# Radha Mohan Rai v. State of U.P

- **Citation:** (2022) 11 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-17
- **Case number:** Criminal Appeal No. 583 of 1982
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radha-mohan-rai-v-state-of-u-p-47888
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal Code,
1860 - Sections 34, 147, 148, 149, 307,
323 & 325 - Indian Evidence Act, 1872 -
Section 134 - Criminal Appeal - Conviction and
sentence - FIR - informant alleged that, the
accused persons, having enemy with informant
family, armed with Lathi and country made
pistol assaulted upon complainant and his uncle
& cousin when they are sleeping at their tubewell in night, as a result of same they had
sustained injuries - Evaluation of Evidence -
please taken by the accused appellant that if
there were three injured persons (i.e. three eyewitnesses) but the prosecution produced only
two which is highly improbable - court finds
that, the testimony of PW-1 & PW-2 (two eyewitnesses) has been found to be reliable and
trustworthy - failure to examine the other
witnesses is inconsequential - there is no legal
hurdle in convicting a person on the sole
testimony of a single witness, if his version is
clear and reliable, for the principle that the
evidence has to be weighed and no counted -
the law of evidence does not require any
particular number of witnesses to be examine in
proof of a given fact - appellant failed to point
out any illegality, infirmity or perversity in the
judgment of trial court - accordingly, appeal is
dismissed. (Para - 24, 25, 41)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,936 of 41,044. This is a partial read: ask again with offset=39936 for what follows._

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 11 ILRA 6
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Appeal No. 583 of 1982

Radha Mohan Rai ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.C. Srivastava, Sri A.C. Srivastava, Sri
Bhupendra Pandey (A.C.), Sri M.K. Pandey,
Sri Mansoor Ahmed A.C., Sri Raj Kumar
Sharma, Sri Ashok Kumar Yadav A.C.

Counsel for the Respondent:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal Code,
1860 - Sections 34, 147, 148, 149, 307,
323 & 325 - Indian Evidence Act, 1872 -
Section 134 - Criminal Appeal - Conviction and
sentence - FIR - informant alleged that, the
accused persons, having enemy with informant
family, armed with Lathi and country made
pistol assaulted upon complainant and his uncle
& cousin when they are sleeping at their tubewell in night, as a result of same they had
sustained injuries - Evaluation of Evidence -
please taken by the accused appellant that if
there were three injured persons (i.e. three eyewitnesses) but the prosecution produced only
two which is highly improbable - court finds
that, the testimony of PW-1 & PW-2 (two eyewitnesses) has been found to be reliable and
trustworthy - failure to examine the other
witnesses is inconsequential - there is no legal
hurdle in convicting a person on the sole
testimony of a single witness, if his version is
clear and reliable, for the principle that the
evidence has to be weighed and no counted -
the law of evidence does not require any
particular number of witnesses to be examine in
proof of a given fact - appellant failed to point
out any illegality, infirmity or perversity in the
judgment of trial court - accordingly, appeal is
dismissed. (Para - 24, 25, 41)

Appeal dismissed. (E-11)

List of Cases cited:

1. Prithipal Singh Vs St. of Pun., (2012) 1 SCC
10,

2. Mahendra Vs St. of M.P. (SC) Criminal Appeal
No.30 of 2022 (Arising out of SLP(Crl.) No.6530
of 2018), decided on 5.01.2022

(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. The present appeal is preferred
against
judgment
and
order
dated
18.12.1981 passed by Vth Additional
Sessions Judge, Ballia in Session Trial
No.64 of 1981, convicting and sentencing
the appellant-Radha Mohan Rai under
Section 323 read with Section 149 of the
Indian Penal Code and Section 147 of the
Indian Penal Code on probation for two
years while suspending the sentence.

2. The present appeal has been filed
by two Appellant's, namely, Radha Mohan
Rai (Appellant no.1) and Ram Kripal
(Appellant no.2). During the pendency of
the appeal, Ram Kripal (Appellant no.2)
has died and the present appeal is abated in
respect of Appellant no.2 by order dated
01.02.2010.

3. The prosecution case as per the first
information report is to the effect that
Madan Rai-informant had enmity with Ram
Chhabila Rai regarding taking meals
together. Radha Mohan is relative of Ram
Chabila. About one month prior to the
incident, Ram Chabila Rai wanted some
passage to his house through the courtyard
of the informant and the informant had
promised Ram Chabila Rai for passage
11 All. Radha Mohan Rai Vs. State of U.P.
7
from the eastern corner of his house but
Ram Chabila Rai did not accept the same.
There was a panchayat in respect of the
aforesaid dispute where the informant
promised Ram Chabila Rai to give him
passage through the border. Radha Mohan
became annoyed and in the panchayat
threatened the informant by throttling his
neck and stating that he will take passage
after finishing the informant. The other
persons
present
in
the
panchayat
intervened.

