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PETITIONER:

ANIL PHUKAN

Vs.

RESPONDENT:

STATE OF ASSAM

DATE OF JUDGMENT17/03/1993

BENCH:

ANAND, A.S. (J)

BENCH:

ANAND, A.S. (J)

SINGH N.P. (J)

CITATION:

1993 AIR 1462 1993 SCR (2) 389

1993 SCC (3) 282 JT 1993 (2) 290

1993 SCALE (2)88

ACT:

Indian Penal Code, 1860:

Sections 302 and 34--Appellant and his brothers inflicting

blows on deceased--Prosecution case that words and abuses

exchanged between appellant and deceased regarding repayment

of loan--Later assault ensued--Medical evidence consistent

with theory that deceased assaulted by only one

person--Whether conviction can be based on the testimony of

sole eye witness--Held accused entitled to benefit of doubt.

HEADNOTE:

The prosecution alleged that the appellant borrowed a sum of

Rs. 450 from the deceased and had executed two hand notes

Ex. 7 and Ex. 8, promising to repay the amount on 21.3.1976.

On the said date the deceased accompanied by his nephew,

PW.3 proceeded to the village of the appellant and as he was

getting late, PW.3 carried with him a torch light. The

distance of the house of the deceased from that of the

appellant was about one furlong. The appellant was present

in the fields in front of his house and on being asked as to

why he had not come to return the money, he asked them to

wait there and proceeded towards his house- When the

appellant did not return for some time, the deceased

alongwith PW.3 proceeded towards the house of the appellant

when they found him and his two brothers coming towards them

variously armed, one had a crowbar while the others had a

crooked dao and a kupi dao with them. PW.3 apprehended some

danger from the appellant and his brothers, but his uncle

told him that since they had done no wrong, they need not be

afraid of any assault. On coming near the deceased and

PW.3, one of the brothers gave a blow with a crowbar, while

the other two brothers assaulted the deceased thereafter.

PW.3 pulled the deceased towards his house and implored the

accused not to assault him. At the asking of his uncle PW3

ran away to his house and gave the information to the wife

of the deceased and also narrated the occurrence to PW.4.

The wife of the deceased went to PW.6, and after telling him

as to what had been told to

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her by PW3 she requested him to accompany her to the place

of occurrence. On reaching the place of occurrence, they

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found him lying on the spot with injuries on his person but

he was still alive. Two of the PWs brought a bullock cart

and PW.7 after lifting the body with some difficulty brought

it to his house and kept it in the verandah. However,

before any medical aid could be provided, the deceased

succumbed to the injuries at night.

The first information report was lodged at the police

station at 12.30 p.m. by PW.2. During the investigation,

some weapons including an axe were seized from the house of

the accused and on the same day one of the brothers was

arrested at 6.45 p.m. and the other two brothers surrendered

subsequently in the court. The Investigation Officer

prepared a sketch of the place of occurrence and sent the

body for postmortem examination. The appellant alongwith

his brothers were tried for offences under section 302/34

IPC for the murder of the deceased, and the Sessions Judge

convicted all the three brothers for the said offence and

sentenced them for life.

On appeal by the three brothers the Division Bench of the

High Court upheld the conviction and sentence of all the

three.

The instant SLP was admitted as regards one petitioner only

and notice was issued. The S.L.P. of the second petitioner

was dismissed while the third brother did not file any

appeal.

Allowing the appeal and acquitting the appellant, this

court,

HELD: 1. 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. It is only when

the courts find that the single eye-witness is a wholly

unreliable witness that his testimony is discarded in toto

and no amount of corroboration can cure that defect. [393E-

F]

391

2. The instant case, the medical evidence is consistent with

the theory that the deceased had been assaulted only by one

person and not by all the three brothers as alleged by the

prosecution. The possibility, therefore, that Mahendra

accused alone had caused injuries on the deceased cannot be

ruled 'Out. May be on account of the recovery of the two

bonds Ext. 7 and Ext 8, from the house of Anil, he was also

implicated. [395G]

3. The origin of the fight is totally obscure, and the

prosecution has not explained the genesis of the origin of

the fight either. It is not even the case of the

prosecution that Anil had refused to repay the loan or that

any hot words or abuses had been exchanged between Anil and

the deceased when the later had demanded from him the

repayment of the loan.

[395H, 396A]

4. In view of the infirmities of the prosecution evidence it

would not be safe to rely upon the testimony of Ajoy PW.3,

the sole eye-witness, without looking for independent

corroboration and as already noticed, the corroboration

furnished by the prosecution, unlike in the case of Mahendra

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the appellant's brother, is negative in character in so far

as the involvement of Anil appellant is concerned. [396B]

5. The appellant, was held entitled to the benefit of doubt

and granting him that benefit, his conviction and sentence

for the offence under Section 302/34 IPC were set aside.

