CRLA/471/1994 of IQBAL SINGH Vs STATE

RESERVED JUDGMENT

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCRIMINAL APPEAL No. 1738 of 2001 (Old No. 471/1994)

Iqubal Singh @ Pali

S/o Sri Jogendra Singh, R/o 5/II East Rest Camp, P.S. Kotwali, Dehradun.

.…. Appellant/Accused

Versus

……………Respondent

State of U.P.

August 11, 2009

Mr. Sandeep Tandon, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State/respondent.

HON’BLE DHARAM VEER, J.

This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 7.3.1994 passed by the 2[nd]Additional Sessions Judge, Dehradun in Sessions Trial No. 112 of 1992, State v. Iqubal @ Pali & Anr., whereby the appellant/accused Iqubal Singh @ Pali has been convicted under Sections 324 of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for one year. Co-accused Jagmohan @ Ladi was acquitted of the charge levelled against him for the offence punishable under Section 307 read with Section 34 IPC.

2. In brief, the prosecution case is that on 13.6.1991 at 9.50 pm, an FIR was lodged by PW2 Ashish Goel in Kotwali, Dehradun with the averments that at 9.30 pm on that day i.e. 13.6.1991 when he was going to his house via Rest Camp Tyagi Road, he saw crowd in front of the shop of Satpal Sethi, upon which he stopped there. Then he came to know that few minutes ago the appellant/accused Iqubal Singh @ Pali had beaten his

father Rajeshwar Goel (PW1) with fists and also pelted bricks on him during which his father lost his wrist watch, which was either snatched or dropped there. S.I. Tejveer Singh (PW4, the I.O. of the case) was also present on the spot. Thereafter when he started for his house along with his shadow on scooter, then the appellant/accused Iqubal Singh @ Pali, co-accused Jagmohan Singh @ Ladi (acquitted by the trial court) and one unknown person threatened to kill him near the house of Shyam Lal Bhatia. Appellant/accused Iqubal Singh attacked him from the rear side with sharp edged weapon with intention to kill him, in which he received injury on his waist. For his safety, his bodyguard Amar Pal Singh (PW3) fired thrice on appellant/accused Iqubal Singh @ Pali who was fleeing from the spot. Since it was very dark, therefore, he could not ascertain as to whether any of the bullets hit those assailants or not and they successfully fled from the spot taking the advantage of darkness. Thereafter his bodyguard brought him to Kotwali police station.

3. With the aforesaid averments, FIR Ex. Ka-1 was lodged by Ashish Goel, PW2. On the basis of this report, chick FIR Ex. Ka-8 was prepared on the same day i.e. on 13.6.1991 at 9.50 pm by Constable Clerk Dharmpal Singh. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-7. The investigation of this case was entrusted to S.I. Tejveer Singh, PW4. The injured Ashish Goel was medically examined by PW5 Dr. G.S. Rawat on 13.6.1991 at 10.05 pm and the medical report Ex. Ka-6 was prepared. During the course of investigation, the I.O. recovered the bloodstained shirt and banyan of the injured Ashish Goel and prepared fard Ex. Ka-2. Specimen of seal Ex. Ka-3 was also prepared by the I.O. The I.O. also inspected the place of occurrence and prepared the site

plan Ex. Ka-4. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-5 against the appellant/accused Iqubal Singh @ Pali and the co-accused Jagmohan Singh @ Ladi (acquitted by the trial court).

4. Learned Chief Judicial Magistrate, Dehradun after giving the necessary copies of the documents to the appellant/accused and the co-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 22.7.1992. Learned Sessions Judge transferred the case to 2[nd] Additional Sessions Judge, Dehradun for its disposal according to law.

5. Learned 2[nd] Additional Sessions Judge, Dehradun framed the charge against the appellant/accused Iqubal Singh @ Pali and the co-accused Jagmohan Singh @ Ladi (acquitted by the trial court) on 14.12.1992 under Section 307 read with Section 34 IPC. The charge was read over and explained to the appellant/accused and the co-accused, who pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution has examined PW1 Rajeshwar Goel; PW2 Ashish Goel, the injured; PW3 Constable Amarpal Singh, the bodyguard of injured Ashish Goel; PW4 S.I. Tejveer Singh, the I.O. of the case and PW5 Dr. G.S. Rawat, Medical Officer.

7.Thereafter, statements of the appellant/accused and the co-accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they have been falsely

implicated in the case. However, in defence, they did not produce any documentary or oral evidence.