4. On 27.05.1980, informant together
with his cousin Virendra Rai and uncle
Munni Rai were sleeping at his tubewell in
Village-Mansurpur. Three accused persons
together with five-six other persons came
there being armed with lathi and country
made pistol. There was no electricity at the
tubewell but the lantern was burning. The
informant was lying awaken. The accusedappellant Radha Mohan shouted what is the
delay we have got all three together kill
them. On the aforesaid call, all the accused
persons started beating the complainant, his
uncle and cousin. As a result of the same,
the uncle of the complainant and cousin
was badly injured. The accused persons
could be recognised in the moonlight and in
the light of the lantern. The other persons
could be recognised after seeing them. On
his alarm, some persons of the nearby
vicinity arrived there and thereafter, the
accused persons left thinking that the
injured have died. The family members
took the three injured persons to the
hospital on the same night. The uncle of the
complainant and the cousin were in serious
condition in the hospital and after getting
himself
medically
examined,
the
complainant came to the police station to
lodge the first information report. The first
information
report
was
lodged
on
28.05.1980 at 8:20 AM at police Station
Phephna, which is 6 miles away from the
place of occurrence.

5. On the basis of the aforesaid first
information report, a case under Sections
147, 148, 149, 307 I.P.C. was lodged at
Police Station Phephna being Case Crime
No.126 of 1980.

6. The injured persons were medically
examined by Dr. Arun Kumar on 28th May,
1980 am at District Hospital, Ballia.

7. After completion of investigation,
Investigating
Officer
has
submitted
chargesheet against the accused persons
and
charges
were
framed
on
19th
September, 1981 against the accused
persons under Sections 307/149/147, 323,
149, 325/149 I.P.C.

8. All the accused persons have
denied the charges levelled against them
and have claimed to be tried. In support of
prosecution case seven witnesses were
examined.

9. P.W.1-Madan Rai has stated that he
has a residential house having an area of 34 kita and appurtenant land. He has further
stated that he has a tubewell which is three
furlong from his house and tubewell is on
the agricultural land. He has further stated
that Munni Rai is his uncle and Virendra
Rai is his cousin brother. He has stated that
his uncle Munni Rai is living with him and
cousin Virendra also lives in the same
house. The accused persons are friendly to
each other and live together. He has further
stated that the incident is of 2/3 months
back and there was Barkhi of uncle of Ram
Chhabila Rai. In the aforesaid occasion,
Ram Chhabila Rai has invited for dinner.
However, his uncle was not invited and as
such the witness could not go on the
8 INDIAN LAW REPORTS ALLAHABAD SERIES
invitation and the aforesaid non-acceptance
of the invitation has annoyed Radha Mohan
and Ram Chhabila. One month prior to the
incident the witness was arranging the
bricks in the open field near his house
when Radha Mohan and Ram Chhabila had
stopped the witness from keeping the
bricks as he wanted a way to his house
from the aforesaid open land. With regard
to the aforesaid dispute, a panchayat was
held on 20th April, 1980. The witness in
panchayat admitted to give way on the
eastern corner of the land. However, Radha
Mohan did not agree for the same. Radha
Mohan in front of the panchayat caught
hold the neck of the witness and abused
and, thereafter, stated that he will take
passage after finishing the witness. The
dispute was subsided by intervention of the
panchayat. On 27th May, 1980 at about
11.30 pm when the witness was at his
tubewell along with his cousin Birendra
and Uncle Munni Rai and were sleeping
there on different cots and the lantern was
burning near the tubewell and it was full
moon night. The electricity was not coming
on the tubewell and all the three persons
were awaken. From the south, accused
persons Radha Mohan, Ram Kripal and
Chandrama along with 5-6 other accused
persons came along with lathi and country
made pistol. The witness on seeing them
confronted them, then the accused Radha
Mohan said to the other accused persons to
kill the witness and other two persons being
uncle and cousin brother as they are all
together. On the aforesaid, all the accused
persons started beating all of them and as a
result of the same, the uncle and Birendra
sustained injuries and they fell down and
then accused Radha Mohan thought that
they have died and as such they ran away.
The accused persons have beaten the
witness with lathi and the witness could
identified Radha Mohan, Ram Kripal and
Chandrama but did not recognize the other
persons. On the distress call, accused
persons ran away and the villagers came.
The injured persons were serious and uncle
was taken by villagers on cot and
remaining injured persons were also taken
to the hospital by rickshaw. The position of
his uncle was serious and medical aid was
provided in the hospital. In the morning,
first information report was lodged, which
is Ex.Ka.1. The said report was lodged at
Police Station Phephna. Thereafter, the
Investigating Officer went to the place of
occurrence along with informant from
where the blood stained soil was recovered
and recovery memo was prepared and same
is marked as Ex.Ka.2. He has further stated
that at the place of occurrence the witness
has shown the lantern to the Investigating
Officer, who had seen the same and,
thereafter, had given in the supurdagi of the
witness and the supurdagi memo was
prepared, which is Ex.Ka.3. He has further
stated that the lantern is with him.
However, he has not brought the same to
the court.

