Allahabad High Court
Tahir And Others vs State Of U.P. on 12 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2088
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 17.10.2019 Delivered on 12.12.2019 Court No. - 10 Case :- CRIMINAL APPEAL No. - 2 of 1984 Appellant :- Tahir And Others Respondent :- State of U.P. Counsel for Appellant :- Subodh Kr. Shukla,Jai Pal Singh,M. Waris Farooqui,Qazi Mohd.Ahmad Counsel for Respondent :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.
2. This criminal appeal has been filed by the appellants namely Tahir, Ali Beg and Shahzad against the judgment and order dated 24.12.1983 passed by learned IInd Additional District and Sessions Judge, Barabanki, in Sessions Trial No. 404 of 1982, arising out of Case Crime No. 01 of 1982, under Sections 147, 148, 149, 307 and 302 of I.P.C., Police Station Mohammadpur, District Barabanki, whereby all appellants have been convicted for the offences under section 302/34 and 324/34 of I.P.C. and sentenced for life imprisonment and rigorous imprisonment for one year with stipulation of imprisonment in case of non payment of fine.
3. Perusal of the judgment of trial Court reveals that co-convict Bachoo Kurmi was murdered during the pendency of the instant case and, therefore only appellants Shahzad, Tahir and Ali Beg were tried by the trial Court.
4. The prosecution story as emerges from the record is that a First Information Report was lodged orally by Shri Ram Sewak at Police Station Mohammadpur on 04.01.1982 at 3:10 pm. stating that he is a resident of Village Hajipur, Police Station Ram Nagar. He and his brother Bansi were charged with committing ''dacoity' in the house of one Bacchu Kurmi and they were detained in the Jail for about one and half month, in connection with this case. When they were released on bail, they were told by villagers that Bachhoo Kurmi is a criminal and they should remain alert, otherwise they will be killed. Due to this threat, they started living in the ''Sasural' of Bansi at Village Katramau, Police Station Kursi.
5. It was further stated that on getting an information that a cow, in their house, had given birth to a calf and his brother asked him to visit the house as well as to taste the milk of the cow. On Saturday, both of them went to their home from Village Katramau and reached there in the night. Their father advised them to immediately go from there otherwise they will be killed. They became apprehenseive and left their home and reached Sultanpur, where they met appellant Tahir, who was guarding his Tomato field. They told Tahir that they are hungry, on which Tahir asked them to wait there as he is going to his home to bring some food for them. After two hours, Tahir came back with ''bread and salt', which they ate. At this juncture, Bachhoo Kurmi armed with ''Ballam', Shahzad armed with ''Banka', Ali Beg armed with ''lathi' and 02 other unknown persons, who were also armed with ''lathi', came there and Bachhu commanded them to kill us. After hearing this, Tahir caught hold of him i. e. Ram Sewak, while Shahzad assaulted him with ''banka' and Ali Beg with ''bhala' and other accused pesons assaulted them with ''lathis'. When he fell down, they started beating his brother Bansi and after killing his brother, they fled away from the spot. The dead body of his brother is lying at the spot, near a pond.
6. On the basis of this oral information, an FIR was registered at Case Crime No. 01 of 1982, under Sections 147, 148, 149, 307 and 302 I.P.C. on 04.01.1982 at 15:10 hours and a Chick FIR (Exhibit-ka-1) was prepared and substance of this information was also entered in the General Diary( Exhibit-ka-4).
7. The Investigation of the case was taken over by S.O. Shri Gulab Chandra Bhatia, who immediately after taking over the investigation recorded the statement of the injured/informant at the police station itself, and thereafter, proceeded to the spot and prepared the inquest (Exhibit-ka-5) of the body of Bansi, and also prepared necessary papers (Exhibit-ka-5 to Ka-7 and Ka-11 and Ka-11-A) for the purpose of postmortem on the dead body and after sealing the dead body forwarded the same for postmortem. Informant/injured Ram Sewak after recording of his statement was sent to hospital by the Investigating Officer for management of his injuries, where he was examined by P.W.-2 Dr. K.S. Bigh, at PHC Suratganj, Police Station Mohammadpur, under police protection on 05.01.1982 at 3:00 pm. who noticed following injuries on his person and prepared the injury report (Exhibit-ka- 2) :-
Injury No.1/Incised wound 4.0 cm. x 1.0 cm. x 1.0 cm. on the back of Head clean cut margins. Pus formation.
Injury No.2/Incised wound 1.5 cm. x 0.5 cm. x 0.5 cm. on the left side back of Head. 4.0 cm. below the injury No.1. Pus formation.
Injury No.3/Incised wound 9.0 cm. x 3.5 cm. x 2.0 cm. on the left ear, front of left ear and behind the left ear. Cutting the pinna in two halves in the middle and going deep in the left ear. Pus formation (Advised x ray).
Injury No.4/Incised wound 6.0 cm. x 1.0 cm. x 0.5 cm. on the front of chin. Pus formation.
Injury No.5/Incised wounds parallel 4 in number from (1) 6.5 cm. x 1.5 cm. x 1.0 cm., (2) 2.5 cm. x 1.0 cm. x 0.5 cm., (3) 1.5 cm. x 0.5 cm. x 0.5 cm., (4) 1.5 cm. x 0.5 cm. x 0.5 cm. on the back of left shoulder. Pus formation.
