# Dinesh & Anr v. State of U.P

- **Citation:** (2019) 2 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** Criminal Appeal No.1335 of 1988
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-anr-v-state-of-u-p-44709
- **Pages:** 12

## Headnote

A. Indian Evidence Act, 1872 - It is the
quality of the evidence which is required to
be seen and not the quantity -trial court
justified in convicting the appellants-
imprisonment for life. (Para 7 & 25)

B. Indian Evidence Act, 1872 - Section 118
- competency of person to testify- evidence
of a child witness - Child not an
incompetent witness by reason of its age.
There is no precise age which determines
the question of competency- - child of
tender age is a competent witness, if it
222 INDIAN LAW REPORTS ALLAHABAD SERIES
appears that it can understand the
questions put to him and give rational
answers thereto. This section vests in the
Court's discretion to decide whether an
infant is or is not disqualified to be a
witness by reason of understanding or lack
of understanding-The merit of evidence
has to be judged on the touchstone of its
own inherent intrinsic worth. - before
recording
conviction
on
the
solitary
testimony of a child witness, the court has
to ensure that he is a reliable witness - If
testimony found to be trustworthy and
reliable then conviction can be recorded on
his sole testimony. (Para 17,18,19 ,20 & 21)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

## Text

2 All. Dinesh & Anr. Vs State of U.P.
221
discretion of the trial court, which
discretion has to be exercised on sound
judicial
principles.
Various
relevant
circumstances which have a bearing on
the question of sentence have to be kept in
view. Before deciding the quantum of
sentence the learned Sessions Judge has
to hear both the sides as required by the
relevant provision of the Cr.P.C.

6. In an appeal against the
conviction, it is open to the High Court to
alter or modify or reduce the sentence
after confirming conviction. If the High
Court is of the opinion that the sentence is
heavy or unduly harsh or requires to be
modified, the same must be done on well
recognised judicial dicta. Therefore, we
may first notice the reasons which
appealed to the learned Judge to reduce
the substantive sentence awarded to the
appellants to sentences undergone."

30. This Court has considered
submission in this regard in the light of
the evidence, facts and circumstances of
the case and finds in the present case that
the deceased who is an old man, aged
about 60 years, has been assaulted
without any provocation. He was beaten
mercilessly by repeated blows of lathi.
The accused appellant Subhash is a
healthy men aged about 40 years. The
accused chose vital parts of the body to
inflict injuries. In these circumstances the
sentence
of
seven
years
rigorous
imprisonment appears to be appropriate
and does not call for any interference.

31. The appeal fails and is,
accordingly, dismissed.

32. Since the appellant is already on
bail, the Chief Judicial Magistrate, Mau is
directed to ensure that the appellant is
taken into custody and sent in jail for
serving out of his sentence awarded by
the trial court. The bail bond of the
appellant is cancelled and his sureties are
also discharged.

33. A copy of this order be sent to
the Chief Judicial Magistrate, Mau
immediately for necessary compliance of
this judgment and order.
----------

(2019)10ILR A 221

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No.1335 of 1988

Dinesh & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri T.M. Rizvi, Sri Abhishek Tripathi, Sri
Amit Tripathi, Sri Vishesh Kumar (A.C.)

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A.

A. Indian Evidence Act, 1872 - It is the
quality of the evidence which is required to
be seen and not the quantity -trial court
justified in convicting the appellants-
imprisonment for life. (Para 7 & 25)

B. Indian Evidence Act, 1872 - Section 118
- competency of person to testify- evidence
of a child witness - Child not an
incompetent witness by reason of its age.
There is no precise age which determines
the question of competency- - child of
tender age is a competent witness, if it
222 INDIAN LAW REPORTS ALLAHABAD SERIES
appears that it can understand the
questions put to him and give rational
answers thereto. This section vests in the
Court's discretion to decide whether an
infant is or is not disqualified to be a
witness by reason of understanding or lack
of understanding-The merit of evidence
has to be judged on the touchstone of its
own inherent intrinsic worth. - before
recording
conviction
on
the
solitary
testimony of a child witness, the court has
to ensure that he is a reliable witness - If
testimony found to be trustworthy and
reliable then conviction can be recorded on
his sole testimony. (Para 17,18,19 ,20 & 21)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