10. P.W.2-Birendra Rai has stated that
on 26th May, 1980, occurrence took place
at about 11.30 pm. The sky was clear and it
was a full moon night. They were sleeping
near the tubewell on the cot but was away.
The lantern was burning then Radha
Mohan, Ram Kripal and Chandrama along
with 5-6 persons came with lathi and
countrymade pistol from the north side and
when Madan Rai confronted them, then
Radha Mohan stated to the other accused
persons to kill them as they are all together
and on the aforesaid, accused persons
started beating with lathi. He has further
stated that all the three persons were
beating and as a result of beating, present
witness and his uncle fell down and the
accused persons thought that we have died
11 All. Radha Mohan Rai Vs. State of U.P.
9
and as such they went away. The accused
persons were beating the injured for 10
minutes and after the accused persons left,
villagers came, to whom the incident was
narrated and injured were taken to the
hospital where the uncle was admitted and
Madan Rai also sustained injuries.

11. P.W.3-Sri I.B.D. Dwivedi has
stated that on 5th June, 1980 he was posted
at Sadar Hospital as Radiologist and on the
said date he had X-rayed the skull of
Munni Rai and the X-ray was marked as
Ex.I. On the basis of the X-ray, he found
there was a fracture in the head and the Xray report was marked as Ex.Ka.4.

12. P.W.4-Ram Sagar Rai has stated
that he knows Madan Rai, Radha Mohan
and Ram Chhabila and about 1 and 1⁄2 years
from today, for the bricks and right of way
a panchayat was held. He was present in
the aforesaid panchayat. Madan Rai wanted
to construct house on the open land and as
such had kept bricks on the aforesaid land.
However, Radha Mohan and Chhabila were
opposing the same, they wanted right of
way on the middle of the land. Madan Rai
agreed to give right of way on the eastern
corner of the land. In the panchayat Radha
Mohan caught hold the neck of Madan Rai
and stated that he will crush the neck if the
way was not provided in the middle of the
land. The persons there however, defused
the situation. After one month at about
11.30 pm, witness was at his agricultural
field and he heard some noise and the same
was coming from the side of the tubewell
of Madan Rai. It was a full moon night.
The electricity was not there. He went there
and saw that Madan Rai, Munni Rai and
Birendra were injured and when the said
witness asked them what has happened,
Madan Rai has informed that Radha
Mohan, Chandrama and Ram Kripal along
with 5-6 persons have come with lathi and
countrymade firearm and they have beaten
the aforesaid three persons and as a result
of the same, they had sustained injuries.
Munni Rai was taken to the hospital on cot
and Madan Rai and Birendra were given
support and taken to the hospital.

13. P.W.5-Dr. Arun Kumar has
medically examined the injured persons
and has found the following injuries:-

Injuries of Munni Rai:-

1. Lacerated wound 6 cm X 1/2
cm X bone deep present on forehead 5 cm
above eye brow. Bleeding present.

2. Lacerated wound 4 cm X 1/2
cm X bone deep present on left eye brow.
Bleeding present.

3. Lacerated wound 1/2 cm X 1/2
cm on the zygamatee part of face left side.
Bleeding present.

4. Lacerated wound 1/2 cm X 1/2
cm present 1 cm away from Injury no.III in
the zygamatee part of face left side.
Bleeding present.

5. Lacerated wound 3 cm X 1/2
cm muscle deep on the part of parietal
region right side 10 cm above pinna.

Supplementary injury report of
Munni Rai

Injury No.I, II, III, IV & V kept
U.O.

Injury No.I is grevious and others
simple vide X-ray no.183 dated 5.6.80 of
District Hospital Ballia. All injuries caused
by hard & blunt object.