Injury No.6/Incised wound 7.0 cm. x 1.0 cm. x 1.0 cm. on the back of right hand extending from base of index finger to the middle of middle finger. Pus formation.
Injury No.7/Incised wound 1.5 cm. x 0.5 cm. x 0.5 cm. on the tip of left index finger. Nail chopped off.
Duration of above injuries was found to be of about one and half to two days duration. All injuries were caused by sharp edged weapon. All injuries except Injury No.-3 were simple, which were kept under observation and X-ray was also advised.
8. Postmortem on the body of deceased Bansi was done on 06.01.1982 at 4:00 pm. by P.W.-3 Dr. M.A.R. Siddique,, which was handed over to him with relevant papers by Constable Vindhyachal Pathak and Chowkidar Ali Raza.
Deceased was found to be a young man of good built. Rigor Mortis was found present on lower extrimities partially. Abdomen was found slightly distended. Following injuries were found on the body of the deceased:-
Injury No.1/Incised wound 18 cm. x 4 cm. x Brain deep on left side head 6 cm. above left ear sagitaly.
Injury No.2/Incised wound 19 cm. x 3 cm. x Brain deep posteriorly and muscle deep anteriorly on face, passing through middle of ear transversely on temporal occipital region of skull and face posteriorly communicated to injury No. (1).
Injury No.3/Incised wound 20 cm. x 7 cm. x oral cavity deep anteriorly, muscle deep in lower jaw, and brain deep in occipital region cutting the underlying bones and communicated to injuries No.1 and 2 cut ear at lobule and underlying great vessels of Neck.
On internal examination, bones left parietal, temporal, maxilla, mandible were found cut and occipital bone was also found fractured. Membranes was also found cut and brain was found lacerated and only 40 percent of the same was present. Bones on back of the skull was also found fractured and large vessel of the neck was also found cut on left side. Two ounce of semi digested food was found in stomach. Small intestine was found full of gases, while in large intestine, gases and small amount of faecal matter was found. Liver was found pale weighing about 1400 grams. Bladder was found empty and the death was reported to be caused due to shock and hemorrhage, as a result of ante-Mortem injuries. The post mortem report (Exhibit-ka-3) was prepared by P.W.-3 Dr. M.A.R. Siddique in his writing and signature.
9. Investigating Officer, thereafter, prepared Site Plan (Exhibit-ka-8) of the scene of crime , collected the blood stained and simple soil from the spot and also prepared memo of the same as Exhibit-ka-9 & Ka-10, respectively. He also sent the clothes of the deceased for chemical examination and after recording the statement of the witnesses submitted charge-sheet (Exhibit-ka-17) against the appellants and Bachhoo .
10. The case being triable by the Court of Sessions was committed and charges against the appellants under Sections 307, 147, 148, 302 read with Section 149 of I.P.C. were framed against all appellants.
11. Prosecution in order to prove its case before the Court below relied on following documentary evidence:-
Chick FIR, Exhibit-ka-1, Injury Report of Ram Sewak, Exhibit-ka-2, Postmortem Report of Bansi, Exhibit-ka-3, Copy of G.D. FIR, Exhibit-ka-4, Inquest Report, Exhibit-ka-5, Photo Lash, Exhibit-ka-6, letter to R.I., Exhibit-ka-7, Copy FIR, Exhibit-ka-1-A, Site Plan, Exhibit-ka-8, Memo of blood stained and simple soil, Exhibit-ka-9 & Exhibit-ka-10, letter to C.M.O., Exhibit-ka-11 and charge-sheet, Exhibit-ka-12.
12. Prosecution in order to prove its case also produced following witnesses:-
P.W.-1/Ram Sewak, P.W.-2/Dr. K.S. Big, P.W.-3/Dr. M.A.R. Siddiquie, P.W.-4/Constable Kedarnath Tiwari, P.W.-5/S.O. Shri Gulab Chandra Bhatia.
13. After conclusion of the prosecution evidence, statement of the accused-appellants under section 313 of the Cr.P.C was recorded. Appellant Shahzad in his statement has denied the incident and stated that the Investigating Officer had wrongly submitted charge-sheet against him and he had been falsely implicated in this case, because he was a servant of Bachhoo and Shahzad and Ali Beg are his cousins. Appellant Ali Beg also denied the evidence of the prosecution produced against him and only admitted the occurrence of ''dacoity' in the house of Bachhoo and that he had been falsely implicated. He is the brother of co-appellant Shahzad. Appellant Tahir in his statement recorded under Section 313 of the Cr.P.C. also stated that he has been falsely implicated in this case, as he is the brother of Ali Beg and the Investigating Officer had wrongly submitted the charge-sheet against him.
14. The trial Court after appreciating the evidence on record came to the conclusion that prosecution has proved its case beyond all reasonable doubts and thereby convicted all the appellants for committing the offences under Section 302/34 and 324/34 of I.P.C. and sentenced them as mentioned in the first paragraph of this judgment.
15. Learned counsel for the appellants submit that the trial Court has failed to appreciate the evidence available on record in right perspective and has relied upon the unreliable testimony of P.W.-1/Ram Sewak.
It is further submitted that instant case is based on the testimony of a single witness and keeping in view the settled proposition of law to convict the appellants, the evidence of solitary witness should be wholly reliable, while the evidence of P.W.-1/Ram Sewak could not be believed for its inherent contradictions and weaknesses and, therefore, the trial Court has materially erred in relying on his testimony.