1. Panchi Vs St. of U.P. (1998) 7 SCC 177

2. St. of Karnataka Vs Shantappa Madivalappa
Galapuji & ors. (2009) 12 SCC 731

3. Nivrutti Pandurang Kokate & ors. V. St. of
Mah. 2008 (12) SCC 565

4. Golla Yelugu Govindu Vs St. of A.P. (2008
(4) SCALE 569)

5. St. of U.P. Vs Krishna Master & ors. (2010)
47 OCR (SC) 263

6. Namdeo Vs St. Of Mah. (2007) 14 SCC 150

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of the
impugned
judgement
and order dated
03.05.1988 passed by II Additional District &
Sessions Judge, Kanpur Dehat in Sessions
Trial Nos. 50 of 1985 (State Vs. Dinesh) and
104A of 1985 (State Vs. Surendra Singh),
convicting the accused-appellants under
Section 302/34 of IPC and sentencing them to
undergo imprisonment for life.

2. In the present case, name of the
deceased is Ram Swaroop Tiwari. Deceased
stood as a surety for appellant Dinesh but as
Dinesh continued to commit crimes,
deceased informed him that if he will not
make himself correct, in such a condition,
deceased would be compelled to get his bail
cancelled. Looking to this attitude of the
deceased, accused Dinesh got annoyed with
him and with the help of co-accused
Surendra Singh, Umesh (died during
investigation) and Ramesh (absconded
during trial), on 03.08.1984 committed the
murder of the deceased by causing gun shot
and axe injury to him. Incident has been
witnesses by Shiv Kant Tiwari (PW-2), a
child witness aged eight years (son of
deceased), who at the time of commission
of offence was with the deceased. Hearing
the cries of the deceased, his another son
Kamal Kant Tiwari (PW-1) rushed to the
spot and saw the accused persons fleeing
from the spot. On the written report Ex.Ka.-
1 lodged by Kamal Kant Tiwari (PW-1) on
03.08.1984 at 07.45 pm, FIR was registered
against four accused persons under Section
302 of I.P.C.

3. Inquest on the dead body of the
deceased was conducted, on the same day
i.e. 03.08.1984, vide Ex.Ka.4, which
started at 09.30 pm and completed at
about 11.00 pm and body was sent for
postmortem, which was conducted by Dr.
Anil Bihari Lal Saxena (PW-7) vide
Ex.Ka.15 on 04.08.1984.

As per Autopsy Surgeon, as
many as seventeen following injuries
were found on the body of the deceased:

"1. An incised wound 12cm x
3cm x brain cavity deep, right side of
scalp, 3cm above Rt. ear.

2. An incised wound 9cm x 3cm
x bone deep cut on posterior side of scalp,
2 All. Dinesh & Anr. Vs State of U.P.
223
11⁄2 cm behind right ear temporal bone
fractured.

3. An incised wound 8cm x 3cm
x bone cut deep on right side face upto
right ear, temporal bone fractured.

4. An incised wound 11cm x
4cm x bone cut on rt. side neck extended
above upto the scalp behind the eartemporal bone fractured.

5. An incised wound 6cm x 21⁄2 cm
on the rt. side neck just below the injury no. 4.

6. An incised wound 27cm x 51⁄2 cm
x bone cut posterior and left side of neck,
occipetal bone and vertebra upper fractured.

7. An incised wound 10cm x 21⁄2
cm x muscle deep on the upper part of
back just below the root of neck.

8. An incised wound 8cm x 11⁄2 x
muscle deep on the back of right shoulder.

9. An abrasion-contusion 51⁄2 cm
x 31⁄2 cm on the back of right shoulder just
below on injury no. 8.

10. An incised wound 4 cm x 11⁄2
cm x muscle deep on the epigastric fossa.

11. An incised wound 10 cm x
31⁄2 cm x muscle deep on ventral aspect of
rt. hand forearm in its middle part.

12. A gun shot wound of entry 4
cm x 31⁄2 cm x through and through on the
dorsal aspect of right forearm, 8 cm
below the right elbow, margins inverted
and ulna bone fractured.

13. A gun shot wound of exit 10
cm x 3 cm x through and through
communicating to the injury no. 12 on the
ventral aspect of rt. forearm 21⁄2 cm above
the wrist joint-margins everted and one
wadding piece is recovered.

14. A gun shot wound of exit 8
cm x 3 cm x through and through
communicating to the injury no. 12 on the
medial side of rt. forearm, 11⁄2 cm away
from injury no. 13, margins everted and
one wadding piece is recovered from the
wound.