8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned 2[nd] Additional Sessions Judge, Dehradun vide his judgment and order dated 7.3.1994 convicted and sentenced to the appellant/accused as discussed above. Against the aforesaid judgment and order dated 7.3.1994, the appellant/accused has preferred the present appeal.

9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record.

10. Before any further discussion, it would be pertinent to mention the injury found on the body of the injured Ashish Goel (PW2) as stated in the medical report Ex. Ka-6 and the same is reproduced as under:

“Injuries: (1) Incised wound 4.0 cm x 0.8 cm x depth not probed on the left lower back 15.8 cm above & behind the Left Ant, Superior Iliac Spine at 2-O’clock position. Margins are clean cut, bleeding from wound present. Opinion: Injury is fresh, caused by sharp edged object. Kept U.O., advised X ray plain Abdomen – A.P. view in erect posture & X ray pelvis – A.P. view, Pt admitted & referred to Surgeon Ortho, Surgeon both.”

11. To prove the aforesaid medical report Ex. Ka-6, the prosecution has examined PW5 Dr. G.S. Rawat, who has stated that on 13.6.1991 he was posted as Emergency Medical Officer at the Doon Hospital. On that day, Constable Rajveer Singh had brought Ashish Goel (PW2), who was medically examined by him and he noted the abovementioned injury on his body. This witness has

proved the medical report Ex. Ka-6 and further stated that the said injury might have been caused with knife on 13.6.1991 at around 9.30 pm.

12. To further prove its case, the prosecution has examined PW1 Rajeshwar Goel, who has stated that on 13.6.1991 at about 9.15 pm, he was returning to his house from the house of Inspector T.P. Shukla. When he reached in front of the shop of Satpal Sethi, then Iqubal @ Pali met him. When he stopped for buying certain article, the appellant/accused started abusing him and also started beating him with fists. So many people had assembled there and he was let off after their intervention. Thereafter Iqubal left the spot. During that fracas, he lost his watch. When Iqubal had gone from the spot, Inspector Tejveer Singh and Ashish Goel PW2 (son of Rajeshwar Goel) along with his shadow Amar Pal Singh came there. The whole incident was narrated to his son Ashish Goel. Thereafter Ashish Goel left for his house along with his shadow. This witness has further stated that thereafter he left for Kotwali police station to lodge the report and when he reached near the Prince hotel, Amar Pal (PW3) came on scooter along with his son Ashish Goel (PW2) and told him that Iqubal @ Pali had stabbed Ashish Goel in his back. His son Ashish Goel also told him the entire incident of stabbing. Thereafter he along with his son Ashish Goel and Amar Pal Singh went to Kotwali police station, where the report Ex. Ka-1 of this incident was lodged by PW2 Ashish Goel. The said report was written by this witness on the dictation of his son Ashish Goel (PW2). Thereafter police had taken his son to the hospital. This witness was cross-examined at length by the defence counsel but nothing has come out which may create any doubt on his deposition.

13. PW2 Ashish Goel, the injured witness who has stated that on 13.6.1991 at about 9.30 pm, he along with his shadow Amar Pal Singh (PW3) was returning to his home after concluding his work. The shop of Satpal Sethi was situated in the way, where he saw massive crowd whereupon he stopped there. His father Rajeshwer Goel (PW1) was also present there, who told him that Iqubal @ Pali had immediately left that place after beating him. He was also told that he lost his watch in that fracas. At that time, inspector Tejveer Singh (PW4) was also present there. Thereafter he moved towards his house along with his shadow Amar Pal Singh (PW3). As soon as they reached near the house of Shyam Lal Bhatia, Iqubal @ Pali, Jagmohan @ Ladi and one unknown person who were present there started abusing him and threatened him for his life. No sooner had he stopped his scooter than Iqubal @ Pali attacked on his back with some sharp edged weapon. After the attack, Iqubal @ Pali and his companions ran away. His shadow Amar Pal Singh fired thrice on them but since there was darkness, therefore, it could not be ascertained as to whether the fire hit anyone of them or not. His father met him in the way when he was being taken to Kotwali police station in the injured condition by his shadow Amar Pal Singh. He told the entire incident to his father. Thereafter they reached at Kotwali police station where he lodged the report of this incident which was written by his father Rajeshwar Goel (PW1). He had signed on that report Ex. Ka-1. Kotwali police had taken him to Doon Hospital where he was admitted and was treated. The clothes which he had worn at the time of incident got bloodstained and torn. These clothes were taken into possession by the Inspector and were sealed and fard (Ex. Ka-2) was prepared. He had also put his signature on that fard. Sample of seal Ex. Ka-3 was also prepared. This witness has also identified theclothes, viz., shirt Ex. 1 and banyan Ex. 2. This witness was cross-examined at length by the defence counsel but he could not be shaken in his testimony.

