Allahabad High Court
Rameshwar vs State Of U.P. on 4 July, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 45 Case :- CRIMINAL APPEAL No. - 1665 of 1996 Appellant :- Rameshwar Respondent :- State of U.P. Counsel for Appellant :- O.Singh,Lal Mani Tripathi,Pankaj Kumar Tyagi Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
1. We have heard Sri Pankaj Kumar Tyagi for the appellant Rameshwar; and Sri Amit Sinha, learned AGA, for the State.
2. This appeal is against the judgment and order dated 01.08.1996 passed by the First Additional Sessions Judge, Muzaffarnagar in S.T. No.266 of 1994, arising out of case crime no.33 of 1993, P.S. Ratanpuri, district Muzaffarnagar, whereby the appellant Rameshwar has been convicted and sentenced as follows: imprisonment for life under Section 302/34 IPC; and 10 years R.I. under Section 449/34 IPC. It be noticed that two persons were put to trial, namely, Rameshwar (the appellant) and Vinod. By the judgement and order impugned while convicting and sentencing the appellant as above, the co-accused Vinod has been acquitted by extending the benefit of doubt to him.
INTRODUCTORY FACTS
3. The prosecution case in a nutshell as per the written report (Ex. Ka-1) is that on 12.4.1993 at about 8 pm in the night when the deceased Salek Chand was in his house, watching TV in his room, two gunshots were heard by neighbours, namely, Jitendra (PW-2), Deshraj (not examined) and Dharmo (not examined). When they arrived at the spot, they noticed Rameshwar (the appellant) and another person, having country made pistols in their hand, scaling the eastern wall of the house of the deceased and escaping towards south. Inside that room, Salek Chand (the deceased) was noticed dead with injuries.
4. The written report (Ex. Ka-1) of the incident was given by the deceased's brother (PW-1) at P.S. Ratanpuri. Chik FIR (Ex. Ka-3) and GD entry No.25 (Ex. Ka-4) of the written report was prepared by PW-4 at 21.25 hrs on 12.04.1993 giving rise to case crime no.33 of 1993 at P.S. Ratanpuri, District Muzaffarnagar. The inquest was conducted at the spot and was completed by 24.00 hrs (i.e. midnight of 12/13.04.1993) of which inquest report (Ex. Ka-5) was prepared, which was witnessed by five persons. But neither the informant nor any of the persons who witnessed the accused escaping were witnesses to the inquest report. Autopsy of the cadaver was carried out by Dr. S. Tandon (PW-3) on 13.04.1993 at about 3 pm. As per the autopsy report (Ex. Ka-2), the external examination of the body revealed that rigor mortis was present all over the body. The abdomen was distended. Ante-mortem injuries were as below:-
"1. Gunshot wound of entry with lacerated margin 6.5 cm x 2.5 cm x vertabrae deep on left side of the neck in front. The wound extends from mid line to 3 cm below labula of the ear left. The direction of wound is from right to left and from front to back with evidence of fracture of the third cervical vertabrae and evidence of laceration and rupture of neck vessels.
2. Gunshot wound of exit 4.5 cm x 2 cm x vertebrae deep on the back, left side of neck, adjacent to the mid line. The wound was communicating through and through to the injury no.1.
Note: One large metallic shot removed from injury no.1, sealed and handed over to the constable concerned.
3. Gunshot wound of entry 2 cm x 1.5 cm x abdomen cavity deep on right side front of abdomen. Blackening around the entry on the skin present. The direction of wound was from front to back. It was situated at 9 O'clock position, 2 cm right lateral to umblicus.
4. Gunshot wound of exit 2 cm x 2 cm x abdominal cavity deep on right side of the back, adjacent to mid line."
According to the opinion of the doctor, death was due to shock and haemorrhage as a result of ante mortem firearm injuries and the same could have been caused three-fourth of a day before.