15. Multiple gun shot wound of
entry in an area of about 20 cm x 6 cm x
muscle deep on rt. side of lower part of
chest and upper part of abdomen, 18
pellets (16 small + 1 big and one broken)
recovered from the wound.

16. One gun shot wound of
entry 1 cm x 1 cm x through and through
4 cm above the left writ joint on ventral
aspect medial side, margins inverted.

17. One gun shot wound of exit
11⁄2 cm x 11⁄2 cm x through and through
communicating to the injury no. 16 on the
ventral aspect and above the writ joint
margins everted."

Cause of death of the deceased
was due to shock and haemorrhage as a
result of antemortem injuries.

4. During investigation, accused
Umesh died and, therefore, charge sheet
was filed against the appellants and one
absconded accused Ramesh.

5. While framing charge, the trial Judge
has framed charge against the accusedappellants under Section 302/34 of I.P.C.

6. During trial accused Ramesh had
absconded and, therefore, the trial court
224 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeded with the trial of Dinesh and
Surendra Singh.

7. So as to hold the accused
appellants
guilty,
prosecution
has
examined eight witnesses, whereas one
defence witness has also been examined.
Statements of the accused-appellants were
recorded under Section 313 Cr.P.C. in
which, they pleaded their innocence and
false implication.

8. By the impugned judgment, the
trial Judge has convicted and sentenced
the accused-appellants as mentioned in
paragraph no. 1 of this judgment. Hence
this appeal.

9. Learned counsel for the appellants
submits:

(i) that the FIR is ante-dated,
inquest was prepared on 03.08.1984 and
in the same, reference of seizure memo
has been given whereas seizure was
affected on 04.08.1984. Learned counsel
submits that in the inquest, crime number
and
other
details
have
not
been
mentioned, whereas as per requirement of
law, the same ought to have been
mentioned.

(ii) that Kamal Kant Tiwari
(PW-1) had not even seen the accused
persons fleeing from the spot, but with the
help of police, he has put forth an
absolute false case.

(iii) that Shiv Kant Tiwari (PW2), a child witness, had not seen any
occurrence nor he was present at the spot
and it was only after tutoring him, he has
been made as an eye-witness to the
incident. Had this witness would have
seen the occurrence, in the spot map,
details of the place from where he saw the
incident would have been shown.

(iv) that there is delay in
recording 161 Cr.P.C. statement of Shiv
Kant Tiwari (PW-2) and the said delay
has
not
been
explained
by
the
prosecution. Even otherwise, PW-2 does
not appear to be a competent witness.
(v)
that
motive
assigned
by
the
prosecution appears to be very weak and
for such a small thing, nobody would
commit a murder.

(vi) that as per prosecution case,
Gauri Nath, Shyama Devi and Sudha had
also seen the occurrence, but these
witnesses have not been examined by the
prosecution.

(vii) that there is inordinate
delay in sending the copy of special report
to the Magistrate.

10. On the other hand, supporting
the impugned judgment, it has been
argued by the State counsel:

(i) that there is no evidence on
record to show that FIR is ante-timed. He
submits that inquest started on 03.08.1984
at 09.30 pm and the same continued till
11.00 in the night and that could be the
reason that in the recovery memo, next
date i.e. 04.08.1984 has been mentioned.
He points out that in the inquest, FIR
number has been mentioned and the other
details have also been shown therein and
thus, it cannot be said that the FIR is antedated. It has been argued that even
assuming that there is some clerical
mistake in mentioning the time or date, it
would not be fatal for the prosecution
when there is other conclusive evidence
available on record. He submits that
2 All. Dinesh & Anr. Vs State of U.P.
225
police had gone to record 161 Cr.P.C.
statement of the witnesses, but as the
entire family was in a shock and was
crying, the statement could not be
recorded.

(ii) that Shiv Kant Tiwari (PW-2)
appears to be a fully competent witness and
from his statement, it is apparent that he is a
mature boy and had not been tutored.

(iii) that Kamal Kant Tiwari
(PW-1) appears to be another witness. He
states that he saw the accused persons
fleeing from the spot and had he been a
planted witness, he would have become
an eye witness to the incident.

(iv) that non-examination of
Gauri Nath, Shyama Devi and Sudha
would not be fatal for the prosecution, as
it is the choice of the prosecution to
examine its witnesses.