14. PW3 Constable Amar Pal Singh has stated that on 13.6.1991 he was working as the shadow of Ashish Goel, PW2. Between 9 to 9.15 pm, he was going along with Ashish Goel to his house in Chandan Nagar by scooter. On the next crossways of Prince hotel, 4-6 persons had assembled and one of them was Rajeshwar Prasad Goel (PW1), who told that the appellant/accused Pali, who was drunk, had come there and beaten him. Thereafter he left for the house of Ashish Goel (PW1) on the scooter and when they reached at the tiraha(juncture of three pathways), he saw three persons, one of them was Sardar and rest two were Monas. Ashish Goel stopped the scooter. One of those three men who was Mona came near the scooter holding something in his hand from which he hit the left shoulder of Ashish Goel. This witness has further stated that then he fired thrice from his service revolver but pleaded ignorance as to whether any of those three bullets hit them or not. Ashish Goel had told him the names of those persons in Kotwali police station. This witness has also stated that since there was darkness at the place of occurrence, therefore, he did not see the face of any of the assailants. He brought Ashish Goel to Kotwali, where he lodged the report. After that this witness was declared hostile.

15. PW4 S.I. Tejveer Singh has stated that on 13.6.1991 he was posted as chauki in-charge, Lakhibag. The investigation of this case was entrusted to him on 13.6.1991. During the course of investigation he had recorded the statements of the witnesses and after inspecting the place of occurrence, prepared the site plan

Ex. Ka-4. The bloodstained shirt and banyan were taken into possession by him at the Doon Hospital and fard Ex. Ka-2 was prepared. This witness has also identified in the court the shirt Ex. 1, the banyan Ex. 2 and the clothe in which the said shirt and banyan were sealed as Ex. 3. After completing the investigation, he filed the chargesheet Ex. Ka-5 against the appellant/accused Iqubal Singh @ Pali and the co-accused Jagmohan Singh @ Ladi (acquitted by the trial court).

16. After that, the statement of the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence.

17. Learned Counsel for the appellant/accused argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for

the appellant/accused due to the following reasons:

(i) That the injured Ashish Goel, PW2 has stated that on 13.6.1991 at about 9.30 pm, he along with his shadow Amar Pal Singh (PW3) was returning to his home after concluding his work. He stopped at the shop of Satpal Sethi where massive crowd had gathered. His father Rajeshwer Goel (PW1) was also present there, who told him that Iqubal @ Pali had immediately left that place after beating him. At that time, inspector Tejveer Singh (PW4) was also present there. Thereafter he moved towards that on 13.6.1991 at about 9.30 pm, he along with his shadow Amar Pal Singh (PW3) was returning to his home after concluding his work. He stopped at the shop of Satpal Sethi where massive crowd had gathered. His father Rajeshwer Goel (PW1) was also present there, who told him that Iqubal @ Pali had immediately left that place after beating him. At that time, inspector Tejveer Singh (PW4) was also present there. Thereafter he moved towardshis house along with his shadow Amar Pal Singh (PW3). As soon as they reached near the house of Shyam Lal Bhatia, Iqubal @ Pali, Jagmohan @ Ladi and one unknown person who were present there started abusing him and threatened him for his life. No sooner had he stopped his scooter than Iqubal @ Pali attacked on his back with some sharp edged weapon. After the attack, Iqubal @ Pali and his companions ran away. His shadow Amar Pal Singh fired thrice on them but since it was very dark, therefore, he did not ascertain as to whether the fire hit anyone of them or not. His father met him in the way when he was being taken to Kotwali police station in the injured condition by his shadow Amar Pal Singh. He told the entire incident to his father. Thereafter they reached at Kotwali police station where the report Ex. Ka-1 of this incident was lodged by Ashish Goel, PW2. The said report was written by his father Rajeshwar Goel on his dictation. Kotwali police had taken him to Doon Hospital where he was medically examined. The clothes which he had worn at the time of incident got bloodstained and torn and these clothes were taken into the possession by PW4 Tejveer Singh, I.O. of the case. This witness has also identified his bloodstained clothes, viz., shirt Ex. 1 and banyan Ex. 2 in the court. This witness could not be shaken in his cross-examination. Moreover, the deposition of this witness is further corroborated by the medical report Ex. Ka-6 and the deposition of PW5 Dr. G.S. Rawat.