[396C]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 757 of

1985.

From the Judgment and Order dated 6.11.1984 of the Gauhati

High Court in Criminal Appeal No. 11 of 1979.

Sunil Kumar Jain, P.D. Tyagi and Vijay Hansaria for the

Appellant.

S.K. Nandy for the Respondent.

The Judgment of the Court was delivered by

DR. ANAND, J. Anil Phukan and his brothers Mahendra Phukan

and Jojneswar Phukan were tried for an offence under Section

302/34 IPC for the murder of one Trinavan Chandra Baruah on

21.3.1976 at about 8 p.m. The learned Sessions Judge

convicted all the three brothers for the said offence and

sentenced each one of them to suffer imprisonment for life

392

An appeal was preferred by all the three brothers against

their conviction and sentence in the Gauhati High Court. A

Division Bench of that court vide judgment dated 6.11.1984

upheld the conviction and sentence of all the three. A

Special Leave Petition (Crl.) No. 561/85, was preferred by

Mahendra Nath Phukan, and Anil Phukan, the third brother

Jojneswar, however, did not file any special leave petition.

On 2.9.1985, the special leave petition as regards Mahendra

Nath Phukan was dismissed while notice was issued in the

petition as regards Anil Phukan. Subsequently, on

29.10.1985, special leave was granted to Anil Phukan and on

29.4.1986, he was also directed to be released on bail to

the satisfaction of the Chief Judl. Magistrate, Golaghat,'

Assam. We are, therefore, at this stage concerned only with

the criminal appeal by special leave, of Anil Phukan.

In brief, the prosecution case is that the appellant, Anil

Phukan had borrowed a sum of Rs. 450 from Trinayan Chandra

Baruah, deceased and had executed two hand notes Ex. 7 and

Ex. 8, promising to repay the amount on 21.3.1976. However,

he did not repay the amount, On 21.3.1976, the deceased

accompanied by his nephew, Ajoy Baruah PW3, proceeded to the

village of the appellant and as he was getting late, Ajoy

Baruah PW3 carried with him a torch light. The distance of

the house of the deceased from that of the appellant is

about one furlong. Anil appellant was present in the fields

in front of his house and on being asked as to why he had

not come to return the money, he asked them to wait there

and proceeded towards his house. Later on, when Anil did

not return for some time, the deceased alongwith Ajoy PW3

proceeded towards the house of the appellant when they found

all the three brothers coming towards them variously armed.

Mahendra had a crowbar while jojneswar had a crooked dao and

Anil a kupi dao. Ajoy PW3 apprehended some danger from the

appellant and his brothers but his uncle told him that since

they had done no wrong, they need not be afraid of any

assault. On coming near the deceased and Ajoy PW3,

Mahendra, who came first, gave a blow to Trinayan on his

head with the crowbar, the other two brothers also allegedly

assaulted the deceased thereafter. Ajoy PW3 pulled the

deceased towards his house and implored the accused not to

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assault him. At the asking of his uncle, Ajoy PW3 ran away

to his house and gave the information to the wife of the

deceased PW5 Debayani Baruah, about the occurrence. He also

narrated the occurrence to PW4, Bijoy Baruah. the wife of

the deceased went to PW6, Punaram Gogoi, and after telling

him as to what had been told to her by Ajoy PW3, she

requested him to accompany her to the place of

393

occurrence. On reaching the place of occurrence, they found

Trinayan lying on the spot with injuries on his person but

he was still alive. Pws Bijoy and Ajoy brought a bullock

cart from Sabharam Bora PW7 and after lifting the body of

Trinayan with some difficulty brought it to his house and

kept it in the verandah. However, before any medical aid

could be provided, the deceased succumbed to the injuries at

night. The first information report was lodged at Golaghat

Police Station the next day in the afternoon at 12.30 p.m.

by Surendra Nath Gogoi PW2. During the investigation, some

weapons including an axe were seized from the house of

Mahendra accused. On the same day, Mahendra was arrested at

about 6.45 p.m. The other two brothers Anil and Jojneswar

surrendered subsequently in the court. The I.O. prepared

the sketch plan of the place of occurrence and sent the body

for postmortem examination. The autopsy revealed that the

deceased had two incised injuries on the head besides one

swelling and an injury on the inner part of his thigh. The

prosecution in all examined 12 witnesses to connect 'the

accused with the crime.

This case primarly hinges on the testimony of a single eye

witness Ajoy PW3. 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. It is

only when the courts find that the single eyewitness is a

wholly unreliable witness that his testimony is discarded in

toto and no amount of corroboration can cure that defect.