(v) that motive part has been
duly proved by the prosecution wherein in
the FIR itself, it has been stated that
despite request of the deceased when
appellant no. 1 Dines continued his illegal
activities, he was warned, which was not
liked by him, as a result of which Dinesh
was having animosity with the deceased.

(vi) that Shiv Kant Tiwari (PW2) has categorically stated that when his
father was being killed, he hide himself
near the bundle of wood and cow dung.

(vii) that FIR was registered at
07.45 pm and the inquest was prepared till
late in the night and on the next morning,
special report was sent to the Magistrate.

11. We have heard counsel for the
parties and perused the record.

12. Kamal Kant Tiwari (PW-1), is a
son of the deceased and the informant. He
has stated that his father stood as surety
for accused Dinesh in the earlier criminal
case but even thereafter, appellant Dinesh
continued to commit theft and dacoity.
His father had asked appellant Dinesh that
in such eventuality, he would get his bail
cancelled and hearing this, appellant
Dinesh was annoyed with his father. On
the date of incident at about 4:00 pm,
when his father was sitting at the door
steps of one Gauri Nath along with Shiv
Kant Tiwari (PW-2), he heard the cries
when he was sitting in his house which is
about 200-250 yards from the house of
Gauri Nath. He along with Vimal Kant,
Krishna Swaroop and several other
persons immediately rushed to the house
of Gauri Nath and then heard the sound of
gunshot. Thereafter, he saw accused
appellant Dinesh, Surendra Singh and
Ramesh coming out from the house. He
states that accused-appellants Dinesh and
Surendra Singh @ Babua were having
gun with them whereas Umesh and
Ramesh were having country made
pistols. In the house, he saw the dead
body of his father having number of
gunshot and axe injuries. He states that
Shiv Kant Tiwari (PW-2) was found in
the same room where dead body of the
deceased was lying. He further states that
thereafter, he lodged the FIR. He has
clarified that as Radha, one of the witness
has been married in the family of accused
Dinesh, she is not willing to adduce her
evidence. In the cross-examination, he has
clarified that he had not seen any accused
carrying axe. It is relevant to note that
recovery of axe was made from the spot
itself and this he has clarified in
paragraph
no.
10
of
his
crossexamination. In the cross-examination,
this witness remained firm and has
226 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterated as to the manner in which the
incident occurred. He has further stated
that in a room where dead body was
found there were bundles of wood and
cow dung.

13. Shiv Kant Tiwari (PW-2) is a
child witness and at the time of recording
his evidence, he was 10 years of age. The
trial court before recording his evidence,
first recorded its satisfaction regarding
competence
of
witness
and
then
proceeded further. He has stated that four
accused persons came in the house of
Gauri Nath, where his father was sitting.
They had some talk with his father
regarding
bail
and
then
they
threatened/scolded his father. His father
took him inside the room and bolted the
room from inside. The accused persons
made an attempt to break open the door
and after doing so, they entered the room
and caused gunshot and axe injuries to his
father. He has clarified that he hide
himself near the wood and cow dung
bundle and from there, he saw the entire
incident. In the cross-examination, several
questions were put to him but he
answered all those questions in a best
possible manner and has reiterated as to
the manner in which his father was killed
by the accused-appellants.

14. Chotey Lal Tiwari (PW-3), is a
Head Moharrir, who recorded the FIR.
Mirza Ishtiaq Beg (PW-4) is first
Investigating
Officer.
He
has
categorically denied that till preparation
of inquest, no FIR was registered. Madho
Singh (PW-5) is a third Investigating
Officer, who filed the charge-sheet
against accused Dinesh and Ramesh
(absconded accused). Ram Jiyawan (PW6) took the dead body of the deceased for
postmortem. Dr. Anil Bihari Lal Saxena
(PW-7) is the doctor, who conducted
post-mortem on the body of the deceased.
Yogendra Singh (PW-8) is a second
Investigating Officer, has duly supported
the prosecution case.