(ii) That the incident is said to have taken place at about 9.30 pm on 13.6.1991 and the FIR of this incident was immediately lodged on the same day at 9.50 pm and the distance of the Kotwali police station from the place of occurrence is 1 km. Injured Ashish Geole was also medically examined on the same day at 10.05 pm. Hence, FIR is prompt and there is no delay in lodging the same. about 9.30 pm on 13.6.1991 and the FIR of this incident was immediately lodged on the same day at 9.50 pm and the distance of the Kotwali police station from the place of occurrence is 1 km. Injured Ashish Geole was also medically examined on the same day at 10.05 pm. Hence, FIR is prompt and there is no delay in lodging the same.

(iii) That the deposition of PW2 Ashish Goel is believable and inspire confidence, which also gets corroborated, in view of the circumstances discussed above, from the statement of his father Rajeshwar Goel PW1. believable and inspire confidence, which also gets corroborated, in view of the circumstances discussed above, from the statement of his father Rajeshwar Goel PW1.

18. Learned Counsel for the appellant/accused argued that PW2 Ashish Goel is the only eye witness, on whose deposition the appellant/accused has been convicted by the trial court. Per contra, learned Brief Holder for the State argued that conviction can be based even on the basis of solitary evidence of witness if it inspires confidence. He placed his reliance upon the judgment reported in (2003) 6 SCC 397,Chittar Lal v. State of Rajasthan, wherein at para 7 the Hon’ble Apex Court has held as under:

“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

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 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 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 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 fact. This position has been settled

by series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah v. R. The Privy Council focused on the difference between English law where number of statutes make conviction impermissible for certain categories of offences on the testimony of 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. Reliance has further been placed on the judgment reported in (2008) 2 SCC 151,Kunju alias Balachandran v. State of Tamil Nadu, wherein at para 9, the Hon’ble Apex Court while referring to some of its earlier verdicts, observed as under:

“Vadivelu Thevar case was referred to

with approval in Jagdish Prasad v. State of M.P. This Court held that as general rule the court can and may act on the testimony of single witness provided he is wholly reliable. There is no legal impediment in convicting person on the sole testimony of single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short ‘the Evidence Act’). But, if there are doubts about the the courts will insist on testimony corroboration. It is for the court 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 ring of truth, is cogent, credible and trustworthy, or otherwise.”

20. Learned Brief Holder for the State further argued that though PW3 Amar Pal Singh did not support the case of prosecution in toto and was declared hostile at the request of prosecution, yet his evidence lent corroboration to the evidence of PW2 Ashish Goel inasmuch as this witness did support the case of the prosecution in the manner the entire incident is said to have taken place. I find force in the argument of the learned Brief Holder as in his deposition PW3 Amar Pal Singh, who was the bodyguard of the injured Ashish Goel, PW2 has stated that three persons came across to him and Ashish Goel when they were on their way to the house of Ashish Goel in the night of 13[th] June, 1991. But due the darkness he did not identify their faces and one of them had caused the injury with weapon and thereafter he had brought the injured Ashish Goel at Kotwali police station, where he lodged the FIR of the incident. This witness has corroborated the manner in which the incident is said to have taken place. But he was declared hostile by the prosecution on the point that he could not identify the faces of the assailants. But this witness has supported the version of the prosecution to the extent indicated above.

21. Thus, from the aforesaid discussion of the evidence and in view of the legal proposition (supra) and facts and circumstances of the case, it is proved beyond doubt that the appellant/accused Iqubal Singh @ Pali assaulted PW2 Ashish Goel on 13[th] June, 1991 at about 9.30 pm and injured him with some sharp edged weapon when he was going to his house along with his bodyguard Amar Pal Singh (PW3). Thus, the case against the

appellant/accused stands proved. I do not find any illegality or infirmity with the findings recorded by the trial court and the impugned judgment and order dated 7.3.1994 is correct and justified.

22. In view of my above discussion and conclusion, the prosecution has proved the case against the appellant/accused beyond reasonable doubt and I do not find any merit in the appeal.

23. Resultantly, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 7.3.1994 passed by the 2[nd] Additional Sessions Judge, Dehradun in Sessions Trail No. 112/1992, State v. Iqubal @ Pali & Anr.convicting the appellant/accused Iqubal Singh @ Pali under Section 324 IPC and sentencing him to undergo R.I. for one year is upheld. The appellant/accused Iqubal Singh @ Pali is on bail. His bail bonds are cancelled. Let he be taken into custody to serve out the sentence.

24. Copy of this order be sent to the trial court forthwith for its compliance. Let the lower court record be sent back.

PRABODH

(Dharam Veer, J.) 11.8.2009