# Ram Ashrey v. State of U.P

- **Citation:** (2019) 2 ILRA 261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Criminal Appeal No. 1180 of 2003
- **Bench:** Ved Prakash Vaish, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ashrey-v-state-of-u-p-44728
- **Pages:** 27

## Headnote

A. Code of criminal procedure 1973 -
Section 384 (Summary dismissal of appeal
), Section 385 (Procedure for hearing
appeals not dismissed summarily ) and
Section 386 Cr.P.C (Powers of the Appellate
Court) - that a criminal appeal cannot be
dismissed for default or as not pressed -
The Court has to decide the appeal on
merits and pass final orders - criminal
appeal, if not dismissed summarily and has
been admitted for hearing, must be
considered and disposed of on merits
irrespective of the
fact
whether the
appellant or his counsel or the public
prosecutor is present or not or even if the
appeal has been "not pressed". (Para 4 & 9)

B. Indian Evidence Act, 1872 - Section
134 - Number of witnesses -no legal
impediment in convicting a person on
the sole testimony of a single witness - if
there are doubts and suspicion about the
testimony of such a witness the courts
will insist on corroboration- court to act
upon the testimony of witnesses - not
262 INDIAN LAW REPORTS ALLAHABAD SERIES
the number, the quantity, but the quality
which is material - evidence has to be
weighed and not counted - The test is
whether the evidence has a ring of truth
around
it,
is
cogent,
credible
and
trustworthy, or otherwise. (Para 25 & 26)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,605 of 87,311. This is a partial read: ask again with offset=39605 for what follows._

2 All. Ram Ashrey Vs State of U.P.
261
as 'interested'. The term 'interested' postulates
that the witness has some direct or indirect
'interest' in having the accused somehow or
other convicted due to animus or for some
other oblique motive. A close relative cannot
be characterized as an 'interested' witness. He
is a 'natural' witness. His evidence, however,
must be scrutinized carefully. If on such
scrutiny his evidence is found to be
intrinsically reliable, inherently probable and
wholly trustworthy, conviction can be based
on the 'sole testimony of such witness. (See-
Harbans Kaur and another vs. State of
Haryana, 2005 AIR SCW 2074; Namdeo
vs. State of Maharashtra, 2007 AIR SCW
1835; Sonelal vs. State of M.P., 2008 AIR
SCW 7988; and Dharnidhar vs. State of
Uttar Pradesh and Others & other
connected appeals, (2010) 7 SCC 759).

19. Taking the cumulative effect of
the evidence, we are of the considered
opinion that the trial Court was fully
justified in convicting the accusedappellants. The impugned judgment and
order deserves to be affirmed and
accordingly, the same is affirmed.

20. Appeal has no substance, the
same is, accordingly, dismissed. The
appellants are reported to be on bail, they
be taken into custody forthwith to serve
the remaining sentence.

21. We appreciate the assistance
rendered by Sri Ram Milan Dwivedi,
learned Amicus, who has argued on
behalf of appellant no.1. The State
Government is directed to pay Rs.5000/-
to the Amicus towards his remuneration.

22. Let a copy of this judgment be
sent to the concerned trial Court for
compliance.
----------
(2019)10ILR A 261

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.09.2019

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 1180 of 2003

Ram Ashrey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sampurnanand, Sri A.P. Singh, Sri
Amar Nath Dubey., Sri Md. Abid Ali, Sri
Ravi Shankar Singh, Sri Sachin Pratap
Singh.

Counsel for the Respondent:
Govt. Advocate.

A. Code of criminal procedure 1973 -
Section 384 (Summary dismissal of appeal
), Section 385 (Procedure for hearing
appeals not dismissed summarily ) and
Section 386 Cr.P.C (Powers of the Appellate
Court) - that a criminal appeal cannot be
dismissed for default or as not pressed -
The Court has to decide the appeal on
merits and pass final orders - criminal
appeal, if not dismissed summarily and has
been admitted for hearing, must be
considered and disposed of on merits
irrespective of the
fact
whether the
appellant or his counsel or the public
prosecutor is present or not or even if the
appeal has been "not pressed". (Para 4 & 9)

B. Indian Evidence Act, 1872 - Section
134 - Number of witnesses -no legal
impediment in convicting a person on
the sole testimony of a single witness - if
there are doubts and suspicion about the
testimony of such a witness the courts
will insist on corroboration- court to act
upon the testimony of witnesses - not
262 INDIAN LAW REPORTS ALLAHABAD SERIES
the number, the quantity, but the quality
which is material - evidence has to be
weighed and not counted - The test is
whether the evidence has a ring of truth
around
it,
is
cogent,
credible
and
trustworthy, or otherwise. (Para 25 & 26)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