5. During the course of investigation, the investigating officer collected: (i) blood stained mat from the cot inside the room where the deceased was shot, of which seizure memo (Ex. Ka-11) was prepared; and (ii) blood stained earth and plain earth from the spot, of which seizure memo (Ex. Ka-12) was prepared. A custody memo (Ex. Ka-13) in respect of the torch alleged to have been used to witness the accused escaping from the spot was also prepared, as per which, the custody of the torch, which was of Deshraj and in a running condition, was handed over to its owner Deshraj. After the statement of witnesses were recorded under Section 161 CrPC, the investigating officer (I.O.), namely, PW-5, submitted a charge sheet (Ex. Ka-14) against two persons, namely, Rameshwar (the appellant) and Vinod (co-accused). After taking cognizance on the charge-sheet, the case was committed to the court of session. The sessions court by order dated 11.10.1994 framed charge of the offences punishable under Sections 449/34 and 302/34 IPC against both the accused. Both the accused pleaded not guilty, denied the charge and claimed for trial.
PROSECUTION EVIDENCE
6. During the course of trial, the prosecution examined five witnesses. Their testimony, in brief, is as follows:-
7. PW-1- Bhikkan Das (the informant). He stated that the deceased Salek Chand is son of his uncle (Chacha); that the accused Rameshwar and Vinod are known to him; and that relationship between Rameshwar and Salek Chand was not cordial though, he is not aware about the relationship between Vinod and Salek Chand. In respect of the incident, he stated that at the time of the incident he was at his own house. He heard that his cousin (the deceased) was shot by someone. He received information from Dharmo that Salek Chand has been killed. He stated that the written report was in his writing and he had signed it. On this statement of PW-1, the written report was marked (Ex. Ka.-1). PW-1 stated that he had not named Rameshwar (the appellant) in the written report. At this stage, the prosecution declared the witness hostile and sought permission for his cross examination, which was granted.
During cross examination by the prosecution, PW-1 stated that he had studied upto Class-X. He admitted his signature on Ex. Ka-1. He also admitted that in his report, he had mentioned that accused appellant Rameshwar and another person with country made pistols in their hand were witnessed scaling the eastern wall of deceased's house and going towards south. He also admitted that the I.O. had interrogated him. The witness when confronted with his statement recorded under Section 161 CrPC admitted that he had stated before the I.O. that on 12.04.1993 while his cousin Salek Chand (the deceased) was in his house, watching TV, at about 8 pm, 2-3 gunshots were heard coming from the house of Salek Chand upon which neighbours Jitendra (PW-2), Deshraj and Dharmo came running to the spot to witness Rameshwar (the appellant) and another person scaling the eastern wall of the house and escaping towards south; and that, about two years before the incident, the deceased and Rameshwar had a scuffle, which was settled by intervention of the villagers. PW-1 stated that whatever he had told to the I.O. was on the basis of information received by him. He also stated that the written report was scribed by him in the village and was handed over to the police for registration of a first information report.
During cross examination at the instance of co-accused Vinod, he feigned ignorance that the deceased Salek Chand was challaned for an offence. He also feigned ignorance that Salek Chand was made an accused in a case of firing at the police. He also feigned ignorance in respect of recovery of a country made pistol from Salek Chand and registration of a case under Section 25 of the Arms Act, against him. He, however, admitted that to his knowledge there is no other person by the name of Salek Chand son of Buddhu in the village. He admitted that in the village one Raja Baniya was killed but he denied that in connection with that murder, Salek Chand was arrested by the police. He feigned ignorance that Salek Chand (the deceased) had enticed away a girl from village Kukanpur. He denied the suggestion that the said girl is yet to be recovered. He claimed that he has no knowledge that Salek Chand is a history sheeter.
During cross examination at the instance of Rameshwar (the appellant), PW-1 stated that he had not witnessed the incident and had arrived at the spot after about half an hour at 8.30 pm. He stated that he is not aware whether at the time when he arrived at the spot, there was any electric light in the house of Salek Chand. He stated that he is not aware whether Salek Chand had an electricity connection though he admitted that the night was dark. He stated that at the spot, with him, there were Dharmo and 2-3 other persons. He stated that whatever he had written in the report was on the information received from Dharmo. He stated that the report was scribed while sitting in the house of Salek Chand. He stated that he must have taken 15-20 minutes to write the report; and that he reached the police station by about 10 or 11 pm. He stated that at the time of lodging the report, the Pradhan had accompanied him to the police station along with other persons though he does not remember their names. Immediately thereafter, he stated that he went to the police station alone, whereas others were outside. He stated that soon after registration of the report, his statement was recorded by the I.O. On further probe, PW-1 stated that Dharmo had not disclosed the name of any person to him and he had also not disclosed the name of any person to the I.O.