It is further submitted that as per the story of prosecution, informant and his brother Bansi while returning from their house met appellant Tahir at a village and they together came to his tomato field. Appellant Tahir asked them to wait there, as he went to bring some food for them. After some time Tahir brought food which they both consumed and soon thereafter, they were assaulted, wherein deceased was done to death. However, in the postmortem report of the deceased Bansi, semi-digested food of the quantity of only 02 ounces has been found, which belies the story of the prosecution.
He further submits that the FIR has been filed with considerable delay and the explanation put forth by prosecution that they first went to P.S. Ram Nagar and from there they were directed to lodge the FIR at P.S. Mohammadpur and a sub inspector of police also accompanied them, has not been found proved. Therefore, the FIR is delayed and there is a cloud of suspicion over the whole prosecution story. It is also submitted that it has also come in the evidence of P.W.-1/Ram Sewak that the dead body of the deceased Bansi was left unattended for the whole night, which is highly improbable. There are material contradictions in the testimony of P.W.-1/Ram Sewak, pertaining to the role played by each accused in the crime and though he is specifically stated to have been assaulted by 'ballam', but no injury commensurate to the weapon 'ballam' has been found either on his person or on the person of deceased Bansi.
It is overwhelmingly argued that deceased and P.W.-1/Ram Sewak were the persons of bad character and deceased was done to death while committing some offence and to hide their culpability, they have falsely implicated the appellants on the basis of enmity. Therefore, appeal is liable to be allowed and the order of the trial Court be set-aside.
It is further submitted that accused persons are related to each other and they have also admitted this fact in their statement recorded under Section 313 of the Cr.P.C.
Learned counsel for the appellants in support of his arguments relied on following case laws:-
(i) Naqli and another Vs. State of U.P., 1991 Crl. L. J. 2468.
(ii) Joseph Vs. State of Kerala, AIR 2003 SC 507.
(iii) Kuna Alias Sanjaya Behera Vs. State of Odisha, (2018) 1 SCC 296.
(iv) Anil Phukan Vs. State of Assam, AIR 1993 SC 1462.
(v) Ram Kishore Vs. State of U.P., [2017(2) JIC 477 (All).
(vi) Sevi and another vs. State of T.N. and another, AIR 1981 SC 1230
(vii) Sanjay Kumar Vs. State of U.P. in Criminal Appeal No. 244 of 2007 Allahabad High Court.
16. Learned A.G.A. on the other hand submits that it is a case, where one person namely deceased Bansi was done to death and P.W.-1/Ram Sewak was injured. P.W.-1/Ram Sewak is an injured witness, as he has received injuries in the incident and he being a rustic villager is not expected to give a video-graphic account of the incident therefore, some contradictions and omissions are bound to occur in his testimony, but on the basis of these insignificant and minor infirmities occurring in his testimony, his whole evidence could not be discarded. The evidence of an injured witness stands on a higher pedestal than the other witnesses and very strong reasons are required to discard the evidence of an injured witness.
It is further submitted that there was some doubt pertaining to the jurisdiction of police station and the injured P.W.-1/Ram Sewak was a resident of Ram Nagar police station, therefore, it was natural for him, at first, to approach the police station Ram Nagar in the local jurisdiction of which his village falls and there is nothing unnatural in approaching P.S. Ram Nagar first and, thereafter, to go to Police Station Mohammadpur. P.W.-1/Ram Sewak had sustained 07 incised wounds and was brought on a cot to the police station. The FIR was also lodged by him orally, therefore, there are chances that some important facts might have been missed in his narration to the constable clerk as at that point of time he was under duress of injuries.
17. A brief survey of the evidence of the prosecution would make the task of appreciation of evidence easier for us.
P.W.-1/Ram Sewak , who is the sole injured/eye witness of the crime. has stated that co-accused Bacchoo has died. Appellant Tahir, who is a resident of Katra and Shahzad resident of Gaura purva and Ali Beg resident of Katra were the companions of Bachhoo. Accused Bachhoo was inimical to them, as he (Ram Sewak) and his brother Bansi was charged for committing ''dacoity' in his house and when they (Ram Sewak and Bansi) were released on bail, they were alarmed by the villagers that Bachhoo would kill them and they started to live in the ''Sasural' of Bansi.
It was further stated that on the fateful day they came to their house, where they were informed by their parents to immediately leave, otherwise they would be done to death. In the morning, they were going to Village Katramau and in between they met appellant Tahir at Kohari Village, who took them to his field of Tomato situated in Village Katra and asked them to stay there as he was going to bring some food for them. He returned at about 6:00 pm. after 1½ hours. After a gap of about one hour, Bachhoo and Shahzad came there. Appellant Ali Beg was there at the spot from before. Accused Shahzad was carrying a ''banka', Bachhoo was armed with ''ballam' and Ali Beg was also carrying a ''ballam'. Tahir caught hold of Bansi, while Shahzad started assaulting him with ''banka' and assuming that he had died, they started assaulting his brother Bansi and after killing him took his body towards the pond. He took this opportunity to run from there and came to the police station and lodged the First Information Report, Exhibit-ka-1. His injuries were medically examined at PHC Sooratganj and, thereafter, he was shifted to Sadar Hospital, Barabanki, where he remained admitted for 6-7 months.