1.
Jeetu
&
ors.
Vs
St.
of
CG.
MANU/SC/1056/2012

2. Dilip S. Dahanukar Vs Kotak Mahindra Co.
Ltd. & anr. MANU/SC/1803/2007 (2007) 6 SCC
528

3. Babu Rajirao Shinde Vs St. of Mah.
MANU/SC/0072/1971: (1971) 3 SCC 337

4. Siddanna Apparao Patil Vs St. of Mah.
MANU/SC/0190/1970: (1970) 1 SCC 547

5. Padam Singh Vs St. of U.P. (2000) 1 SCC
621

6. Bani Singh & ors. Vs St. of U.P (1996) 4
SCC 720

7. Rishi Nandan Pandit & ors. Vs St. of Bihar
(1999) 8 SCC 644

8. Vadivelu Thevar Vs St. of Madras AIR 1957
SC 614

9. Jagdish Prasad Vs St. of M.P. (AIR 1994 SC
1251)

10. Lallu Manjhi Vs St. of Jhk. AIR 2003 SC 854

11. Sucha singh Vs St. of Punj. AIR 2003 SC
3617

12.
Masalti
&
ors.
Vs
St.
of
U.P.
MANU/SC/0074/1964

13. St. of Punj. Vs Jagir Singh (AIR 1973 SC
2407)

14. Lehna v. St. of Har. (2002 (3) SCC 76)

15. Krishna Mochi & ors. Vs St. of Bihar etc
(2002 (4) JT (SC) 186)

16. St. of Guj. Vs J.P Varu 2016 Cr.L. J 4185
(SC)

17. Raj Kumar Singh alias Raju alias Batya Vs
St. of Raj. AIR 2013 SC 3150

18. Gangabhavani Vs Rayapati Venkat Reddy &
ors. MANU/SC/0897/2013

19. St. of Raj. Vs Smt. Kalki & anr.
MANU/SC/0254/1981: AIR 1981 SC 1390

20. Sachchey Lal Tiwari Vs St. of U.P.
MANU/SC/0865/2004: AIR 2004 SC 5039

21. Bhagaloo Lodh & ors. Vs St. of U.P.
MANU/SC/0700/2011

22. Sucha Singh & ors. vs. St. of Punj.
MANU/SC/0527/2003

23.
Appabhai
&
ors.
Vs
St.
of
Guj.
MANU/SC/0028/1988

24. Rana Pratap & ors. Vs St. of Har. 1988 (3)
S.C.C. 327

25.
St.
of
U.P.
Vs
Devendra
Singh
MANU/SC/0343/2004

(Delivered by Hon'ble Ved Prakash
Vaish. J. & Hon'ble Mohd. Faiz Alam
Khan J.)

1. Heard learned counsel for the
appellant/Shri Sachin Pratap Singh as
well as learned Addl. G.A. for the State
and perused the material on record.

2. This Criminal Appeal has been
preferred against the judgment and order
dated 11.07.2003 passed by learned
Additional Sessions Judge (F.T.C.) IIIrd,
Pratapgarh in Sessions Trial No. 185 of
2002, arising out of Case Crime No. 127
of 2001, under Section 302, 148, 323/149
and under Section 506 I.P.C., Police
Station Baghrai, District Pratapgarh.
2 All. Ram Ashrey Vs State of U.P.
263

3. Shri Sachin Pratap Singh, learned
counsel for the appellant on the basis of
the instructions received by him from his
client/appellant namely Ram Ashrey,
who has been released from Jail on the
basis of remission of sentence granted by
the State Government, submits that he do
not want to press the appeal. Learned
counsel for the appellant also endorsed on
the Memo of Appeal that he do not want
to press the appeal on merits and the same
be dismissed as not pressed.

4. In this regard, provisions of
Section 384, 385 and 386 Cr.P.C. are
relevant, which are being reproduced as
under:

384. Summary dismissal of
appeal.-(1) If upon examining the petition
of appeal and copy of the judgment
received under section 382 or section 383,
the Appellate Court considers that there is
no sufficient ground for interfering, it
may dismiss the appeal summarily:

Provided that-

(a) no appeal presented under
section 382 shall be dismissed unless the
appellant or his pleader has had a
reasonable opportunity of being heard in
support of the same;

(b) no appeal presented under
section 383 shall be dismissed except
after giving the appellant a reasonable
opportunity of being heard in support of
the same, unless the Appellate Court
considers that the appeal is frivolous or
that the production of the accused in
custody before the Court would involve
such
inconvenience
as
would
be
disproportionate in the circumstances of
the case;

(c) no appeal presented under
section 383 shall be dismissed summarily
until the period allowed for preferring
such appeal has expired.