Past x-rayed - X ray skull

Findings - Fracture parietal bone

Injuries of Virendra Rai:

1. A linear lacerated wound on
middle of of scalp at the junction of both
parietal region 12 cm above right pinna, 3
cm X 1/4 cm X skin deep. Blood clot
present.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

2. A contusion 4 cm X 4 cm at the
nape of neck. Redish color

3. An abrated contusion on front
of chest (L) side 5 cm X 5 cm, 4 cm below
the sternoclevicular joint.

4. A linear abrasion 4 cm X 2 cm
just above left nipple. Redish colour.

5. A contusion on dorsum of right
hand, 3 cm X 3 cm at the junction of thumb
index finger. Redish colour.

6. An abrasion 2 cm X 2 cm
infront of right upper arm, 10 cm below
acronioclavial joint. Redish colour.

Injuries of Madan Rai:-

1. A linear lacerated wound 2.5
cm X .5 cm X skin deep on fore head 7 cm
above left eyebrow. Blood clot present.

2. An abrasion 2 cm X 2 cm on
the root of front of neck left side just above
sternoclavicular joint left side. Redish
Colour.

3. An abrasion 2 cm X 2 cm on
front of chest. Left side just below middle of
left clevicle. Redish colour

4. An abrated contusion 6 cm X 6
cm on front of left upper arm 3 cm below
left
acronio
clevicular
joint.
Purple
coloured.

5. An abrasion 19 cm X 2 cm on
back of chest right side extending from
right acronio clevicular joint to 2nd
thoracic vertibra centre. Redish colour.

6. A contusion 3 cm X 3 cm on
dorsum of hand between thumb and index
finger left side. Redish colour.

7. A contusion 3 cm X 3 cm on
dorsum of hand right side, between thumb
and index finger. Redish colour.

14. In support of the prosecution case
the prosecution has proved the following
documents :-

15. Memo of report as Ex.Ka.1,
Recovery of blood stained clothes as
Ex.Ka.2, Memo of lantern as Ex.Ka.3, Xray report of Munni Rai as Ex.Ka.4, Injury
report of Munni Rai as Ex.Ka.5, Injury
report of Birendra Rai as Ex.Ka.6, Injury
report
of
Madan
Rai
as
Ex.Ka.7,
Supplementary report of Munni Rai as
Ex.Ka.8, First Information Report as
Ex.Ka.9, Recovery Memo of Bamboo
clump as Ex.Ka.10 and site plan with index
as Ex.Ka.11.

16. Appellant and other accused
persons in the statement under section 313
Cr.P.C. have denied the charges and stated
that they have been falsely implicated due
to enmity.

17. Appellant in support of his
defence has examined Chandramani as
D.W.1.

18. The prosecution case is to the
effect that Madan Rai had enmity with Ram
Chabila Rai regarding the meals together.
Radha Mohan is relative of Ram Chabila.
About one month prior to the incident Ram
Chabila Rai wanted passage to his house
through the adjoining land of the house of
the informant. Informant had promised
Ram Chabila Rai to give passage from the
side of his house however, Ram Chabila
Rai did not agree to the same. A panchayat
in this respect was also held where the
informant had accepted for giving passage
to Ram Chabila Rai from side of the house
of informant. Radha Mohan became
annoyed and in the panchayat threatened
informant by throttling his neck and said
that he will take passage after finishing
informant. The other persons present in the
panchayat intervened and since then Radha
Mohan is inimical to the informant.

19. On 27th May, 1980, informant
and his cousin Birendra Rai and uncle
11 All. Radha Mohan Rai Vs. State of U.P.
11
Munni Rai were sleeping near the tube well
in mauja Maisurpur. At about 11:30 PM in
the night Radha Mohan Rai, Ram Kripal
and Chandrama Rai along with five to six
other persons armed with lathi and country
made pistol came to the aforesaid place.
There was no electricity at the tube well but
the lantern was burning. The informant was
awake. When the informant saw accused
persons coming, he exclaimed, on this
Radha Mohan said to the other accused
persons to kill the informant and his
relatives and thereafter, accused persons
started beating the informant, his cousin
brother and uncle Munni Rai. The accused
persons inflicted grievous injuries on the
uncle and cousin of the informant.
Informant, his cousin and his uncle has
recognised the three accused persons in the
moonlight and in light of lantern. On the
cry of the informant, other persons in the
vicinity arrived there and thereafter, the
accused persons left the cousin brother and
uncle thinking them to be dead. Informant's
family members took injured three persons
to the hospital on the same night. The
condition of the cousin brother and the
uncle was serious and informant after
getting medically examined came to police
station to lodge the first information report.
The first information report was lodged on
28th May, 1980 at 8:30 AM at Police
Station- Phepna, which is 6 miles away
from the place of occurrence.