In cross-examination, this witness has stated that accused Shahzad was a servant of Bachhoo, while Ali Beg is a relative of Shahzad. Bansi and Bachhoo were having enmity pertaining to a land. He had gone to jail 03 times, at first when Bachhoo lodged a report against him, secondly, with regard to a case of Section 25 Arms Act and thirdly, pertaining to a case under Section 60 of the Excise Act. He further stated that Bachhoo aforesaid has been murdered and he was also an accused in the case pertaining to his murder and also remained in jail in connection with that case.
He further stated that he remained at his house in the night and departed from there at 10:00 am. He reached at the field of Tahir at about 5:00 pm. along with his brother. After talking for 5-10 minutes, Tahir asked them to sit as he was going to bring some food for them. House of Tahir is situated about 1½ - 02 Furlongs from the tomato field. Tahir came back after half an hour and they both ate food. He further stated that Tahir met them at Mohari Village and then they came to his field of Tomato. They met Tahir at Mohari Village at about 3:30 pm. Mohari village and Meerpur are situated at a distance of about 01 mile. They went to Meerpur and, thereafter, to village Mohari on foot. At village Mohari, Tahir was cutting a ''neem' tree and from there they came altogether to the Tahir's field of Tomato, which was situated at a distance of about 03 miles from there. Village Meerpur, Mohammadpur and Sultanpur falls in between Mohari and Tomato field of Tahir, while the house of Tahir is situated at Village Katra.
He further submitted that after 05 minutes of taking food, accused persons came and started assaulting them. Shahzad and Ali Beg assaulted him with ''banka' and thereafter they assaulted his brother Bansi. Two unknown persons also assaulted his brother. He was also assaulted by Ali Beg and Bachhoo. Bachhoo hit him thrice with ''ballam' and he could not remember as to how many times he was assaulted with ''banka' by Ali Beg. When accused persons departed from there, he ran from there and came to the police station. He, from the spot, at first went to Boorh gaon and reached there at about 8:00 pm., where he met Babu Pandit and told him about the whole incident. Thereafter, he came to his house, which is situated at about one mile away from Boorh gaon and reached there at about 11:00 pm. and told his fellow villagers including Ramchandra Lohar, Lala and Khushi etc. about the incident. In the next morning, a ''chowkidar' of Village Sauraiya came to his house. He went to the police station with his father and reached there at about 12:00 pm. He was taken to police station on a cot. He was badly injured and his clothes were stained in blood. Bansi was done to death by ''banka', however, he could not see as to how many persons have assaulted him. He also received injuries from ''ballam' at the hip and also on the back. He was stabbed by ''ballam' .
P.W.-2 Dr. K.S. Vig, had examined the injuries of P.W.-1/Ram Sewak and prepared the Injury Report, Exhibit-ka-2. The details of the injuries as noted by him has been described in detail at Para No. 7 of this judgment. It has been specifically stated by this witness that all injuries on the person of P.W.-1 might have been caused on 03.01.1982 at 6:00 pm. P.W.-3/Dr. M.A.R. Siddique, had conducted the post-mortem on the body of deceased Bansi and has prepared the post mortem report, Exhibit-ka-3, the details of the post mortem report prepared by this witness has been elaborately dealt with in Para No. 8 of this judgment.
P.W.-4/Constable Kedar Nath Tiwari has wirtten the FIR and prepared the chick First Information Report, Exhibit-ka-4 and proved the same in his hand writing.
P.W.-5/Shri Gulab Chandra Bhatia is the Investigating Officer of this case, who prepared the inquest, (Exhibit-ka-5) of deceased Bansi and also prepared the necessary papers for the purpose of post-mortem i.e. Exhibit-ka-6, photo lash, Exhibit-ka-7, Chitthi R.I., Chitthi C.M.O., Exhibit-ka-11 and also prepared Site Plan, Exhibit-ka-8. He also took plain and blood stained soil from the spot and prepared memo of the same as Exhibit-ka-9 & Exhibit-ka-10 and also send the clothes worn by the deceased for chemical examination and after recording the statement of the witnesses submitted charge-sheet, Exhibit-ka-17 against appellants.
18. Having perused the record, it is apparent from the evidence of P.W.-1/Ram Sewak that he and his brother Bansi were on inimical terms with Bachhoo, as they both were charged with committing ''dacoity' in the house of Bachhoo, wherein the son of Bachhoo was injured. They also remained in jail in that case. It is also stated by P.W.-1/Ram Sewak that they were released on bail about 1-1/2 -02 months before the incident and also that Bansi and Bachhoo were having a dispute pertaining to some land, however, the said land was settled in favor of Bansi. So, there appears sufficient motive with appellant to commit the crime. However, it has also to be kept in mind that enmity is a double edged weapon and it is always not mandatory that on the basis of enmity certain offence is likely to be committed, to the contrary, false implication may also be made on the basis of enmity. It transpires from the record that Bansi and P.W.-1/Ram Sewak were having enmity with accused Bachhoo. It has also come in the evidence of P.W.-1/Ram Sewak that appellant Shahzad was the servant of Bachhoo and other 02 appellants namely Ali Beg and Tahir are cousins of Shahzad.