(2) Before dismissing an appeal
under this section, the Court may call for
the record of the case.

(3) Where the Appellate Court
dismissing an appeal under this section is a Court
of Session or of the Chief Judicial Magistrate, it
shall record its reasons for doing so.

(4) Where an appeal presented
under section 383 has been dismissed
summarily under this section and the
Appellate Court finds that another petition
of appeal duly presented under section
382 on behalf of the same appellant has
not been considered by it, that Court may,
notwithstanding anything contained in
section 393, if satisfied that it is necessary
in the interests of justice so to do, hear
and dispose of such appeal

385. Procedure for hearing
appeals not dismissed summarily.-(1) If
the Appellate Court does not dismiss the
appeal summarily, it shall cause notice of
the time and place at which such appeal
will be heard to be given-

(i) to the appellant or his
pleader;

(ii) to such officer as the State
Government may appoint in this behalf;

(iii) if the appeal is from a
judgment of conviction in a case instituted
upon complaint, to the complainant;

(iv) if the appeal is under
section 377 or section 378, to the accused,
264 INDIAN LAW REPORTS ALLAHABAD SERIES
and shall also furnish such officer,
complainant and accused with a copy of
the grounds of appeal.

(2) The Appellate Court shall
then send for the record of the case, if
such record is not already available in that
Court, and hear the parties:

Provided that if the appeal is
only as to the extent or the legality of the
sentence, the Court may dispose of the
appeal without sending for the record.

(3) Where the only ground for
appeal from a conviction is the alleged
severity of the sentence, the appellant
shall not, except with the leave of the
Court, urge or be heard in support of any
other ground.

386. Powers of the Appellate
Court.-After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he
appears, and in case of an appeal under
section 377 or section 378, the accused, if
he appears, the Appellate Court may, if it
considers that there is no sufficient
ground for interfering, dismiss the appeal,
or may-

(a) in an appeal from an order or
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re-tried or committed for trial,
as the case may be, or find him guilty and
pass sentence on him according to law;

(b)
in
an
appeal
from
a
conviction-

(i) reverse the finding and
sentence and acquit or discharge the
accused, or order him to be re-tried by a
Court
of
competent
jurisdiction
subordinate to such Appellate Court or
committed for trial, or

(ii)
alter
the
finding,
maintaining the sentence, or

(iii) with or without altering the
finding, alter the nature or the extent, or
the nature and extent, of the sentence, but
not so as to enhance the same;

(c)
in
an
appeal
for
enhancement of sentence-

(i) reverse the finding and
sentence and acquit or discharge the
accused or order him to be re-tried by a
Court competent to try the offence, or

(ii) alter the finding maintaining
the sentence, or

(iii) with or without altering the
finding, alter the nature or the extent, or
the nature and extent, of the sentence, so
as to enhance or reduce the same;

(d) in an appeal from any other
order, alter or reverse such order;

(e) make any amendment or any
consequential or incidental order that may
be just or proper;

Provided that the sentence shall
not be enhanced unless the accused has
had an opportunity of showing cause
against such enhancement:

Provided
further
that
the
Appellate Court shall not inflict greater
punishment for the offence which in its
opinion the accused has committed, than
might have been inflicted for that offence
2 All. Ram Ashrey Vs State of U.P.
265
by the Court passing the order or sentence
under appeal.

5. In Jeetu and Others Vs State of
Chattisgarh
reported
in
MANU/SC/1056/2012 it is held by
Hon'ble Supreme Court in para 15, 20 and
21 as under :-

"15.The hub of the matter, as we
perceive,
really
pertains
to
the
justifiability and legal propriety of the
manner in which the High Court has dealt
with the appeal. It is clear as day that it
has recorded the proponement of the
learned Counsel for the Appellants
relating to non-assail of the conviction,
extenuating factors for reduction of
sentence and proceeded to address itself
with regard to the quantum of sentence. It
has not recorded its opinion as regards
the correctness of the conviction.

