Omar Rashid 
New Delhi: Abhay Singh, a Samajwadi Party (SP) MLA who turned rebel earlier this year and started supporting the ruling Bharatiya Janata Party (BJP) in Uttar Pradesh, faces an uncertain future. On Friday, December 20, a division bench of the Allahabad high court stood divided in its opinion as it passed a judgement on a criminal appeal filed against Singh’s acquittal in an attempt to murder case from 2010. While Justice Attau Rahman Masoodi convicted Singh and four others, sentencing them to three years in prison under the Arms Act in addition to attempted murder, Justice Ajai Kumar Srivastava-I acquitted all the accused persons.
Had the conviction stood, Singh would have risked being disqualified as an MLA as laws state that legislators who are convicted of crimes with a punishment of a minimum of two years lose their membership. As their judgements drastically differed from each other, Masoodi and Srivastava sent the matter to the chief justice of the high court for further action.
“In view of difference of opinion between the members of the Bench, let the record of the Criminal Appeal be placed before Hon’ble the Chief Justice under Section 433 of Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding Section 392 Code of Criminal Procedure) for nomination of Bench,” Masoodi and Srivastava said in a joint note at the end of their separate judgements.
Singh became the MLA from Goshaiganj in Ayodhya in 2012 and 2022 as a Samajwadi Party member. Earlier this year, however, he was among the SP MLAs who rebelled against the party ahead of the Lok Sabha elections and voted in favour of the BJP in the Rajya Sabha elections. Though he continues to be an SP member on paper, he has shifted his political affiliation to the ruling BJP and its ideology.
The case in question dates back to May 2010. A First Information Report (FIR) was lodged against Singh and six others – Rama Kant Yadav, Ravi Kant Yadav, Sandeep Singh, Shambhunath Singh, Girish Pandey and Vijay Kumar Gupta – on the charges of attempted murder, carrying prohibited arms and criminal intimidation at the Maharajganj police station in Ayodhya, then in Faizabad district.
The trial for the case was transferred from Faizabad to Ambedkar Nagar district by the Allahabad high court last year after Shambhunath filed a transfer application. The high court also directed the Ambedkar Nagar sessions court to conclude the trial within a maximum period of six months.
On May 10, 2023, 13 years after the case was lodged, the special judge of the MP/MLA court in Ambedkar Nagar acquitted the seven accused from all the charges levelled against them. The complainant Vikas Singh then filed a criminal review in the high court against the acquittals.
In his FIR, Vikas had alleged that on May 15, 2010, when he was returning from Faizabad to his village in Devgarh, Maharajganj (in the same district), in a Special Utility Vehicle (SUV) along with his friend Dharmendra Singh, who was driving, and his cousins Vansh Bahadur Singh and Ajit Pratap Singh, a black SUV overtook his vehicle at the turning of Mai Ji’s Mandir ahead of Sarai Rasi. The vehicle stopped some distance ahead of his car, said Vikas, who claimed to see Abhay Singh and the other accused in the headlights of the vehicle. Vikas alleged that Abhay Singh and the others got down from the car and stood on the side of the road. Then, all of a sudden, Abhay Singh, Rama Kant Yadav and Ravi Kant Yadav fired shots at him with the intent to kill, alleged Vikas. The shots hit his car and all of the accused persons were exhorting each other to kill him, he added. The driver of his car sped up the vehicle and Vikas Singh and the others allegedly fled the scene.
Delivering his judgement on Vikas Singh’s appeal against the lower court acquitting Abhay Singh and others, Masoodi found the acquittal to be “erroneous, perverse” and “not based on correct appreciation of evidence available on record.” He set aside the lower court’s judgement and convicted the accused persons under various charges. However, “considering the overall circumstances including remoteness of the incident and delay in conclusion of trial,” the judge was of the view that justice would be delivered by sentencing them to six months rigorous imprisonment under Section 147 of the Indian Penal Code (IPC) and three years rigorous imprisonment under Section 307 of the IPC. Abhay Singh, Rama Kant Yadav and Ravi Kant Yadav, who were accused of firing at Vikas Singh, were further sentenced to three years of rigorous imprisonment under section 27 of the Arms Act. Masoodi, however, acquitted two accused persons, Girish Pandey and Vijay Gupta, due to lack of evidence.
Masoodi said, “Time and again, Hon’ble Supreme Court ruled that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicarious criminal liability.”
Justice Srivastava, however, said that he could not agree with Justice Masoodi’s conclusions and upheld the acquittal of all seven accused persons.
“With utmost reverence, I find myself unable to concur with the same. The dissent arises because of legal principles which have come to be settled by a catena of judgments of Hon’ble the Supreme Court on the subject of appreciation of evidence in an appeal filed to assail acquittal,” said Srivastava in the 61 pages of the judgement authored by him.
Srivastava observed that a “a threadbare analysis of the testimony” of the sole prosecution witness, Vikas Singh, showed that it was “difficult to say that” the testimony was of “sterling quality.” “It is also difficult to place him in the category of a wholly reliable witness, whose testimony is of such quality which inspires confidence of the Court to base conviction of the accused respondents No.2 to 8 on its sole basis. At best, he could be placed in the category of a witness, who is neither wholly reliable nor wholly unreliable,” added Srivastava.
He found “various contradictions” in Vikas Singh’s testimony and referred to an apex court judgement in which it held that conviction cannot be sustained on the basis of sole testimony of the victim, which suffers from substantial infirmities and inconsistencies. The judge noted that the trial court judgement acquitting Abhay Singh and others did not “suffer from any infirmity or illegality and the same is not perverse.”
Srivastava added, “It is not only a possible view of the matter, which could reasonably be formed on the basis of the evidence available on record before the learned trial court, but the same appears to be the only conclusion which could be formed on the basis of evidence available on record.”