8. PW-2 - Jitendra. PW-2 stated that he knows Rameshwar (the appellant) and Vinod as they are residents of the same village where he resides. He stated that there was enmity between Rameshwar (the appellant) and Salek Chand. 2-2½ years before the incident, there was a scuffle between them. He stated that there was also a talk in the village that Vinod's aunt Shimla had illicit relations with Salek Chand and because of that, Vinod (co-accused) was inimically disposed towards Salek Chand. He stated that Salek Chand was unmarried. With regard to the incident, PW-2 stated that at about 8 pm, while he was having dinner at his house, he heard gun shot noise coming from the house of Salek Chand. He ran towards the house of Salek Chand. He saw Rameshwar firing a gunshot at Salek Chand. At that time, Salek Chand was in his house. He stated that there was electric light in the house of Salek Chand. With Rameshwar, he saw Vinod as well. After firing the shot, Rameshwar (the appellant) and Vinod (co-accused) escaped with their country made pistols by scaling the eastern wall of deceased's house. He stated that before the accused could escape, witnesses Deshraj and Dharm Singh had also arrived at the spot. They also witnessed the incident. He stated that Deshraj had a torch with him. He stated that Salek Chand died on the spot. At that time a television and a fan were switched on in his room.
During cross examination at the instance of Rameshwar, PW-2 stated that his house is about 20 paces away from the house of Salek Chand (the deceased); that the way to Salek Chand from his house runs east-west; that on hearing gunshot he did not even take a minute to reach the spot; that he witnessed Rameshwar and Vinod scaling the wall and escaping; at that time, there was electricity light though the night was dark; that he was the first to arrive at the spot; that the informant had also arrived thereafter, but must have arrived 10-5 minutes later; that before the informant, Deshraj and Dharmo had arrived; that he had entered the room of Salek Chand where he was shot at; there he noticed that he was shot twice; that the deceased was lying on the cot; that blood had spilled on the cot as well as on deceased's clothes; that blood had not spilled anywhere else except the cot and the clothes; that Salek Chand used to reside alone; that when he entered the room of Salek Chand, he noticed that empty utensils were there suggesting that he had had his dinner; and the TV was switched on. He could not recall as to which programme was running on the TV. He stated that when several people arrived at the spot, someone had switched off the TV. He also stated that he could not notice any metered electricity connection but there appeared use of electricity with the aid of a cable. On further questioning, he stated that the accused had scaled the eastern wall, the height of which would have been 2 ½ to 3 feet high; that at the time of scaling the wall, accused persons' face was not towards him (PW-2) rather, their waist could be noticed. PW-2 stated that after witnessing the incident, he went back home. On the same day the I.O. had arrived at the spot by about 10-11 pm. He stated that the I.O. stayed there for about an hour. He met the I.O. that day itself. His statement was also recorded by the I.O. He stated that he had narrated the incident to the I.O. and had also disclosed to the I.O. the place and the spot from where the accused had escaped. He again reiterated that his house is at a distance of 20 paces from the spot. On further questioning, PW-2 stated that he is not aware whether the I.O. had prepared the site plan on that day. He stated that he had disclosed to the I.O. the location of his house. At this stage, the witness stated that he saw the accused firing the gunshot. He stated that he had disclosed to the I.O. about this fact. Upon this statement of the witness, he was confronted with his previous statement recorded under Section 161 CrPC which was read out to the witness and it was pointed out to the witness that in his previous statement he had not disclosed that he had seen the accused firing gunshot. On being confronted with his previous statement, the witness stated that if that was not written while recording his statement under Section 161 CrPC, he cannot tell the reason for the same. On further cross examination, PW-2 stated that in connection with the incident of scuffle between the deceased and Rameshwar (the appellant), there is no litigation pending. He denied the suggestions that he made false statement against Rameshwar on account enmity; that he had not witnessed the incident; that his house is at a distance of 200 paces from the house of Salek Chand; and that in the night of the incident there was no electric light in the house of Salek Chand.