19. There can not be any doubt that while appreciating the evidence on record the court is required to exercise due diligence though the standard of such exercise would be of a prudent person. The Court must bear in mind the facts and circumstances in which the crime has been committed, the quality of evidence, nature of the witnesses, their level of understanding and power of perception and reproduction. The quest must be to find out the truth from the evidence on record. At the same time, it must remain in the mind that there cannot be a prosecution case with a cast iron perfection. Nevertheless, obligation lies on the court to analyze and assess the evidence on record, with reference to trustworthiness and truthfulness of the prosecution winesses, by a process of sincere judicial scrutiny adopting the yard stick of settled principles of appreciation of the evidence. What is to be insisted upon is proof beyond reasonable doubt. The contradictions, infirmities which might have been pointed out in prosecution case, must be assessed at the yardstick of probability. Unless, infirmities and contradictions are of such a nature so as to undermine the root of the evidence and which go to the core of the prosecution case, over-emphasis may not be given to such minor contradictions and infirmities. To judge the credibility of the evidence of a witness, one has to look into his evidence, and if any discrepancies are found in the ocular account of the witnesses not affecting the root of the case, the witness may not be labeled as not credit worthy. Even honest and truthful witnesses may differ in some details, which may not be related to the core of the prosecution case and their evidence therefore must be appreciated keeping in mind the power of observation, retention and reproduction as well as the human conduct and occurring incidents in ordinary course of nature.
Perusal of record would reveal that instant case is based on the single testimony of P.W.-1/Ram Sewak. The law with regard to appreciation of evidence of solitary witness is no more res integra and it has been settled by catena of decisions that to convict the accused persons of a case based on the testimony of a single witness, the quality of evidence of such solitary witness should be wholly reliable.
At the outset we would like to observe that there cannot be any doubt in the proposition that Section 134 of Evidence Act does 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 "On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
"The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too 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 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 a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the 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 to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither 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."(Emphasis Ours) 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 suspicions 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 and the quantity, rather 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.
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."
In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 held as under :-
"As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : 1981CriLJ1012 , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against accused-appellants in the case at hand."
In Gangabhavani vs. Rayapati Venkat Reddy and Ors. Reported in MANU/SC/0897/2013 held as under:-
"In State of U.P. v. Naresh MANU/SC/0228/2011 : (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held: In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. MANU/SC/0053/1959 : AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police MANU/SC/0761/2012 : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) MANU/SC/0333/2013 : (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 has held that "The principles for appreciation of evidence in the said case came to be settled by the Apex Court in trial against the accused in a rape case but the principles apply as well to all trials. In para-5, the Apex Court observed and settled following principles for appreciation of evidence without entering into re-appraisal or re-appreciation of the evidence in the context of minor discrepancies. The principles laid down are as under:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
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-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, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would 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. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v.state of punjab (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186)."(Emphasis ours) Having tested the evidence of P.W.1/Ram Sewak on the touchstone of ratio propounded in above mentioned case laws, we find certain glaring inconsistencies and inherent weaknesses in the testimony of P.W.-1/Ram Sewak. In the First Information Report, it has been stated by P.W.-1/Ram Sewak that they met Tahir and told him that they are hungry and Tahir went to his home to bring some food for them and returned after 02 hours. Thereafter, they ate food and at this point, accused persons including Ali Beg came on the scene and started assaulting them. P.W.-1/Ram Sewak in his examination in chief has stated that Tahir came back with food after 01-1.5 hours at about 6:00 pm. and after 01 hour of his arrival, accused Bachoo and Shahzad came, Ali Beg had come earlier. P.W.-1/Ram Sewak in Para 14 of his evidence has stated that they reached at the field of Tahir at about 5:00 pm. and they had a talk for about 5-10 minutes, then Tahir told them that he is going to bring some food for them. House of Tahir, according to him, was situated about 1.5 or 02 furlongs from there and he returned in half an hour and, thereafter, they took food. P.W.-1/Ram Sewak, in Para 17 of his evidence, has stated that after 05 minutes of taking food, 02 unknown persons came and soon thereafter Bachho, Ali Beg and Shahzad arrived and assaulted them. So, there is glaring contradiction in the testimony of the sole witness i.e. P.W.-1/Ram Sewak, with regard to the timing of taking of food by them as well as with regard to manner of arrival of accused persons on the spot.
20. Perusal of FIR would also reveal that it has been stated therein that when accused persons went away, PW-1 Ram Sewak ran from there and came to the police station. There is no mention in the FIR that he went first to Police Station Ram Nagar and, thereafter, he was either directed or himself came to P.S. Mohammadpur. In his examination in chief, P.W.-1/Ram Sewak has stated that when after killing his brother and assuming him dead, appellants went away, he came to the police station and lodged the FIR. There is no mention in his testimony that either he first went to P.S. Ram Nagar or he was directed to lodge the FIR at Police Station Mohammadpur, where the FIR was ultimately lodged. P.W.-1/Ram Sewak, however, in his cross-examination in Para 23 has stated that Village Boorhu is situated about 1-1.5 Furlong away from the scene of crime and Village Kushvehta and Village Hafizpur are situated about 01 mile away, while Village Katrakandarval is about 02 Furlongs away from the spot.