15. Ram Gopal (DW-1) has not
stated anything specific, which may be of
any help to the defence.

16. Close scrutiny of evidence
makes it clear that deceased stood as a
surety for accused Dinesh and when he
continued to indulge himself in the case
of theft and dacoity, deceased asked him
for withdrawing himself as his surety as a
result of which, accused Dinesh was
annoyed with him and on 03.08.1984,
with the help of other co-accused persons,
in the house of Gauri Nath, he committed
his murder. Seeing the accused person,
deceased entered the room of Gauri Nath
along with his minor son Shiv Kant
Tiwari (PW-2), but the accused persons
broke open the door, gained entry in the
room and committed murder of the
deceased. Incident has been witnessed by
Shiv Kant Tiwari (PW-2), a child witness,
who remained very firm in the court, has
reiterated as to the manner in which, he
saw the incident. Hearing cries of the
deceased, his another son Kamal Kant
Tiwari (PW-1) rushed to the house of
Gauri Nath and there he heard the sound
of gunshot and soon thereafter, he saw
accused persons carrying firearm with
them and fleeing from the spot.

17. The case of the prosecution
mainly rests on the testimony of Shiv
Kant Tiwari (PW-2), who is a child
witness, aged about 10 years, when his
evidence was recorded. Before discussing
the evidence of a child witness, it would
be advantageous to refer to the law
2 All. Dinesh & Anr. Vs State of U.P.
227
relating to child witness. Section 118 of
the Evidence Act deals with the question
of competency of person to testify. Under
this Section, all persons are competent to
testify, unless they are, in the opinion of
the Court, (a) unable to understand the
questions put to them, or (b) to give
rational answers to those questions, owing
to (i) tender years, (ii) extreme old age,
(iii) disease of mind or body, or (iv) any
other such cause. Even a lunatic, if he is
capable of understanding the questions
put to him and giving rational answers, is
a competent witness. With respect to
children, no precise age is fixed by law
within which they are absolutely excluded
from giving evidence on the presumption
that
they
have
not
sufficient
understanding.
A
child
is
not
an
incompetent witness by reason of its age.
A child of tender age is not, by reason of
its youth, as matter of law, disqualified as
a witness. There is no precise age which
determines the question of competency.
According to Section 118 of the Evidence
Act, a child of tender age is a competent
witness, if it appears that it can
understand the questions put to him and
give rational answers thereto. This section
vests in the Court's discretion to decide
whether an infant is or is not disqualified
to
be
a
witness
by
reason
of
understanding or lack of understanding.
When a young child is a witness, the first
step for the Judge or Magistrate to take, is
to satisfy himself that the child is a
competent witness, within the meaning of
Section 118 of the Evidence Act and for
this purpose, preliminary inquiry should
be held. It is the duty of the Court to
ascertain in the best way, which it can,
whether from the extent of his intellectual
capacity and understanding the child
witness is able to give a rational account
of what he has seen, heard or done at a
particular occasion or in other words, the
witness understands the duty of speaking
truth or not. Competency of young
children can be ascertained by putting a
few questions to them in order to find out
whether they are intelligent enough to
understand what they had seen and
afterwards inform the court thereof. The
holding of a preliminary inquiry is merely
a rule of prudence and is not a legal
obligation upon the Judge. It is desirable
that after holding a preliminary inquiry,
Judges and Magistrates maintain record
incorporating opinion that the child
understands the duty of speaking truth.
Though no precise criteria for appraising
the evidence of a child witness can be laid
down, yet one broad test is whether there
was possibility of any tutoring. If this test
is found in positive, the Court will not, as
a rule of prudence, convict the accused of
a major offence on the basis of child
evidence unless it is corroborated to
material extent in material particulars,
directly connecting the accused with the
crime. At the same time, if otherwise the
testimony of a child witness is not shown
to be tainted with any such infirmities, it
calls for due credence. A child in the
innocent
purity
of
its
mind
and
unsophistication is more likely to come
forth with version which is unbiased,
unsoiled, natural and forthright. It is less
prone to manipulation, motivation and
spirit of vendetta. It can as well be
spontaneous and inspiring, once the child
is enabled to overcome the initial shock
and awe, and ensured protection, security,
compassion and given confidence to come
out with what was seen. Further, some of
the children are fairly intelligent, truthful
and straight forward, and there is no
reason to start with a presumption of
untrustworthiness in the assessment of
their evidence. The merit of evidence has
228 INDIAN LAW REPORTS ALLAHABAD SERIES
to be judged on the touchstone of its own
inherent intrinsic worth.