20.At this stage, we may refer
with profit to a two-Judge Bench decision
inDilip S. Dahanukar v. Kotak Mahindra
Co. Ltd. and Anr. MANU/SC/1803/2007 :
(2007) 6 SCC 528 wherein this Court,
after referring to the pronouncements in
Babu
Rajirao
Shinde
v.
State
of
Maharashtra
MANU/SC/0072/1971
:
(1971) 3 SCC 337 and Siddanna Apparao
Patil
v.
State
of
MaharashtraMANU/SC/0190/1970
:
(1970) 1 SCC 547, opined thus:

An appeal is indisputably a
statutory right and an offender who has
been convicted is entitled to avail the
right of appeal which is provided for
Under Section 374 of the Code. Right of
appeal from a judgment of conviction
affecting the liberty of a person keeping in
view the expansive definition of Article 21
is also a fundamental right. Right of
appeal, thus, can neither be interfered
with or impaired, nor can it be subjected
to any condition.

xxx xxx xxx xxx

The right to appeal from a
judgment of conviction vis-à-vis the
provisions of Section 357 of the Code of
Criminal Procedure and other provisions
thereof, as mentioned hereinbefore, must
be considered having regard to the
fundamental
right
of
an
accused
enshrined under Article 21 of the
Constitution
of
India
as
also
the
international covenants operating in the
field.

21. Tested on the touchstone of
the aforesaid legal principles, it is
luminescent that the High Court has not
made any effort to satisfy its conscience
and accepted the concession given by the
counsel in a routine manner. At this
juncture, we are obliged to state that
when a convicted person prefers an
appeal, he has the legitimate expectation
to be dealt with by the Courts in
accordance with law. He has intrinsic
faith in the criminal justice dispensation
system and it is the sacred duty of the
adjudicatory system to remain alive to the
said faith. That apart, he has embedded
trust in his counsel that he shall put forth
his case to the best of his ability assailing
the conviction and to do full justice to the
case. That apart, a counsel is expected to
assist the Courts in reaching a correct
conclusion. Therefore, it is the obligation
of the Court to decide the appeal on
merits and not accept the concession and
proceed to deal with the sentence, for the
said mode and method defeats the
fundamental purpose
of
the
justice
delivery system. We are compelled to note
266 INDIAN LAW REPORTS ALLAHABAD SERIES
here that we have come across many
cases where the High Courts, after
recording the non-challenge to the
conviction, have proceeded to dwell upon
the proportionality of the quantum of
sentence. We may clearly state that the
same being impermissible in law should
not be taken resort to. It should be borne
in mind that a convict who has been
imposed substantive sentence is deprived
of his liberty, the stem of life that should
not ordinarily be stenosed, and hence, it
is the duty of the Court to see that the
cause of justice is subserved with serenity
in accordance with the established
principles of law."

6. The Hon'ble Supreme Court in
Padam Singh Vs. State of U.P., (2000) 1
SCC 621 in para-2 of its judgment has
held as under:

".......It is the duty of an
appellate court to look into the evidence
adduced in the case and arrive at an
independent conclusion as to whether the
said evidence can be relied upon or not
and even if it can be relied upon, then
whether the prosecution can be said to
have been proved beyond reasonable
doubt
on
the
said
evidence.
The
credibility of a witness has to be adjudged
by the appellate court in drawing
inference from proved and admitted facts.
It must be remembered that the appellate
court, like the trial court, has to be
satisfied affirmatively that the prosecution
case is substantially true and the guilt of
the accused has been proved beyond all
reasonable doubt as the presumption of
innocence with which the accused starts,
continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an
acquittal nor weakened by a conviction in
the trial court. The judicial approach in
dealing with the case where an accused is
charged of murder under Section 302 has
to be cautious, circumspect and careful
and the High Court, therefore, has to
consider the matter carefully and examine
all relevant and material circumstances,
before upholding the conviction."

7. Hon'ble Apex Court in the case of
Bani Singh and others Vs. State of U.P.,
(1996) 4 SCC 720 held that "the plain
language of Sections 385-386 does not
contemplate dismissal of the appeal for
non-prosecution
simpliciter.
On
the
contrary, the Code envisages disposal of
the appeal on merits after perusal and
scrutiny of the record. The law clearly
expects the appellate court to dispose of
the appeal on merits, not merely by
perusing the reasoning of the trial court
in the judgment, but by cross- checking
the reasoning with the evidence on record
with a view to satisfying itself that the
reasoning and findings recorded by the
trial court are consistent with the material
on record. The law, therefore, does not
envisage the dismissal of the appeal for
default or non-prosecution but only
contemplates disposal on merits after
perusal of the record. Therefore, with
respect, we find it difficult to agree with
the suggestion in Ram Naresh Yadav case
[AIR 1987 SC 1500 : 1987 Cri LJ 1856]
that if the appellant or his pleader is not
present, the proper course would be to
dismiss an appeal for non-prosecution."