21. He further stated in his evidence that he sraight away went to Village Boorhu from the scene of crime and reached there at 8:00 pm., where he met with one Babu Pandit and told him as to how and who had assaulted him and his brother and from there he returned to his house at about 11:00 pm., which is situated about 01 mile away from Boorhu Village. He also informed Ramchandra Lohar, Lala, Khushi, etc. of his village, as to who had assaulted him and his brother. He admitted in his evidence that one ''Chowkidar' lives in Village Boorhu , while there is no ''chowkidar' in his village. P.W.-1/Ram Sewak in Para 26 of his evidence has also stated that a ''chowkidar' of Village Sauraiya also came to his house before sunrise, but surprisingly, the prosecution did not take pains to produce either Babu Pandit, who met PW-1 Ram Sewak at Village Boorhu or Ramchandra Lohar, Lala and Khushi residents of the village of P.W.-1/Ram Sewak, to whom Ram Sewak had narrated the incident. The ''chowkidar' of Village Sauraiya, who met Ram Sewak in the early morning on 03.01.1982 has also not been produced as a witness. It is also strange and improbable as to why the First Information Report was not lodged by any relative or even parents of deceased Bansi or injured Ram Sewak in the night, when injured Ram Sewak had reached his house at about 11:00 pm, on 03.01.1982. and the dead body of Bansi was lying at the scene of crime. Therefore, there appears major contradictions in the testimony of P.W.-1/Ram Sewak, with regard to the manner in which the FIR has been lodged. He stated in the First Information Report and even in his examination in chief that he reached the police station straight away from the scene of occurrence, while in his evidence, he stated to have first gone to village Boorhu and, thereafter, came to his home village Hafizpur, which is highly improbable.
22. Perusal of evidence of P.W.-1/Ram Sewak would further reveal that in his cross-examination he has attempted to explain the delay caused in lodging of the FIR on 04.01.1982 at 3:10 pm., as the incident had occurred on 03.01.1982 at 6:00 pm, by introducing the facts that P.W.-1/Ram Sewak along with his father at first went to P.S. Ram Nagar and, thereafter, they were directed to approach Police Station Mohammadpur by the Clerk of the police station Ram Nagar. P.W.-1/Ram Sewak in Para 26 to 31 of his evidence has stated that he along with his father went to lodge the First Information Report at P.S. Ram Nagar and they reached Police Station at about 12:00 pm. He was taken on foot to the police station on a cot. One Sub Inspector of Police Station Ram Nagar took them to P.S. Mohammdapur and his father also informed at P.S. Mohammadpur that they had gone at first to P.S. Ram Nagar, however, he did not mention this in the First Information Report that one Sub Inspector of the Police Station Ram Nagar accompanied them.
23. Surprisingly, in Para-31 of his evidence, P.W.-1/Ram Sewak has stated that he remained at P.S. Mohammadpur for whole of the night and his FIR was lodged in the morning. He also stated that the police went to the spot in the night itself and, thereafter, he was medically examined at about 3:00 pm. It is also stated by him that he did not went to the scene of crime thereafter. Contrary to his statement, P.W.-4/Constable Kedar Nath Tiwari, who is the scribe of the Chick FIR, has stated that Ram Sewak had come to lodge FIR alongwith his father only and no Sub-Inspector or Constable of Police Station Ram Nagar came with them. P.W.-5/Gulab Chandra Bhatia, who is the Investigation Officer of the case, has also stated in his evidence that informant Ram Sewak came alone at Police Station Mohammadpur. In Para 10 of his cross-examination, P.W.-5/Gulab Chandra Bhatia has also stated that he inquired from the informant about the reasons of delay in lodging the First information Report, to which he replied that he had come to the police station hiding from accused persons. He acknowledged that no police personnel of Police Station Ram Nagar came with Ram Sewak to P.S. Mohammdapur. Careful scrutiny of the evidence of P.W.-1/Ram Sewak would reveal that the explanation of delay in lodging FIR, as provided by this witness, that he first went to Police Station Ram Nagar and from there one Sub Inspector accompanied them to Police Station Mohammadpur is patently false.
24. One more glaring circumstance, which renders the story of the prosecution as highly improbable is that P.W.-1/Ram Sewak has admitted in his evidence in Para 26 that nobody went near the dead body of his brother (Bansi) in the night and his mother could go to the scene of crime, where the dead body of Bansi was lying, only in the morning. It is highly improbable that the parents of Bansi , would leave the dead body of their son alone in an agricultural field, situated about a distance of about only one or two miles from their home and will take the risk of the body being eaten by the wild animals as well as by stray dogs.
25. Another important inconsistency in the case of the prosecution is the one pertaining to the medical evidence not supporting the ocular version of the incident. It has been the consistent case of the prosecution, as has been stated by the injured witness P.W.-1/Ram Sewak, that appellant Ali Beg hit him with ''Bhala/Ballam' and to his brother with ''lathi' and ''banka'.
P.W.-2/Dr. K.S. Vig has stated that all injuries inflicted on the person of P.W.-1/Ram Sewak may be caused on 03.01.1982 at 6:00 pm, similar was the statement of P.W.-3/Dr. M.A.R. Siddique. It has specifically been stated by P.W.-2/Dr. K.S. Vig in his cross-examination that he did not see any injury on the person of Ram Sewak, which may be a result of ''ballam' or ''lathi'. P.W.-3/Dr. M.A.R. Siddique has also stated that the injuries sustained by the deceased may be inflicted by assault of ''banka'. Despite the statement of P.W.-1/Ram Sewak that he was hit by ''ballam' by appellant Ali Beg, 03 to 04 times, on his back, when no injury has been found on his person commensurate to ''ballam' which raises a serious doubt about the reliability of this witness.