20. The prosecution has examined
Informant-Madan
Rai
as
P.W.1. The
aforesaid
witness
has
supported
the
prosecution
case.
Informant
is
the
eyewitness of the alleged incident. The
prosecution has further examined Birendra
Rai as P.W.2. The aforesaid witness has
supported the prosecution case and has
stated that on 27th May, 1980 the incident
has taken place at about 11:30 PM. He has
stated that it was a moonlight night. He was
sleeping on cot near the tube well and was
awake and towards the north his cousin
brother was sitting on the platform and on
the south his uncle Munni Rai was lying
while he was awake. Lantern was burning
near the tube well. Radha Mohan, Ram
Kripal Singh and Chandrama Rai along
with 5 to 6 persons came armed with lathi,
country made pistol from the north. On
coming of the accused persons, Madan Rai
asked for the reason of the accused persons
to come. On the aforesaid Radha Mohan
Rai stated to other accused persons to beat
the informant and his cousin and uncle. The
accused persons started beating all the three
persons. The witness has stated that the
aforesaid persons were beating with stick.
On beating the said witness his uncle fell
down and the accused persons thinking that
the witness and his uncle has died and they
left away. On the same night, the witness
and his uncle was admitted in the hospital
and Madan Rai also suffered injuries.

20.
 The
prosecution
has
also
examined Dr. I.B.D. Dwivedi as P.W.3. The
aforesaid witness has stated that on fifth of
June 1980 he was posted at Ballia Sadar
Hospital as radiologist. He had conducted
X-ray of the skull of Munni Rai. He found
fracture in the front of the head. He has
further proved the x-ray report, which is
marked as Ex.Ka-4.

21. The prosecution has further
examined Ram Sagar Rai as P.W.4. He is
stated that he knows Madan Rai, Radha
Mohan and Ram Chhabila. About one and
11⁄2 year prior to the said incident there was
a panchayat held for passage and bricks. He
was present in the aforesaid panchayat.
Madan Rai was keeping bricks in his land
for construction of the house then Radha
Mohan and Ram Chhabila stated that he
12 INDIAN LAW REPORTS ALLAHABAD SERIES
should remove the bricks and opened the
passage. Madan Rai stated that he will need
passage on the western side. In the
panchayat, Radha Mohan caught hold the
neck of Madan Rai and stated that he will
throttle the neck if the passage not left. On
the intervention of the witness and other
persons, the matter was diffused. One
month
after
the
above-mentioned
panchayat at about 11:30 PM witness was
on his agricultural field and he heard
distress call and thereafter he went towards
the tube well of Madan Rai where lantern
was burning. Madan Rai, Munni Rai and
Birendra were injured. On query being
made, it was informed by them that Radha
Mohan, Ram Chhabila and other persons
who were armed with stick and country
made pistol have beaten the three persons
with stick and as a result of the same,
injuries have been sustained.

22. The prosecution in support of the
prosecution case has further examined Dr.
Arun Kumar as P.W.5. He submitted that on
28th May, 1980 at about 1:45 PM he was
posted at District Hospital, Ballia. He has
further stated that he had examined Munni
Rai alias Ganesh Rai on the said date and
had found injuries. He has also examined
Birendra Rai who has also sustained
injuries. He has further stated that on the
same day he had also examined Madan Rai
and had found injuries. He has further
stated that he had prepared the injury report
of Munni Rai, Madan Rai and Birendra and
same was marked as Ex.Ka.5, Ex.Ka.6 and
Ex. Ka.7.

23. The P.W.6-M.N.Pathak and Ram
Paramhans Singh are the formal witness.

24. It is submitted by counsel for the
appellant that the injured Munni Rai was
not produced before the court and as such
the case of the prosecution is highly
improbable. It is submitted by counsel for
the appellant that adverse inference be
drawn for the non-production of the
aforesaid witness has the aforesaid witness
was in worse condition and was badly
injured. It is to be seen that the presence of
the witnesses together with the testimony
of P.W.1 and P.W.2 who are the eyewitness
of the alleged incident and has proved the
prosecution case is sufficient to establish
the prosecution case against the appellant.
The testimony of P.W.1 and P.W.2 has not
been shaken in the cross examination nor
the counsel for the Appellant has pointed
out any material contradiction which goes
to the root of the prosecution case. The
testimony of P.W.1 and P.W.2 has been
found to be reliable and trustworthy. The
aforesaid witnesses are the eyewitness of
the alleged incident. The failure to examine
the other witnesses is inconsequential. It is
the quality of evidence and not the number
of witnesses that are material. The injuries
sustained by Munni Rai has been duly
proved by the prosecution witness no 5.

