-5 in which it has been opined by the medical officer that all the injuries found on the person of injured Bala Dutt Rekhari were caused by sharp edged weapon. Thus, the offence punishable u/s 324 IPC is clearly made out against the appellant-accused beyond reasonable doubt and the trial court was correct and justified in convicting and sentencing the appellant-accused as above discussed and I concur the view taken by the trial court in convicting and sentencing the appellant-accused as above discussed. 18. 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.1 Bala Dutt Rekhari 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 well settled principle of law that the conviction can be based on the sole testimony provided it must inspire implicit confidence. I am fortified 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 9 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 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.” 19. 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: - 10 “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.” 20. 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.1 Bala Dutt Rekhari 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.1 Bala Dutt Rekhari, injured witness of the case. 21. In view of the foregoing discussion of the case, the appeal, lacks merit and is accordingly dismissed. The judgment and order dated 25.8.1998 passed by the Special Judge/Addl. Sessions Judge, Nainital, convicting and sentencing the appellant- accused Talib Hussain u/s 324 IPC for three years’ R.I., is hereby made affirmed. The appellant-accused is on bail. Let him be taken into custody forthwith to serve out the sentence as awarded. 22. Let a copy of this order be sent back for compliance. (Dharam Veer, J.) 22.03.2010 Rajeev Dang