8. Hon'ble Apex Court in the case of
Rishi Nandan Pandit and others Vs.
State of Bihar, (1999) 8 SCC 644 has
held that " 9. As a matter of legal position
the court is not precluded from perusing
the records and come to its own
conclusion
unaided
by
any
legal
2 All. Ram Ashrey Vs State of U.P.
267
practitioner
to
project
the
points
favourable to the accused, when the
counsel engaged by them does not turn up
to argue. But the three-Judge Bench of
this Court indicated in Bani Singh v. State
of U.P. [(1996) 4 SCC 720 : 1996 SCC
(Cri) 848] that it is a matter of prudence
that the court may, in an appropriate
case, appoint a counsel at the State's
expense to argue for the cause of the
accused. Of course it is for the court to
determine, on a consideration of the
conspectus of the case, whether it does or
does not require such legal assistance.
There can be appeals which could be
disposed of unassisted by counsel to put
forth the favourable features for the
accused. But if the sentence imposed by
the judgment impugned in the appeal is of
a substantial range it is advisable to seek
the assistance of a legal talent."

9. A reading of Sections 384, 385
and 386 of the Code as well as the above
legal position clearly demonstrate that a
criminal appeal cannot be dismissed for
default or as not pressed , if the same has
been admitted for consideration. The
Court has to decide the appeal on merits
and pass final orders. The consideration
of the appeal on merits at the stage of
final hearing and to arrive at a decision on
merits so as to pass final orders will not
be possible unless the reasoning and
findings recorded in the judgment under
appeal are tested in the light of the record
of the case. After the records are before
the Court and the appeal is set down for
hearing, it is essential that the appellate
court should peruse such record, hear the
appellant or his pleader, if he appears, and
hear the public prosecutor, if he appears
and
after
complying
with
these
requirements, the appellate court has full
power to pass any of the orders mentioned
in the section, but the disposal must be
after the appellate court has considered
the appeal on merits. It is clear that the
criminal
appeal,
if
not
dismissed
summarily and has been admitted for
hearing, must be considered and disposed
of on merits irrespective of the fact
whether the appellant or his counsel or the
public prosecutor is present or not or even
if the appeal has been "not pressed".

10. Keeping this in view, we are
obliged to peruse the record of case and to
scrutinize whether the reasoning of the
trial
court
are
based
on
proper
appreciation of evidence available on
record for the purpose of satisfying
ourself that the reasonings and findings
recorded by the trial court are consistent
with the material on record. After this
exercise we have to arrive at an
independent conclusion as to whether the
said evidence can be relied upon and
whether the cumulative effect of such
evidence results in proving the charges
framed against the accused person(s) as
beyond reasonable doubt. Therefore we
proceed to dispose of this appeal on
merits, irrespective of the fact that the
same has been not pressed by Ld. Counsel
for the appellant, in view of the grounds
taken in memorandum of appeal.

11. The facts necessary for the
disposal of this appeal unfolds from the
record that, a written report was presented
by informant namely Mohd. Asgar
Ansari, the son of Mohd. Suleman to
S.H.O. Police Station Baghrai, Pratapgarh
on 07.12.2001 at about 11:30 am alleging
that he along with his father Suleman,
aged about 70 years, were irrigating their
agricultural field, wherein the crop of
''wheat' was standing. It is further stated
that at about 11:00 am., Ram Asrey,
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Meghai and Khairati all sons of Bachoolal
Pasi and Pappu and Subhane son of Khairati
Pasi came to his house armed with ''lathi,
danda' and ''country-made pistol'. His
brother
Mohd.
Azam
and
mother
Khalikulnisa did not open the gate, on
which the accused persons started abusing
them. They saw him and his father in the
field and rushed towards them and assaulted
them with the intention to murder. He and
his father Suleman attempted to run away,
but after running for a short distance, the
accused persons overpowered his father and
assaulted him with ''lathi, danda'. Accusedappellant, Ram Asrey fired at the head of
his father with a country-made pistol. He
succeeded in running away and also
sustained injuries by the assault of the
accused persons and some-how managed to
escape. His father could not run due to his
old age and his dead body is lying in the
field of Bhagan Pasi. The incident was
witnessed by his brother Mohd. Azam and
his mother Smt. Khalikulnisa and many
other persons of the village.

12. On the basis of this written
information
(Exhibit-ka-1),
an
FIR
(Exhibit-ka-2) was registered at Police
Station Kunda, District Pratapgarh at
11:30 am against Ram Asrey, Meghai,
Khairati, Pappu and Subhane, under
Sections 147, 148, 149, 302, 307, 323,
504, 506 I.P.C. at Case Crime No. 127 of
2001. The Investigation of the case was
entrusted to S.I., Balram Mishra. An entry
of this FIR was made in the G.D. No.-14
dated 07.12.2001 at 11:30 am, which is
available on record as Exhibit-ka-3.