25. In Prithipal Singh v. State of
Punjab, (2012) 1 SCC 10, it was held as
under :-

"49. This Court has consistently
held that as a general rule the court can
and may act on the testimony of a single
witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the sole testimony of a single
witness. That is the logic of Section 134 of
the Evidence Act. But if there are doubts
about the testimony, the court will insist on
corroboration. In fact, it is not the number
or the quantity, but the quality that is
material. The time-honoured principle is
that evidence has to be weighed and not
counted. The test is whether the evidence
11 All. Radha Mohan Rai Vs. State of U.P.
13
has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system
has laid emphasis on value, weight and
quality of evidence, rather than on quantity,
multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to fully
and completely rely on a solitary witness
and record conviction. Conversely, it may
acquit the accused in spite of testimony of
several witnesses if it is not satisfied about
the quality of evidence."

25. There is no legal hurdle in
convicting a person on the sole testimony of a
single witness, if his version is clear and
reliable, for the principle that the evidence
has to be weighed and not counted. If the
testimony of a single witness is found by the
court to be entirely reliable, there is no legal
impediment in recording the conviction of the
accused on such proof. The law of evidence
does not require any particular number of
witnesses to be examined in proof of a given
fact. However, faced with the testimony of a
single witness, the court may classify the oral
testimony into three categories, namely, (i)
wholly reliable, (ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly
unreliable. In the first two categories there
may be no difficulty in accepting or
discarding the testimony of the single
witness. The difficulty arises in the third
category of cases. The court has to be
circumspect and has to look for corroboration
in material particulars by reliable testimony
in respect of third category.

26. The legal position is found in the
statutory provision in Section 134 of the
Evidence Act, 1872, which reads:

"134. Number of witnesses.--No
particular number of witnesses shall in
any case be required for the proof of any
fact."

27. Legal system in the country does
not insist on plurality of witnesses. The
Evidence Act, 1872 does not mandate that
there must be particular number of
witnesses to record an order of conviction
against the accused. Our legal system has
always laid emphasis on value, weight and
quality of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to
fully and completely rely on a solitary
witness and record conviction. Conversely,
it may acquit the accused in spite of
testimony of several witnesses, if it is not
satisfied about the quality of evidence.

28. The law does not require that the
prosecution
must
examine
all
the
eyewitnesses cited by the prosecution.
When the evidence of two eyewitnesses,
PW 1 and 2 was found worthy of
acceptance to prove the case, then it was
not necessary for the prosecution to
examine any more eyewitnesses. It is for
the prosecution to decide as to how many
and who should be examined as their
witnesses for proving their case. Therefore,
this court does not find any merit in this
submission of the appellant.

29. It is further submitted by counsel
for the Appellant that the only source of
light at the place of alleged incident was
lantern and as such it is improbable that the
Appellant could have been recognised by
the witnesses.

30. It is to be noted that as per the
prosecution case the incident/occurrence
has taken place at 11:30 PM in the night.
The prosecution witnesses have stated that
lantern was burning at the place of incident
when the occurrence took place. Moonlight
was available at the aforesaid time and the
sky was clear. It is also to be noted that
14 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons and the complainant and
injured were known to each other and have
participated in the panchayat for resolving
the dispute. The trial court has recorded a
finding that the complainant and victims
were well-known with the accused and that
there are every chances that they will be
identified by their appearance and voice
also. The trial court has further recorded
finding that the physical assault had taken
place for a long time and there was
sufficient light. On the aforesaid basis, trial
court has come to the conclusion that there
was
sufficient
opportunity
for
the
prosecution
witness/victims
to
have
identified the accused. Learned counsel for
the appellant has not been able to
demonstrate the perversity in the finding
recorded by the trial court. The burning of
lantern at the place of occurrence has been
testified by the prosecution witnesses. The
victim were known to the accused persons,
under such circumstances the identification
of the accused persons cannot be faulted
and no benefit can be granted to the
appellant.