During cross examination at the instance of co-accused Vinod. PW-2 reiterated that at the time when the gunshot was heard, he was having dinner in his house and at that time Salek Chand was in his own house. He was confronted with his previous statement wherein he had stated that he heard a gunshot noise coming from the house of Salek Chand. In response to which, he stated that his statement that Rameshwar (the appellant) fired a shot at Salek Chand is not false. He stated that his statement that while he was having dinner in his house, he heard gunshot noise coming from the house of Salek Chand; upon hearing that noise, he ran towards the house of Salek Chand where he saw Rameshwar firing a shot at Salek Chand, is correct. He stated that the fact is that he was having dinner in his own house when he heard a gunshot noise; when he arrived at the spot from where the noise came, he saw Rameshwar firing at Salek Chand, which was the second shot. He stated that only two gunshot injuries were found on the body of Salek Chand. He stated that Salek Chand was watching television in his room and his house is a one room house in front of which there is a courtyard. He stated that there is only one door in the room of his house and from that door, Rameshwar, after firing gunshot, had effected his escape. He stated that he made an effort to catch Rameshwar while he was escaping but if he had done so, he would have been shot by Rameshwar. He stated that Deshraj and Dharmo Singh had not arrived at the spot before him but they arrived immediately after he arrived at the spot. He stated that when Deshraj and Dharmo arrived by that time Rameshwar had already scaled the wall. He stated that he, Deshraj and Dharmo had witnessed Rameshwar scaling the wall. Deshraj had a torch with him.
On further questioning at the instance of co-accused Vinod, PW-2 stated that he saw Rameshwar firing at the neck of the deceased from a close range. At this stage, on further probe, PW-2 stated that Deshraj and Dharmo had arrived with him at the house of Salek Chand. PW-2 stated that when the police had arrived, they had called him over to the house of Salek Chand; that was the second time, he visited the house of Salek Chand. At that time, Dharmo, Deshraj and Bhikkan Das (the informant) were there at the spot. He stated that what he had witnessed, he told to the police. He also stated that he had informed the I.O. that there was gossip in the village that there was enmity between Vinod and Salek Chand on account of illicit relations of the aunt (Chachi) of Vinod with Salek Chand. At this stage, PW-2 admitted that he had not informed Bhikkan (the informant) that Vinod had fired a shot at Salek Chand in his presence. However, PW-2 maintained that Vinod had fired a shot at Salek Chand in his presence which hit Salek Chand on the neck, whereas Rameshwar had fired shot at Salek Chand which hit him on the abdomen. He stated that Vinod and Rameshwar both had fired shot at Salek Chand while he was there. He denied the suggestion that neither Vinod nor Rameshwar fired shot in his presence and that he had not witnessed Vinod escaping from the spot. He also denied the suggestion that he is telling lies on account of village party bandi.
9. PW-3- Dr. S. Tandon (Autopsy Surgeon). He stated that on 13.04.1993 he was posted at District Hospital, Muzaffarnagar when the body of the deceased was brought to him for autopsy in a sealed state. He proved the autopsy report and the injuries noticed by him therein. On the basis of his statement, the autopsy report was exhibited as Ex. Ka-2. He stated that injury nos.1 and 3 noticed by him were firearm injuries and were entry wounds. Those injuries were possible to have been caused at 8 pm on 12.04.1993. He also stated that death of the deceased might have occurred three-fourth of a day before the autopsy. He denied the suggestion that he prepared the autopsy report on the basis of suggestions given by the constable concerned.
10. PW-4- H.C. Bhagwat Singh. He is the constable who prepared the GD entry of the written report. He proved the GD Entry No.25 made at 21.25 hrs on 12.04.1993 in respect of the written report. The copy of the GD entry was exhibited as Ex. Ka-4. He also proved preparation of the chik FIR, which was marked Ex. Ka-3.