26. One more glaring circumstance, which has shaken the reliability of this solitary witness P.W.-1/Ram Sewak, is that he narrated in the FIR that soon after consuming the food (Roti with salt) brought by appellant Tahir, all accused persons came there and assaulted them. This statement has been fortified by him in his examination in chief, when he stated that appellant Tahir went to fetch same food for them from his home and came back at about 6:00 pm. and after 01 hour, accused persons came and assaulted them. In Para 17 of his cross-examination, P.W.-1/Ram Sewak has stated that after 05 minutes of taking their food, which was brought by appellant Tahir, accused persons came and assaulted them. The crux of the above mentioned evidence of P.W.-1/Ram Sewak is that soon after consuming the food, which was brought by Tahir, P.W.-1/Ram Sewak and Bansi were assaulted by the appellants and Bansi died on the spot. In the postmortem report, which has been proved by P.W.-3/Dr. M.A.R. Siddique and also in his statement it has been mentioned that semi-digested food weighing about 02 ounces was found in the stomach of the deceased. It is highly improbable that when Bansi had been done to death, soon after consuming food or even to say a little after taking of food, how only 02 ounce of food, that too in a semi-digested position has been found in his stomach and this glaring contradiction has not been explained by the prosecution, which throws a cloud of suspicion over the reliability of P.W.-1/Ram Sewak.
27. P.W.-1/Ram Sewak in Para 13 of his statement has stated that he reached his home in the night of Friday and after staying for whole night, he departed at 10 am. He stayed at Meerpur for a short while and departed from there at 3:00 pm. If they had taken some food either at their home or at Meerpur, then semi-digested food found in the stomach of the deceased is not unusual, but if they had taken food, as claimed by the prosecution, at 5-6:00 pm. and soon after consuming the food deceased Bansi was done to death, presence of semi-digested food in the stomach of the deceased certainly hit the core of the prosecution case. There are other major contradictions and inconsistencies and inherent weaknesses in the statement of P.W.-1/Ram Sewak about brining of food by Tahir and also about the commission of crime thereafter.
28. Another glaring improbability appearing on the surface of the prosecution evidence is that despite being seriously injured, P.W.-1/Ram Sewak did not try to get himself treated anywhere and the abnormal conduct of appellant Tahir, as stated by P.W.-1/Ram Sewak i.e. bringing of food for PW-1 Ram Sewak and deceased Bansi and thereafter assaulting them is not acceptable on the touch stone of probability. There is no need to cite various case laws for the proposition that the standard of accepting the testimony of any witness is the standard of a normal prudent person and if we peruse the evidence of P.W.-1/Ram Sewak, we are of the considered opinion that his evidence is not reliable, trustworthy and the same could not be acted upon.
29. Having considered the evidence of P.W.-1/Ram Sewak in the background of the submissions made by learned counsel for the parties as well as in the backdrop of the law mentioned herein-before, we are of the considered view that the evidence of P.W.-1/Ram Sewak, who is the solitary witness of the alleged crime could not be believed on following scores:-
I. P.W.-1/Ram Sewak has stated in his cross-examination that he was assaulted by ''ballam', but no injury corresponding to the weapon ''ballam' or ''bhala' has been found on his person or on the person of the deceased Bansi.
II. In his examination in chief and also in cross-examination, P.W.-1/Ram Sewak has stated that Tahir caught hold of Bansi (Deceased), while in FIR, he stated that Tahir caught hold of him. In First Information Report as well as in the statement of P.W.-1/Ram Sewak, role of assault by ''bhala/ballam' to him was assigned to Ali Beg, while in cross-examination assault with ''banka' was attributed to Ali Beg.
III. Neither in FIR nor in the statement of P.W.-1/Ram Sewak, it is mentioned that informant/injured Ram Sewak first went to P.S. Ram Nagar in the morning and from there he was directed to approach P.S. Mohammadpur. However, in cross-examination, a new story has been developed by him that he along his father first went to Police Station Ram Nagar and from there a Sub-Inspector of the Police Station Ram Nagar accompanied them to P.S. Mohammadpur, where the FIR was ultimately lodged.
IV. P.W.-1/Ram Sewak has stated in his cross-examination that Village Boorh is about 1.5 to 02 km. away from the spot, while Village Kushvehta and Hafizpur is about one mile away and Village Katra Kandarval is about 02 Furlongs away from the spot, but instead of coming to his house (Hafizpur), he first went to Village Boorh in seriously injured condition and then came back to his house Hafizpur without any justification, which is highly improbable.
V. P.W.-1/Ram Sewak in his statement has stated to have met one Babu Pandit at Village Boorh at 08.00 p.m. on the day of occurrence and also stated to have narrated to him the whole incident. Similarly, he stated to have informed the villagers of his home village namely Ram Chandra Lohar, Lala and Khushi, etc. about the incident. Surprisingly, neither Babu Pandit nor any other person of his village was produced as witness by the prosecution, which may corroborate his version of the incident, as his testimony is not trustworthy.
VI. P.W.-1/Ram Sewak has stated that Chowkidar of Village Sauraiya met him in the next morning, but even this Chowkidar has not been produced as prosecution witness nor any information was given by this ''chowkidar ''to the police station concerned.