18. In the matter of Panchi V. State
of UP, (1998) 7 SCC 177 the Hon'ble
Supreme Court has held as under:-

".....It cannot be said that the
evidence of a child witness would always
stand irretrievably stigmatized. It is not
the law that if a witness is a child, his
evidence shall be rejected, even if it is
found reliable. The law is that evidence of
a child witness must be evaluated more
carefully with greater circumspection
because a child is susceptible to be
swayed by what others tell him and thus a
child witness is an easy prey to tutoring."

19. With regard to the testimony of
child witness the Hon'ble Supreme Court
in State of Karnataka v. Shantappa
Madivalappa Galapuji & others reported
in (2009) 12 SCC 731 had noticed the
case law and held as under:

"The Indian Evidence Act, 1872
does not prescribe any particular age as a
determinative factor to treat a witness to
be a competent one. On the contrary,
Section
118
of
the
Evidence
Act
envisages that all persons shall be
competent to testify, unless the court
considers that they are prevented from
understanding the questions put to them
or from giving rational answers to these
questions, because of tender years,
extreme old age, disease whether of mind,
or any other cause of the same kind. A
child of tender age can be allowed to
testify if he has intellectual capacity to
understand questions and give rational
answers thereto. The evidence of a child
witness is not required to be rejected per
se, but the court as a rule of prudence
considers such evidence with close
scrutiny and only on being convinced
about the quality thereof and reliability
can record conviction, based thereon.
{See Suryanarayana v. State of Karnataka
(2001) 9 SCC

129)]. In Dattu Ramrao Sakhare
v. State of Maharashtra [(1997) 5 SCC
341] it was held as follows: (SCC p. 343,
para

5) :-

"A child witness if found
competent to depose to the facts and
reliable one such evidence could be the
basis of conviction. In other words even
in the absence of oath the evidence of a
child witness can be considered under
Section 118 of the Evidence Act provided
that such witness is able to understand the
questions and able to give rational
answers thereof. The evidence of a child
witness and credibility thereof would
depend upon the circumstances of each
case. The only precaution which the court
should bear in mind while assessing the
evidence of a child witness is that the
witness must be reliable one and his/her
demeanour must be like any other
competent witness and there is no
likelihood of being tutored."

20. The position of law relating to
the evidence of a child witness has been
dealt with also by the Apex Court in
Nivrutti Pandurang Kokate and others
V. State of Maharashtra, 2008 (12) SCC
565 and Golla Yelugu Govindu v. State
of Andhra Pradesh, (2008 (4) SCALE
569). In the case of State of U.P. vs.
Krishna Master & Others, (2010) 47
OCR (SC) 263, the Hon'ble Apex Court
also has gone a step ahead in observing
2 All. Dinesh & Anr. Vs State of U.P.
229
that a child of tender age who has
witnessed the gruesome murder of his
parents is not likely to forget the incident
for his whole life and would certainly
recapitulate facts in his memory when
asked about the same at any point of time
notwithstanding the gap of about ten years
between the incident and recording his
evidence.

21. The legal position which can be
culled out from the aforesaid decisions is
that before recording conviction on the
solitary testimony of a child witness, the
court has to ensure that he is a reliable
witness. If his testimony is found to be
trustworthy and reliable then conviction
can be recorded on his sole testimony.

22. Considering the above position
of law, if we apply the above principles in
the present case, it is apparent that at the
time of recording the evidence of Shiv
Kant Tiwari (PW-2), his age was about 10
years. Before recording his satisfaction in
respect of competency of this witness, the
trial judge has asked certain questions to
him and after satisfying himself of the
fact that the witness understands the duty
to speak truth and is able to rationally
answer the questions put to him, the court
has examined him. In the court, he has
literally given the vivid description of the
entire incident and has stated as to the
manner in which his father was done to
death by the appellants. Number of
questions, including tricky questions were
put to him by the defence, but all those
questions have been answered very
sensibly and with responsibility by the
witness.

Lengthy cross-examination of
this witness by the defence has further
strengthened the case of the prosecution,
where it can be said that Shiv Kant Tiwari
(PW-2) was a competent witness and in
no manner, he can be called a tutored
witness.

23. We find no substance in the
argument of the defence that the FIR is
ante-dated. There is no legally admissible
evidence on record to substantiate this
argument. The mere fact that the inquest
was conducted on 03.08.1984 and the
recovery has been affected on 04.08.1984
will not establish the point that the FIR is
ante-dated. In the inquest, details of FIR,
including crime number have been
mentioned and the most important aspect
of the case is that the inquest started at
9:30 pm on 03.08.1984 and continued till
11:00 pm in the night. If the recovery has
been shown on 04.08.1984, no fault can
be attributed to the prosecution. Assuming
that there is some mistake in mentioning
the date in these two documents, this itself
would not be sufficient to prove that the
FIR is ante-dated.