13. The Investigating Officer, P.W.-
4/S.I. Balram Mishra arrived at the spot
and prepared the Inquest Report of
deceased Suleman (Exhibit-ka-4) and
necessary papers for the purpose of the
postmortem i.e. Letter to C.M.O, Seal
sample, Report R.I., Challan Lash and
Photo Lash (Exhibit-ka-5 to ka-9).

14. The postmortem on the dead
body of deceased Suleman was conducted
on 08.12.2001 at about 1:30 pm by
Doctor Ravi Srivastava, the then Medical
Officer, District Hospital, Pratapgarh and
he also prepared the postmortem-report
(Exhibit-ka-13). He found the body of the
deceased as thin-build, eyes and mouth
were closed, rigor mortis was present in
both upper and lower limbs.

15.

He
also
found
following
antemortem injuries on the body of deceased:-

Injury No.1/A fire arm wound
of entry of Size 1.5 cm x 1.5 cm over the
forehead
direct
downwards
literally.
Margins inverted over the forehead just
above the middle of left eyebrow,
tattooing and blackening present. pellets
recovered from the wound.

Injury No.2/A fire arm wound
of exit of size 2.5 cm x 2.5 cm over left
side of face just adjacent to tragus of left
tear, margins inverted.

Injury
No.3/An
abraided
contusion of size 4.0 cm. 0.5 cm. over the
right side of forehead 2.0 cm. above the
middle of right eyebrow.

Injury
No.4/An
abraided
contusion of size 3.0 cm x 1.0 cm over the
left arm, 8.0 cm. above the left elbow
joint. Humerous bone (left fractured).

Injury
No.5/An
abraided
contusion of size 4 cm x 1.0 cm. over the
back of left forearm just below the left
elbow joint.
2 All. Ram Ashrey Vs State of U.P.
269

Injury
No.6/An
abraided
contusion of size 4.0 cm x 1.0 cm. over
the right forearm just above the right wrist
joint. Both radius and ulna bone fractured.

Injury No.7/Abrasion of size 6
cm x 1.0 cm. over the posterior aspect of
right shoulder 6 cm. below the tip of right
shoulder.

The
stomach
contains
two
ounses of digested unidentified food
particles, while small intestine was
containing faecal matter and gases, the
time of death was determined about one
day before and the cause of death was
stated as death due to ''Coma', as a result
of fire arm injury.

The medical examination of the
injuries of injured Mohd. Asgar Ansari
was done by Doctor C.P. Sharma on
07.12.2001 at about 3:40 pm at PHC
(Primary
Health
Center),
Baghrai,
Pratapgarh and he found following
injuries on the person of the injured:-

Injury No.1/Abrasion 0.5 cm x
0.5 cm. on right forearm 14 cm. above
from right chest.

Injury No.2/Contusion 6.0 cm. x
2.0 cm. on right shoulder.

Injury No.3/Contusion 4.0 cm.
x 2.0 cm. on right knee.

Injury No.4/Complaint of pain
on left big toe of the leg.

16. All injuries were stated to be
simple, while Injury No.1 was caused by
friction and rest of the injuries were stated
to have been caused by blunt object.
Duration of all injuries were noted as
fresh.

17. The Investigating Officer also
recorded the statement of the informant as
well as of Mohd. Asgar Ansari and
prepared the Site Plan (Exhibit-ka-10) on
the pointing of him. He also collected the
simple as well as blood stained soil from
the spot and sealed them in a container
separately
and
prepared
an
''Fard'
(Exhibit-ka-11). He also recorded the
statement of eye witness Mohd. Azam
and
the
statement
of
another
eye
witnesses
Smt.
Khalikulnisa
on
06.01.2002 and submitted the Chargesheet (Exhibit-ka-12) against the accused
persons, under Sections 147, 148, 149,
307, 302, 323, 504, 506 I.P.C.

18. The case being triable by the
Court of Sessions was committed to the
Sessions Court and charges against the
appellant under Sections 148, 302, 307,
323 read with Section 149, 504 and 506
of I.P.C. were framed against the
appellant. The appellant denied the
charges and claimed trial.