VII. P.W.-1/Ram Sewak has stated that nobody of his house went near the dead body of his brother Bansi, who was lying just about one or two miles away from his house and it was only in the next morning that his mother went there. This conduct of the parents of deceased Bansi is highly improbable, as there was an apparent danger that the dead body, which is lying alone openly in a field might eaten by wild animals or stray dogs.
VIII. In Para 31 of his evidence, witness Ram Sewak has stated that he remained at P.S. Mohammadpur for whole of the night and his report was lodged next morning. He went to the extent of claiming that the police went to see the spot in that night itself. While at Para 26 of his cross-examination, he has stated that he reached police station at about 12:00 in the noon.Both these statements are in direct contrast to the version of prosecution and his statement given in examination in chief.
IX. P.W.-1/Ram Sewak has stated in his evidence to have consumed food with deceased Bansi, which was brought by appellant Tahir and soon thereafter Bansi was murdered. It is also admitted by him that appellant Tahir was his friend. The story, as narrated by P.W.-1/Ram Sewak, pertaining to the fact that they first met Tahir at Village Mohari and from there they came to the Tomato field of Tahir and appellant Tahir after leaving them in the Tomato field, went to his house to bring some food for them and when they consumed the food brought by Tahir, soon thereafter they were assaulted and Bansi was murdered. At first, the story of the prosecution pertaining to the role played by appellant Tahir is highly improbable. There is a big question mark as to why Tahir will bring food for the two brothers and will become part of the assailants. Secondly, there is clear contradiction in the ocular and medical evidence available on record pertaining to the story as put forth by by Ram Sewak to have eaten food, brought by Tahir before they were assaulted. P.W.-3/Dr. M.A.R. Siddique has stated that the food become semi-digested after 2.5 to 03 hours of consumption. In the Post mortem report of deceased Bansi, only 02 ounce of semi-digested food has been found in his stomach. Presence of only 02 ounce of semi-digested food in the stomach of the deceased Bansi in semi-digested condition is in direct contrast with the prosecution version of the incident, as narrated by P.W.-1/Ram Sewak that soon after taking the food, Bansi was done to death.
X. There are other glaring contradictions and inherent weaknesses in the testimony of P.W.-1/Ram Sewak, with regard to the manner of reaching Village Mohari and, thereafter, reaching to Tomato field of Tahir and the manner in which the assault has been claimed to have occurred and no body saw them.
30. In Anil Phukan Vs. State of Assam, MANU/SC/0228/1993 relied on by appellants, Hon'ble Supreme Court held as under:- "Indeed 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 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." (Emphasis ours) In another case Joseph Vs. State of Kerala reported in MANU/SC/1084/2002, relied on by appellants, Hon'ble Supreme Court held as under:-
"14........ Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable.Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable. "(Emphasis ours) In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, " Para 13 the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
In AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan Hon,ble Supreme Court held that Para 17 "Suspicion, however grave it may be, cannot take place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
31. This Court is conscious and aware of the fact that it is dealing with the evidence of a witness who is claiming to be an injured witness of the crime and generally the evidence of an injured witness is considered at a higher pedestal than other witnesses as he is a stamped witness. But keeping in view the whole testimony of PW-1 Ram Sewak we are unable to accept the same as reliable and truthful and it appears that the true account of the occurrence has been suppressed by PW-1 Ram Sewak and truth and false hood are so intermixed in his evidence that they could not be separated and the only course available is to discard the evidence of this witness. Therefore, keeping in view the inherent inconsistencies in his evidence it is in the interest of justice that his untruthful and unreliable testimony must be discarded. In view of above discussion we are not inclined to accept the unreliable testimony of solitary witness PW-1 Ram Sewak. Once the Testimony of this solitary eye witness has been found to be not reliable there is no other evidence on record which may come to the rescue of the prosecution and the case of the prosecution, due to the inherent weakness, in the testimony of PW-1 Ram Sewak, is bound to collapse. The testimony of PW 1 Ram Sewak falls short of the requirement of proof of the charge beyond all reasonable doubt. The Appellants are thus entitled to the benefit of doubt in the facts and circumstances of the case. The contrary view taken by the trial Court is against the weight of the evidence on record and the exposition of law cited at the Bar and traversed herein above. The trial Court appears to have committed a manifest error in appreciating the evidence of solitary eye witness and has ignored the material contradictions and inherent inconsistencies appearing on the surface of his evidence. Resultantly the Judgment and order of conviction of the trial Court could not stand and is liable to be set aside.
32. The reasons mentioned herein-above are sufficient to raise a reasonable doubt about the incident, as narrated by P.W.-1/Ram Sewak and in view of above, the impugned Judgment and order could not be sustained. Thus, appeal filed by the appellant is allowed. The judgment and order of conviction dated 24.12.1983 passed by learned IInd Additional District and Sessions Judge, Barabanki, in Sessions Trial No. 404 of 1982, arising out of Case Crime No. 01 of 1982 is set-aside and Appellants namely Tahir, Ali Beg, and Shahzad convicted by the trial Court are acquitted of all the charges framed against them. They are on bail. Their personal bonds are cancelled and sureties are discharged. The appellants will ensure compliance of the provision of Section 437-A of the Cr.P.C. by each appellant filing two sureties and personal bond before trial Court to its satisfaction, within 15 days from today.
A copy of this judgment along with subordinate court record be transmitted to the trial Court, at the earliest.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyay,J.)
Order Date :- 12.12.2019/Praveen