24. We further find no substance in
the argument of the defence that Kamal
Kant Tiwari (PW-1) and Shiv Kant Tiwari
(PW-2) are not reliable witnesses. As
stated above, both these witnesses have
duly supported the prosecution case and
PW-2, though a child witness, appears to
be fully trustworthy and reliable. The
statements of PW-1 and PW-2 further find
support from the post-mortem report of
the deceased.

25. There is some substance in the
argument of the prosecution that had the
prosecution wanted to put forth any
fabricated evidence, they would have
projected PW-1 as an eye witness to the
incident, but PW-1 has merely stated that
when he reached the place of occurrence,
230 INDIAN LAW REPORTS ALLAHABAD SERIES
he saw the accused persons fleeing from
the spot. Similarly, non examination of
some of the witnesses, whose reference
has been given in the FIR, is also not fatal
for the prosecution because it is the
quality of the evidence which is required
to be seen and not the quantity. Law in
this respect is very clear.

26. In the case of Namdeo vs State
Of Maharashtra; (2007) 14 SCC 150,
the Supreme Court has held as under:

"It is not seldom that a crime had
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. 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.

The Court also stated;

There is another danger in
insisting
on
plurality
of
witnesses.
Irrespective of the quality of the oral
evidence of a single witness, if courts
were to insist on plurality of witnesses in
proof of any fact, they will be indirectly
encouraging subornation of witnesses.
Situations may arise and do arise where
only a single person is available to give
evidence in support of a disputed fact. The
court naturally has to weigh carefully
such a testimony and if it is satisfied that
the evidence is reliable and free from all
taints which tend to render oral testimony
open to suspicion, it becomes its duty to
act upon such testimony. The law reports
contain many precedents where the court
had to depend and act upon the testimony
of a single witness in support of the
prosecution. There are exceptions to this
rule, for example, in cases of sexual
offences or of the testimony of an
approver; both these are cases in which
the oral testimony is, by its very nature,
suspect, being that of a participator in
crime. But, where there are no such
exceptional reasons operating, it becomes
the duty of the court to convict, if it is
satisfied that the testimony of a single
witness is entirely reliable.

In the leading case of Shivaji
Sahebrao
Bobade
v.
State
of
Maharashtra, (1973) 2 SCC 793, this
Court held that even where a case hangs
on the evidence of a single eye witness it
may be enough to sustain the conviction
given sterling testimony of a competent,
honest man although as a rule of
prudence courts call for corroboration.
"It is a platitude to say that witnesses
have to be weighed and not counted since
quality matters more than quantity in
human affairs." In Anil Phukan v. State
of Assam, (1993) 3 SCC 282 : JT 1993
(2) SC 290, the Court observed; "Indeed,
conviction can be based on the testimony
2 All. Dinesh & Anr. Vs State of U.P.
231
of a single eye witness and there is no
rule of law or evidence which says to the
contrary provided the sole witness passes
the test of reliability. So long as the single
eye-witness is a wholly reliable witness
the courts have no difficulty in basing
conviction
on
his
testimony
alone.
However, where the single eye witness is
not found to be a wholly reliable witness,
in the sense that there are some
circumstances which may show that he
could have an interest in the prosecution,
then the courts generally insist upon some
independent
corroboration
of
his
testimony, in material particulars, before
recording conviction. It is only when the
courts find that the single eye witness is a
wholly
unreliable
witness
that
his
testimony is discarded in toto and no
amount of corroboration can cure that
defect." In Kartik Malhar v. State of
Bihar, (1996) 1 SCC 614 : JT 1995 (8)
SC 425, referring to several cases, this
Court stated; "On a conspectus of these
decisions, it clearly comes out that there
has been no departure from the principles
laid down in Vadivelu Thevar case and,
therefore, conviction can be recorded on
the basis of the statement of a single eye
witness provided his credibility is not
shaken by any adverse circumstance
appearing on the record against him and
the court, at the same time, is convinced
that he is a truthful witness. The court will
not then insist on corroboration by any
other eye witness particularly as the
incident might have occurred at a time or
place when there was no possibility of any
other eye witness being present. Indeed,
the courts insist on the quality, and, not
on the quantity of evidence." In Chittar
Lal v. State of Rajasthan, (2003) 6 SCC
397 : JT 2003 (7) SC 270, this Court had
an occasion to consider a similar
question. In that case, the sole testimony
of a young boy of 15 years was relied
upon
for
recording
an
order
of
conviction. Following Mohamed Sugal
and reiterating the law laid down therein,
this Court stated:"