19. During trial, the prosecution
placed reliance on following documentary
evidence:-

1. Tehrir FIR, (Exhibit-ka-1).

2. Chick FIR, (Exhibit-ka-2).

3. G.D. Quaymi, (Exhibit-ka-3).

4. Inquest Report, (Exhibit-ka-4).

5. Letter to C.M.O., (Exhibit-ka-5).

6. Sample soil, (Exhibit-ka-6).

7. Letter to R.I., (Exhibit-ka-7).

8. Challan R.I., (Exhibit-ka-8).
270 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Photo lash, (Exhibit-ka-9).

10. Site Plan, (Exhibit-ka-10).

11. Fard blood stained and sample
soil, (Exhibit-ka-11).

12. Charge-sheet, (Exhibit-ka-12).

13. Postmortem report, (Exhibit-ka13).

14. Injury Report of informant,
Asgar Ali, (Exhibit-ka-14).

20. In addition to the above
documentary evidence, the prosecution
also testified following witnesses in order
to prove its case before the Court below:-

P.W.-1/Mohd.
Azam
(Eye
witness)

P.W.-2/Mohd.
Asgar
Ansari
(Informant/injured eye witness)

P.W.-3/Head
Constable,
(Durgvijay Singh, who recorded the First
Information Report.)

P.W.-4/S.I.
Balram
Mishra
(Investigating Officer)

P.W.-5/Doctor Ravi Srivastava,
(Doctor, who did the postmortem.)

P.W.-6/Doctor
C.P.
Sharma,
(Doctor, who examined the injured Mohd.
Asgar Ansari.)

21. After the completion of the
evidence of the prosecution, the statement
of the accused persons including the
appellant was recorded. The appellant,
Ram Ashrey in his statement, recorded
under Section 313 of the Cr.P.C., denied
the prosecution evidence and stated that
deceased Suleman and his sons had
murdered Bachoolal. These peoples are
''Gunda elements' and also informer of the
police. The deceased Suleman had been
killed by some unknown persons at
unknown place, but to pressurize the
appellant for compromise, this false case
has been instituted against him.

22. Learned Trial Court after
appreciating and analyzing the evidence
of the prosecution came to the conclusion
that the prosecution has proved its case
beyond reasonable doubt and sentenced
the appellant, Ram Ashrey under Sections
302, 323/149, 506 and 148 I.P.C. and
acquitted the appellant of the charges
under Section 307 and 504 of I.P.C.

23. Aggrieved by the judgment and
order of conviction and sentence the
appellant Ram Ashrey had filed this
appeal challenging the judgment and
order of the Trial Court on various
grounds mentioned in the Memo of
Appeal. A perusal of the memo of
appeal would reveal that appellant, Ram
Ashrey
challenged
the
impugned
judgment and order on the grounds that
the same has been passed against weight
of evidence available on record and the
Court has admitted the evidence, which
was otherwise not admissible. There
was no evidence against the appellant
on record and the judgment and order of
the
Trial
Court
was
based
on
assumption, presumption, conjectures
and surmises as well as the version of
the
prosecution
has
not
been
corroborated by the medical evidence
and the whole case of the prosecution is
highly improbable and also that the Trial
Court has ignored material contradictions
2 All. Ram Ashrey Vs State of U.P.
271
in the testimony of the prosecution
witnesses.

24. Since learned counsel for the
appellant has not pressed the appeal and
learned Addl. G.A. has supported the
judgment and order of the Trial Court on
the ground that there is no illegality in the
finding and reasoning recorded by the
Court, keeping in view the law mentioned
herein-before, we have carefully perused
the record of Sessions Trial No. 185/2000
"State Vs. Meghai and others", arising out
of Case Crime No. 127/2001, Police
Station Baghrai, District Pratapgarh in the
background of the grounds of appeal
taken by the appellant. This Court is
conscious of the fact that being the Ist
Appellate Court, it is the duty of this
Court to go through the evidence on
record and assess and analyze the
evidence of prosecution to gauge as to
whether the cumulative affect of such
evidence
results
in
proof
beyond
reasonable doubt and as to whether the
Trial Court has erred in either marshalling
of facts or in appreciation of evidence or
in application of law.

25. Section 134 of Evidence Act do
not require any particular number of
witnesses to prove any fact. Plurality of
witnesses in a criminal trial is not the
legislative intent, it is not the quantity but
quality which matters. Therefore, if the
testimony of a witness is found reliable on
the touch stone of credibility, accused can
be convicted on the basis of testimony of
even single witness. This principle was
highlighted in Vadivelu Thevar V/s state
of Madras; AIR 1957 SC 614, wherein it
is held by Hon,ble Apex Court that "The
contention that in a murder case, the
Court should insist upon plurality of
witnesses, is much broadly stated."

"The Indian Legislature has not
insisted on laying down any such
exceptions to the general Rule recognized
in Section 134 quoted above. The Section
has enshrines the well recognized maxim
that "Evidence has to be weighed and not
counted." Our Legislature has given
statutory recognition to the fact that
administration
of
justice
may
be
hampered if a particular number of
witnesses were to be insisted upon.

"It is not seldom that a crime
has 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 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 circumstance 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 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."