During his cross examination, he denied the suggestion that the first information report was written at his instance. He stated that the informant had brought the written report. He stated that he could not remember whether the informant had arrived on foot or by some other mode.
11. PW-5- Ram Singh Pal (Investigating Officer). He proved the various stages of investigation and stated that after registration of the first information report he had visited the spot and had noticed the body of Salek Chand lying on a cot inside the room of his house. He proved conducting of inquest proceeding as also preparation of papers in connection with inquest and autopsy. He stated that on 13.04.1993 he recorded the statement of Jitendra, Deshraj and Dharmo, who were eye witnesses as per the first information report, and inspected the spot in light of electric bulb as well as lantern and prepared a site plan of the spot, which was marked Ex. Ka-10. He proved collection of blood stained Dari (mat) from the cot as well as plain earth and blood stained earth from the spot. The seizure memos thereof were marked Ex. Ka-11 and Ex. Ka-12, respectively. He stated that efforts were made to arrest the accused. The accused Rameshwar was arrested on 14.04.1993 whereas the accused Vinod surrendered on 26.04.1994 in court. He also stated that the witness Deshraj had shown him the torch in the light of which he had witnessed the accused scaling the wall. He stated that the torch was found in a working condition and custody memo in respect thereof was prepared, which was marked Ex. Ka-13. He also proved submission of charge sheet, which was marked Ex. Ka-14. He produced the blood stained earth, plain earth/ the piece of mat collected by him. They were made material exhibits.
During cross examination at the instance of co-accused Vinod, PW-5 stated that he recorded the statement of informant on 12.04.1993 at 21.50 hrs, soon after registration of the case. He recorded the statement of Deshraj at 0.45 hrs on 13.04.1993. He also recorded the statement of witness Dharmo Singh in the night itself at 01.00 hrs. And at 0.30 hrs, on 13.04.1993, he recorded the statement of Jitendra. He stated that the FIR was registered at the instance of PW-1 at 21.25 hrs on 12.04.1993 and, whereafter, the police team left to go to the spot at about 22.00 hrs. He stated that he arrived at the spot by about 22.10 hrs on 12.04.1993 itself.
During cross examination at the instance of accused Rameshwar, PW-5 stated that at the time of preparing the site plan he had not shown the electricity wires and the direction in which they were placed but had disclosed in the site plan the presence of an electricity bulb, TV and a fan in the room where the incident occurred. He stated that when the police team arrived at the spot, the electricity bulb was switched on but the TV and fan were off. He stated that the witnesses had told him that the TV and the fan was also on at the time of occurrence. He stated that the witnesses informed him that some person may have switched off the TV and fan. He stated that he is not aware about the electricity connection in the premises where the incident occurred. PW-5 specifically stated that witness Jitendra (PW-2) had not disclosed to him that he had witnessed the accused firing shots at the deceased. He stated that PW-2 had only informed him that he had seen the accused coming out of the room; scaling the eastern wall and escaping with country made pistols in their hand. He stated that he did not prepare any seizure memo of the TV, fan, stool or the bulb that was in the room but their presence was disclosed in the site plan prepared by him. In respect of the height of the wall which was allegedly scaled by the accused to effect their escape, PW-5 stated that it must be 3 feet high though its height was not mentioned in the index of the site plan prepared by him. He stated that the distance between point ''F' and ''E' mentioned in the site plan would be around 35 paces. He stated that point ''F' shown in the site plan is the place from where witnesses witnessed the accused scaling the wall while effecting their escape with the help of torch light. On being specifically questioned with regard to the distance between the wall and point ''F', PW-5 stated that although that distance is not mentioned in the site plan but it must be around 14-15 paces. PW-5 stated that when the witnesses saw the accused scaling the wall while they were at point ''F', the witnesses could notice the accused from the side (waist) but, immediately thereafter, he clarified by stating that when the accused were coming out of the door, the witnesses could have noticed the face also. He denied the suggestion that he completed the investigation while sitting at the police station.