27. We further find no substance in
the argument of the defence that motive
has not been proved by the prosecution.
From the evidence, it is clear that
deceased had asked the appellant Dinesh
to correct himself and when he did not,
he made it clear to him that he would
withdraw himself as surety. Hearing
this, appellant Dinesh was annoyed with
the deceased and he, with the help of
other accused persons, committed his
murder.

28. We further find no substance in
the argument of the defence that there is
any discrepancy in the spot map. These
minor technicalities, if any, do not affect
the prosecution case, as they do not go to
the root of the matter.

29. After appreciation of the entire
evidence, we are of the considered view
that the trial court was fully justified in
convicting the appellants. Judgement of
the trial court deserves to be affirmed and
the same is accordingly affirmed.

30. The appeal has no substance and
the same is accordingly dismissed.
Appellants are reported to be on bail, they
be taken into custody forthwith to serve
the remaining sentence.

31. This Court appreciates the
assistance rendered by Sri Vishesh
Kumar, learned Amicus. The State
Government is directed to pay Rs.
10,000/- towards his remuneration.
----------
232 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 232

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 5240 of 2018

Arvind Parmar @ Bunty Raja & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ram Datt Dauholia, Sri Nanhe Lal
Tripathi.

Counsel for the Opposite Party:
A.G.A.

A. Code of criminal procedure, 1973 -
Section 374 (2) - Criminal Appeal -
statement of accused persons under
Section 313 Cr.P.C.- Presumption, under
Section 114, Indian Evidence Act, 1872 -
judgment of conviction and sentence,
awarded is illegal, perverse and against
the weight of evidence on record.
 (Para 1, 8,19 & 26)

Offence of theft was got registered by
informant
against
unknown
thieves.
Subsequently, alleged recovery of alleged
stolen cash money was said to have been
made from convict-appellants. Offence of theft
or taking of articles from building, by convict
appellants, was not proved by any witness and
on the basis of possession and presumption,
under Section 114, Evidence Act, offence
under Section 380 IPC was deemed to be
proved whereas identification
of alleged
recovered cash, with no specific mark of
identification, was neither established, by way
of identification parade, or by way of proving it
before Trial court. (Para 8,24 & 25)

B. Indian Penal Code, 1860 - conviction,
under Section 457 IPC- When evidence
does not justify a finding that the
accused, who entered inside the house,
had
same
intention
to
commit
an
offence, it is not trespass. (Para 18)

C. Indian Evidence Act, 1872 - Section
114 - Presumption, under Section 114,
Evidence Act, can be drawn only when
the accused, when asked, is unable to
explain his possession. (Para 19)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Chhadami Vs Emperor 41 Cr.L. J, 623 (Ald.)

2. Trimbak Vs St. of M.P. AIR 1954 SC 39
(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Appeal, under Section 374
(2) of Code of Criminal Procedure, 1973
(In short hereinafter referred to as
''Cr.P.C.'), has been filed by the convictappellants, Arvind Parmar @ Bunty Raja,
Rajan @ Rajendra, and Raheem Khan,
against the judgment of conviction, dated
04.08.2018
and
sentences
awarded
therein, by the Court of Additional
Sessions
Judge/Special
Judge
(U.P.
Dacoity Affected Area), Lalitpur, in
Sessions Trial No. 25 of 2013 (State vs.
Arvind Parmar @ Bunty Raja and others),
arising out of Case Crime No. 1150 of
2012, under Sections 457, 380, 411, 413
of Indian Penal Code (Hereinafter in short
referred to as ''IPC'), Police Station-
Kotwali
Lalitpur,
District
Lalitpur,
whereby
convict-appellants,
Arvind
Parmar @ Bunty Raja, Rajan @ Rajendra
and Raheem Khan, have been sentenced
with seven years' rigorous imprisonment
and fine of Rs.10,000/-, each, under
Section 380 IPC, and twelve years'
rigorous imprisonment, with fine of