31. Learned counsel for the appellant
has also submitted that the dispute/motive
of the alleged incident as claimed by the
prosecution is the dispute with regard to
passage. The nature of dispute was not of
such magnitude which would have resulted
in physical assault as has been claimed by
the prosecution. The prosecution case rests
upon the fact that the accused Radha
Mohan Rai was claiming passage from the
land adjoining the house of the informant.
The aforesaid land belongs to informant. In
respect of aforesaid dispute, a panchayat
was also held between the parties where
Appellant had threatened the informant of
taking land after killing the informant. The
matter was defused in the panchayat by
intervention of other persons. Subsequently,
appellant along with the other accused
persons had visited the place where the
informant and other injured persons were
sleeping and physically assaulted as a result
of the same, informant and his cousin
brother and uncle also sustained injuries.
The accused persons were carrying lathi
and country made pistol along with them.
The demand for passage by Appellant on
the land of informant and when the same
was not given to the satisfaction of
Appellant, he has tried to force the demand
using physical assault. The nature of injury
sustained by the injured persons is
indicative of the fact that the accused
persons had physically assaulted injured
including the informant which arises out of
the demand for passage from the land of
informant. The motive of Appellant and
other accused persons can be asserted from
the attending circumstances.

32. Learned counsel for the appellant
submitted that Section 149 of the Indian
Penal Code is not attracted as no five
persons were found to be involved in the
aforesaid incident. In the present case, the
trial court on the basis of the evidence has
sustained the conviction of the appellant
under Section 323 read with Section 149
and 147 of the Indian Penal Code. Section
141 of the Indian Penal Code defines the
unlawful assembly as an assembly of five
or more persons, if the common object of
the present composing that assembly is to
commit any offence as enumerated therein.
One of the essential ingredients of the
unlawful assembly is that it should
comprise of more than four persons. In the
present case, as per the first information
report,
accused
Radha
Mohan
Rai
(Appellant), Ram Kripal and Chandra Rai
along with five to six other persons came
with stick and country made pistol at the
place of occurrence at 11:30 PM in the
11 All. Radha Mohan Rai Vs. State of U.P.
15
night. The aforesaid case of prosecution of
involvement of more than four persons in
the alleged crime has been proved by P.W.1
and P.W.2. The charge in the present case
was framed on 19th September, 1981
against three accused persons namely the
Appellant, Ram Kripal and Chandrama. It
has been stated by the prosecution
witness/injured witness that they can
identify the other persons who were part of
the unlawful assembly on seeing them.
Nothing has been brought on record to
demolish the aforesaid prosecution case
which is supported by reliable and
trustworthy testimony of the P.W.1 and
P.W.2. Under the aforesaid circumstances,
apart from the three main accused persons
there were 5 to 6 more persons who were
involved in the alleged offence. The trial
court by impugned judgment has acquitted
Chandrama
Rai
and
have
convicted
Appellant and Ram Kripal.

33. The Apex Court in the case of
Mahendra v. State of M.P. (SC) Criminal
Appeal No.30 of 2022 (Arising out of
SLP(Crl.) No.6530 of 2018) decided on
5.1.2022 has observed as under:-

"The legal position in regard to
essential ingredients of an offence referred
to in Section 149 are settled. Section 149
prescribes for vicarious or constructive
criminal liability for all members of an
unlawful assembly where an offence is
committed by any member of such an
unlawful assembly in prosecution of the
common object of that assembly or such as
the members of that assembly knew to be
likely to be committed in prosecution of that
object.

It may be noted that the essential
ingredients of Section 149 of Indian penal
code are that the offence must have been
committed by any member of an unlawful
assembly , and Section 141 makes it clear
that it is only where five or more persons
constituted an assembly that an unlawful
assembly is born, provided, of course, the
other requirements of the said section as to
the
common
object
of
the
persons
composing that assembly are satisfied. It is
an essential condition of an unlawful
assembly that its membership must be five
or more.

At the same time, it may not be
necessary that five or more persons
necessarily be brought before the Court
and convicted. Less than five persons may
be charged under Section 149 if the
prosecution case is that the persons before
the Court and other numbering in all more
than five composed an unlawful assembly,
these others being persons not identified
and unnamed."

34. It is the case of the prosecution
that
there
are
other
unnamed
or
unidentified persons other than the one who
charge-sheeted
and
faced
trial.
The
appellant cannot get the benefit of acquittal
of the co-accused Chandrama Rai as even
excluding Chandrama Rai there were other
persons were part of the unlawful assembly
and such persons constitute more than four
persons.