STATEMENT UNDER SECTION 313 CrPC
12. After the prosecution evidence was closed, the incriminating circumstances appearing in the prosecution evidence were put to the accused. As co-accused Vinod has been acquitted by the trial court, we do not propose to notice the statement of co-accused Vinod recorded under Section 313 CrPC. In so far as the appellant Rameshwar is concerned, in his statement recorded under section 313 CrPC he denied the incriminating circumstances appearing in the prosecution evidence against him and claimed that he has been falsely implicated on account of village party bandi.
TRIAL COURT FINDING
13. The trial court by placing reliance on the statement of PW-2 convicted the accused-appellant Rameshwar. Accused Vinod was extended the benefit of doubt as he was not named in the first information report and that his name surfaced only in the statement of witnesses recorded during investigation.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANT
14. Questioning the judgment and order of the trial court, the learned counsel for the appellant submitted that this is a case where the incident is of night; that the deceased was shot dead inside the room of his house; that none of the witnesses were residing with the deceased; that the site plan prepared by the I.O. did not disclose the presence of any external light; that the site plan also does not disclose that the house of PW-2 was adjoining the house of the deceased; that the first information report disclosed that the witnesses had only seen the accused escaping from the spot; that the other two witnesses whose names were mentioned in the first information report have not been examined by the prosecution; that the torch in the light of which the accused were seen escaping was of Deshraj, who has not been examined; that the statement of PW-2, the sole eye witness examined, is not wholly reliable; and that PW-2 not only makes improvement from his previous statement recorded under Section 161 CrPC but also makes improvement during the course of his deposition in court, therefore, it is a fit case where the accused-appellant be extended the benefit of doubt, particularly, when there is no corroboratory evidence in respect of participation of the accused-appellant in the crime. It has been submitted that the motive for the crime is not proved beyond doubt, inasmuch as, the motive for the crime shown in the first information report is in respect of animosity arising from a scuffle between the deceased and the accused-appellant that took place two years before the incident. Whatever animosity that might have been there, arising from that incident, stood erased with passage of time as also that the two had settled their differences on the intervention of villagers. Lastly, it was contended that since it is a case based on a single witness testimony and the informant, namely, PW-1, has also stated that he had not named the accused-appellant in the FIR, the appellant is entitled to the benefit of doubt.
SUBMISSIONS ON BEHALF OF THE STATE
15. Per contra, learned AGA submitted that the first information report of the incident was promptly lodged; that there is no suggestion to the prosecution witnesses including the informant that the incident was of some other time than what is alleged in the first information report; that there is no suggestion with regard to the ante-timing of the first information report; that, admittedly, two gunshots were fired therefore the witnesses could have arrived at the spot after hearing the first gunshot and it is highly probable that the witnesses, upon arrival, noticed the accused exiting the the room where the deceased was shot and while they were scaling the wall of the house; that, admittedly, there was a bulb lit in the room and there was also a torch hence there was sufficient light to witness the accused escaping soon after the incident; that since no animosity is suggested between the accused-appellant and the witness PW-2, the trial court was justified in convicting the accused-appellant as he was named in the first information report and also in the statement recorded during the course of investigation and further, his participation in the crime was proved by the testimony of PW-2. Learned AGA, therefore, prayed that the appeal be dismissed and the conviction and sentence recorded by the court below be affirmed.
ANALYSIS
16. Having noticed the rival submissions and having noticed the entire prosecution evidence, before we proceed to evaluate the prosecution evidence we may remind ourselves that this is a case where the prosecution relies on a sole witness testimony. The law is settled that on the testimony of a sole witness conviction can be sustained provided the witness is wholly reliable and his testimony is unimpeachable and of a stellar quality.
17. In Anil Phukan vs State Of Assam, (1993) 3 SCC 282, the Supreme Court held as follows:-
"........ Conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole eye 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"
18. In State of Rajasthan v. Bhola Singh, AIR 1994 SC 542, the aforesaid statement of law was reiterated in the following words:
"It is well settled that if the case rest only on the sole evidence of the eye-witness, such testimony should be wholly reliable."
19. In Bhimapa Chandapa Hosamani and others v. State of Karnataka, (2006) 11 SCC 323, the apex court reiterated the law in the following words:-
"This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."