"Generally
speaking
oral
testimony in this context may be classified
into three categories, namely (1) wholly
reliable (2) wholly unreliable (3) neither
272 INDIAN LAW REPORTS ALLAHABAD SERIES
wholly reliable nor wholly unreliable. In
the first category of proof, the Court
should have no difficulty in coming to its
conclusion either way- it may convict or
may acquit on the testimony of a single
witness, if it is found to be above
reproach or suspicion of interestedness,
incompetence or subornation. In the
second category, the Court equally has no
difficulty in coming to its conclusion. It is
in the third category of cases, that the
Court has to be circumspect and has to
look
for
corroboration
in
material
particulars by reliable testimony, direct
or circumstantial. 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."

26. Vadivelu Thevar case (supra)
was referred to with approval in Jagdish
Prasad v. State of M.P. (AIR 1994 SC
1251). It was 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 Indian
Evidence Act, 1872 (in short 'the
Evidence Act'). But, if there are doubts
and suspicion about the testimony of such
a witness the courts will insist on
corroboration. It is for the court to act
upon
the
testimony
of
witnesses.Therefore, it is not the number,
the quantity, but the quality which 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
a ring of truth around it, is cogent,
credible and trustworthy, or otherwise.

27. In Lallu Manjhi vs. State of
Jharkhand, AIR 2003 SC 854 Hon,ble
Supreme Court held in Para 10, that "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, direct or circumstantial, before
acting upon testimony of a single
witness."

28. In AIR 2003 SUPREME
COURT 3617, Sucha singh v/s State of
Punjab
Honble
Apex
Court
after
considering Masalti and others vs. State
of U.P. MANU/SC/0074/1964, State of
Punjab v. Jagir Singh (AIR 1973 SC
2407) and Lehna v. State of Haryana
(2002 (3) SCC 76), opined as under:-
"Stress
was
laid
by
the
accused-
2 All. Ram Ashrey Vs State of U.P.
273
appellants on the non-acceptance of
evidence tendered by some witnesses to
contend about desirability to throw out
entire prosecution case. In essence prayer
is to apply the principle of "falsus in uno
falsus in omnibus" (false in one thing,
false in everything). This plea is clearly
untenable. Even if major portion of
evidence is found to be deficient, in case
residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of
number of other co-accused persons, his
conviction can be maintained. It is the
duty of Court to separate grain from
chaff. Where chaff can be separated from
grain, it would be open to the Court to
convict an accused notwithstanding the
fact that evidence has been found to be
deficient to prove guilt of other accused
persons. Falsity of particular material
witness or material particular would not
ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus"
has no application in India and the
witnesses cannot be branded as liar. The
maxim "falsus in uno falsus in omnibus"
has not received general acceptance nor
has this maxim come to occupy the status
of rule of law. It is merely a rule of
caution. All that it amounts to, is that in
such cases testimony may be disregarded,
and not that it must be disregarded. The
doctrine merely involves the question of
weight of evidence which a Court may
apply in a given set of circumstances, but
it is not what may be called 'a mandatory
rule of evidence.' (See Nisar Ali v. State of
Uttar Pradesh (AIR 1957 SC 366). Merely
because some of the accused persons have
been acquitted, though evidence against
all of them, so far as direct testimony
went, was the same does not lead as a
necessary corollary that those who have
been convicted must also be acquitted. It
is always open to a Court to differentiate
accused who had been acquitted from
those
who
were
convicted.
(See
Gurcharan Singh and another v. (AIR
1956 SC 460). The doctrine is a
dangerous one specially in India for if a
whole body of the testimony were to be
rejected, because18witness was evidently
speaking an untruth in some aspect, it is
to be feared that administration of
criminal justicewould come to a dead
stop. Witnesses just cannot help in giving
embroidery to a story, however, true in
the main. Therefore, it has to be
appraised in each case as to what extent
the evidence is worthy of acceptance, and
merely because in some respects the
Court
considers
the
same
to
be
insufficient for placing reliance on the
testimony of a witness, it does not
necessarily follow as a matter of law that
it must be disregarded in all respects as
well. The evidence has to be shifted with
care. The aforesaid dictum is not a sound
rule for the reason that one hardly comes
across a witness whose evidence does not
contain a grain of untruth or at any rate
exaggeration,
embroideries
or
embellishment. (See Sohrab s/o Beli
Nayata and another v. State of Madhya
Pradesh, 1972 3 SCC 751) and Ugar Ahir
and others v. State of Bihar (AIR 1965 SC
277). An attempt has to be made to, as
noted above, in terms of felicitous
metaphor, separate grain from the chaff,
truth from falsehood.