35. Learned counsel for the petitioner
further submitted that the prosecution case
is highly improbable on account of the fact
that it is not natural to sleep in the open
when the house of the injured was nearby.
It is to be noted that the informant was
having agricultural field nearby and tube
well was also available on the agricultural
field of the informant. In villages it is
common to sleep near the tube well,
specifically when the agricultural fields are
to be irrigated. It is also common that more
than one person usually sleeps on the tube
16 INDIAN LAW REPORTS ALLAHABAD SERIES
well as the tube well are situated in a lonely
place on the agricultural field and to ensure
safety many persons sleep as a security
measure. There is nothing unnatural about
the conduct of informant and injured
witnesses in sleeping near the tube well in
the agricultural field. It is also to be noted
that the incident alleged to have in the
month of May 1980. The electricity was not
coming in the village at the relevant time as
is
stated
in
the
testimony
of
the
eyewitness/injured
witness.
Under
the
circumstances sleeping in the agricultural
field by itself would not make the
prosecution
case
unbelievable
or
improbable.

36. It is further submitted that
Chandrama Rai has been acquitted by the
trial court. On the basis of acquittal of
Chandrama Rai, it is stated that the
appellant also entitled to the aforesaid
benefit. The trial court has given the benefit
of doubt on account of enmity to the coaccused however there is eyewitness
account of the alleged incident in which the
appellant has been named by the injured
witness including the informant. The
incident is supported by the injuries
sustained by the injured witness which has
been duly proved by the prosecution
witness by examining the doctor who has
prepared the injury report. Nothing has
been brought by the defence before the trial
court which denies the complicity of the
Appellant in the alleged offence. The
prosecution has proved its case by reliable
evidence.

37. It is to be noted that the trial court
in the impugned judgement has recorded
finding that the offence under section 307
of the Indian Penal Code read with Section
34 of IPC, it is not established against the
accused persons. The trial court has further
recorded finding that the accused persons
as per the prosecution case were also
carrying firearm and spears however no
injury was found on the body of the injured
in respect of firearm and spear and,
therefore, the charge under section 307 read
with section 149 of the Indian Penal Code
was held to be not established.

38. The trial court has further held
that the offence under section 325 read with
section 149 of the Indian Penal Code
cannot be maintained in the facts and
circumstances of the case.

39. The accused persons were known
to the complainant-informant and other
injured persons and there are chances that
the accused person could have been
identified by their appearance and voice. It
is also to be noted that the physical assault
is taking place for the long time and the
voice of the accused person was heard and
further there was source of light at the
place of occurrence which was proved by
the prosecution. It is further to be seen that
Madan Rai, Birendra Rai and Munni Rai
were the only person who had seen the
occurrence and were also the victims.
There was no one else who had seen the
aforesaid physical assault. Munni Rai was
taken
to
the
hospital
for
medical
examination and treatment. All the three
injured witnesses have sustained injuries
and the injury report has been duly proved
by the prosecution. The physical assault by
the Appellant on the injured witnesses
including the informant has also been
proved by the prosecution by testimony of
P.W.1 and P.W.2 who are the eyewitness of
the alleged incident. The accused person
including the appellant came along with
five-six persons with the common object of
committing the crime/offence and as such
the trial court has committed no illegality in
11 All. Puttan Vs. State of U.P.
17
convicting the appellant by impugned
judgement.

40.

Considering
the
overall
circumstances and submission of learned
counsel for the appellant, learned A.G.A.
for the State and after going through the
evidence and lower court record, we are
unable to persuade ourselves in taking a
different opinion from that of trial court.
The trial court was fully justified in
convicting the accused-respondent.

41. Learned counsel for the appellant
failed to point out any illegality, infirmity
or perversity in the judgment of the trial
court.

42. The appeal lacks merit and is,
accordingly, dismissed.

43. Registrar General of this Court is
directed to pay an honorarium of Rs.
20,000/- to Sri Raj Kumar Sharma, learned
Amicus Curiae for rendering effective
assistance in the appeal.

44. Let the lower court record be
transmitted back to court below along with
a copy of this order.
----------
(2022) 11 ILRA 17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Jail Appeal No. 725 of 2017

Puttan ...Appellant
Versus
State of U.P. ...Opposite Party
Counsel for the Appellant:
From Jail, Sri Sushil Kumar Dwivedi

Counsel for the Opposite Party:
A.G.A., Sri Ram Lal Mishra

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal
Code, 1860 -Sections 34, 299, 300,
300(4), 302 & 304 Part -I - Jail Appeal -
against
conviction
&
sentence
-
Life
imprisonment
with
fine
-
quantum
of
punishment - offence of murder - FIR -
Informant allegations that when accused
(appellant) quarrel with his mother for a
money matter, he assaulted on her with
intention to kill her with an axe, resulted she
died on the spot - Evaluation of Evidences -
while considering the St.ment of accused u/s
313 Cr.P.C. into account court astonished that
why the real brother (informant) standing
there does not even tried to save his mother -
though the St.ment u/s 313 Cr.P.C.