20. In a recent decision in the case of Jagdish and others v. State of Haryana, (2019) 7 SCC 711, again, the Supreme Court reiterated the law by observing "conviction on basis of a solitary eyewitness is undoubtedly sustainable if there is reliable evidence cogent and convincing in nature along with surrounding circumstances."
21. Having noticed the observations of the Supreme Court on the issue as to when on a single witness testimony conviction can be sustained, we are of the view that, though, there is no bar in basing conviction on the testimony of a single eye-witness but, before doing so, the court must carefully scrutinise the evidence to be satisfied that it is free of any blemish or suspicion, is wholly truthful and appears natural and convincing, that is, in short, it is intrinsically reliable, inherently probable and wholly trustworthy.
22. In the instant case, the first information report was lodged by disclosing the name of three persons, namely, Jitendra (PW-2), Deshraj and Dharmo, as witnesses. In his deposition in court, PW-1, the informant, states that the information was lodged as per information received from Dharmo, who has not been examined. During the course of investigation, the torch of Deshraj was seized and its custody was handed over to Deshraj. But, surprisingly, Deshraj has not been examined by the prosecution. The only witness examined by the prosecution is PW-2 (Jitendra Singh). In the testimony of PW-2 what is consistent is that PW-2 was having dinner in his house at the time when he heard noise of a gunshot. After hearing the noise of first gunshot, he rushed to the spot. In his statement before the investigating officer, recorded under Section 161 CrPC, the witness had not disclosed of having witnessed the accused firing gunshots at the deceased. Rather, he disclosed about having seen the accused escaping by scaling the eastern wall of the house. However, during his deposition in Court, he makes considerable improvement by stating that he witnessed firing of gunshots at the deceased. But, PW-2 is not consistent even here. At one portion, he says that after hearing the first gunshot he arrived at the spot and after his arrival, Deshraj and Dharmo arrived. Deshraj had a torch. In this part of his statement, PW-2 stated that after hearing the first gunshot when he arrived, he saw Rameshwar firing a second gunshot at the deceased. Later, in his deposition, PW-2 stated that he witnessed both shots that were fired at the deceased. In the latter part of his statement, PW-2 stated that Vinod fired a shot which hit the deceased on his side, near the neck region; whereas, the shot fired by Rameshwar struck the abdomen of the deceased. At one place, this witness states that Deshraj and Dharmo had arrived after his arrival at the spot whereas at another stage, he states that he, Deshraj and Dharmo simultaneously arrived at the spot. Notably, PW-2 was confronted with his previous statement recorded under Section 161 CrPC where he had not disclosed that he witnessed the accused firing shot at the deceased. The investigating officer who had recorded the statement of PW-2 under Section 161 CrPC specifically stated, during his cross examination, as follows:-
^^xokg ftrsUnz us xksyh ekjus okyh ckr rFkk eqyftekuks }kjk xksyh ekjrs gqos ns[kus dh ckr ugh crkbZ FkhA ijUrq ;g crk;k Fkk fd mlus fouksn o jkes'oj dks dejs ls fudy dj iwoZ dh fnokj dwn dj Hkkxrs gq;s ns[kk Fkk muds gkFkks es dV~Vs FksA^^ The inconsistencies in the statement of PW-2, noticed above, in our view, renders the witness as not a wholly reliable one.
23. In addition to above, the autopsy report of the deceased would suggest that two shots were fired at the deceased from a close distance. The house of the deceased was a single room house and in front of that room there was a courtyard. The site plan prepared by the I.O., which is at the instance of the witnesses who witnessed the incident including Jitendra, would suggest that one set of witness came from east and the other set came from west. The spot from where those witnesses witnessed is shown by point ''F'. In the index of the site plan ''E' is the point where the witnesses heard the gunshot. In the testimony of PW-5, the distance between ''E' and ''F' is 35 paces. Point E is not located inside the house of any one but falls in the lane. From the testimony of PW-2 it is clear that he was having dinner in his house when he heard first gun shot. Whereafter, he rushed to the spot. The house of PW-2 is not shown in the site plan therefore, if point ''E' is the spot where the witness heard the shot, it would be the point where he heard the second gun shot and not the first because, as per the evidence, the first was heard while the witness was having dinner in his house. The point ''F', as per the testimony of PW-5, is 14-15 paces away from the wall scaled by the accused to escape from the spot. Notably, the height of that wall is 2½ to 3 feet, which means that it would not take much effort to scale it. From the testimony of PW-2, it appears, the place from where he witnessed the accused scaling the wall he could notice only the side profile of the accused, which is evident from his statement extracted below:-
^^tc eqyfteku nhokj dwn dj Hkkx jgs Fks rc budh esjh rjQ dej Fkh eqag ugh FkkA^^
24. To get out of this situation, the I.O. in his testimony sought to suggest that when the accused were exiting the room by using the door, their face would have been towards the witnesses thus the witnesses had the opportunity to notice the face of the accused. Assuming that this was the case, then another question that would arise is whether a man standing in darkness and looking towards light, could visualize the face of a person, which is towards darkness, when light is falling on the back of that person. Importantly, presence of light is not shown outside the room. Bulb shown is inside the room, which had one door. Notably, it is not disclosed that the room had a window. Thus, when the accused would have exited that door, light of the bulb, if any, would be falling on their back. Ordinarily, in our view, in such a situation, it would be difficult for a person to clearly see the face of a man, facing darkness, particularly, when light is falling on that man's back. Interestingly, PW-2 states that he knew both Rameshwar and the co-accused Vinod. If he had actually recognized the face of the two accused, both would have been named. But here only one is named. Surprisingly, Deshraj, the one to arrive with torch in his hand, has not been examined. In such a situation, a question would arise whether the prosecution has been successful in proving existence of torch light to recognise the accused. On this aspect, we may observe that there is inconsistency in the statement of PW-2 as to whether Deshraj arrived at the spot simultaneously with PW-2 or later. Therefore, it can not be determined with certainty whether there existed the benefit of torch light at the moment when the accused were exiting the room through its door. In our view, the evidence led by the prosecution fails to establish beyond doubt that the two accused could be recognised while exiting the door, particularly, when the night was dark and no proven source of light was present outside the room more so, when the person whose torch is said to have been used has not been examined. It, therefore, appears to us that this a case where the name of the accused, which came to mind first, on account of past enmity, was mentioned in the FIR out of strong suspicion. In these circumstances, prompt lodging of a named FIR by itself would be no guarantee for the credibility of the testimony of PW-2, particularly when, according to the testimony of PW-1 (the informant), the FIR was on the basis of information provided by Dharmoo, who has not been examined. In addition to above, PW-1 at the fag end of his deposition stated that the name of the appellant was not disclosed to him.
25. In view of the analysis above, considering that it is a case of night incident, the prosecution has examined a solitary eye witness, whose testimony is not of a stellar quality; that two gunshots were fired in quick succession, not preceded by altercation, it would have been a split second affair; that the witnesses arrived at the spot from different places after hearing gunshots while they were within the confines of their own home, thereby taking time to arrive; that initial report was of seeing the accused while they were scaling the wall to escape therefore, bearing in mind that the presence of light outside the room has not been satisfactorily proved, there was very little scope for the witnesses to recognize the accused. Further, the statement of PW-2 that he witnessed firing of gunshot by the appellant on the abdomen of the deceased is for the first time in court and is a gross improvement from his previous statement. Consequently, keeping in mind that it is a case based on a single eye witness testimony who is not wholly reliable as discussed above, we are of the considered view that the appellant is entitled to the benefit of doubt.
26. For all the reasons above, the accused-appellant Rameshwar is extended the benefit of doubt as has been extended to co-accused Vinod by the trial court. The appeal is allowed. The judgment and order of the trial court convicting and sentencing the appellant Rameshwar is set aside. The accused-appellant is acquitted of the charge for which he has been tried and convicted. It appears from the record of this appeal that though, earlier, the appellant was released on bail but, on account of absence of his counsel non bailable warrants were issued against the appellant and, in pursuance whereof, the appellant has been taken into custody. Accordingly, the appellant-Rameshwar shall be released forthwith, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court.
27. Let a copy of this order be forwarded to the court below along with the record for information and compliance.
Order Date :- 4.7.2022 AKShukla/-