It is in the light of these settled principles that we shall

examine the testimony of PW3 Ajoy.

Ajoy PW3, on his own showing, is the nephew of the deceased.

He had accompanied the deceased to the place of occurrence

when the later went to recover the loan from Anil appellant.

This witness, therefore, is a relative of the deceased and

an interested witness. Of course, mere relationship with

the deceased is no ground to discard his testimony if it is

otherwise found to be reliable and trustworthy. In the

normal course of events, a close relation would be the last

person to spare the real assailant

394

of his uncle and implicate a false person. However, the

possibility that he may also implicate some innocent person

along with the real assailant cannot be ruled out and

therefore, as a matter of prudence, we shall look for some

independent corroboration of his testimony, to decide about

the involvement of the appellant in the crime. Since, there

are some doubtful aspects in the conduct of Ajoy PW3, it

would not be safe to accept his evidence without some

independent corroboration, direct or circumstantial.

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The unnatural conduct of Ajoy PW3 which has come to our

notice from the record is that though he was present

alongwith the deceased at the time of occurrence, on

21.3.1976, at about 8 p.m., he made no attempt to save his

uncle from the assault. He did not even continue to stay

there, though of course according to him, he ran for his

life on being advised so by his uncle. He was not assaulted

though both he and his uncle were unarmed. Even if Mahendra

was engaged in assaulting the deceased, Anil, who was also

allegedly armed neither made an attempt to assault Ajoy PW3

nor even chased him. PW3 Ajoy did not himself lodge the

FIR. Of course, he gave information about the occurrence to

PW4, PW5, PW7 and others immediately after the occurrence

describing the manner of assault and the names of the

assailants but why he did not lodge the FIR has not been

explained by him. In his testimony in the court he deposed

that after Mahendra accused gave blow with the crowbar on

the head of the deceased "other accused also assaulted him".

He did not describe as to on which part of the body of the

deceased, had Anil and Jojneswar caused the injuries and

made a general vague statement without assigning any

particular injury to either of them. When we look to the

medical evidence, we find that the deceased-had suffered two

injuries on his head and no other injury on any other part

of the body. In all, four injuries were recorded in the

post-mortem report. The other two injuries, according to

the doctor, could have been the result of a fall and indeed

looking to the nature of those injuries, which are in the

nature of a swelling on the back of the interscapular region

and a lacerated wound on the interior aspect of the right

thigh, it is possible to agree with the medical witness PWl

Dr. Ganesh Ch. Buragohain, that those injuries could have

been caused by a fall and were not the result of any direct

impact with a weapon of assault. Both the head injuries are

almost of the same dimensions. The possibility, therefore,

that both the injuries had been caused to the deceased by

Mahendra with the crowbar, who according to PW3 had hit the

deceased on the head cannot be ruled

395

out. In this connection, it would also be relevant to not

that according to the testimony of the Investigating

Officer, PW11 Abhiram Taye, all the weapons like the crowbar

Ex.M5, a dao, an axe and a hand dag were recovered only from

the house of Mahendra. We have it from the testimony of PW3

and the first informant PW2 that all the three brothers

lived separately. No recovery was affected from the house

of the appellant Anil at all. All that was seized from his

house were two bonds Ex.7 and Ex.8, undertaking to repay the

loan to the deceased. Unlike Mahendra accused he was not

even arrested on the date of the occurrence and the mere

ipse dixit of the investigating officer, that Anil had

absconded is not acceptable, particularly when the

investigating officer is totally silent as to where all he

had made the search for the appellant and when. He was not

questioned under Section 313 Cr. PC about the allegation of

absconding either. The deceased was still alive when his

wife and the other co-villagers, who have appeared as

witness reached the place of occurrence. The deceased did

not name the appellant as his assailant before anyone. The

crowbar Ex. 5 was recovered from the house of Mahendra and

according to the testimony of PW3, it was the same weapon

with which Mahendra had hit deceased on his head which

position also receives corroboration from medical evidence.

The deposition of PW4, who is the sister of PW3 Ajoy to the

effect that when Ajoy PW3 came running to the house, he told

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her that her uncle had been killed by Anil and his brothers

does not stand scrutiny because admittedly according to PW3

himself, when he ran from the place of occurrence, the

deceased was still alive and as a matter of fact he was

alive even when the wife of the deceased and other

neighbours reached there and brought him to the house. It

was only at the house while the deceased was kept in the

verandah that he succumbed to the injuries. There could

have been, therefore, no occasion for Ajoy PW3 to have told

his sister PW4, that her uncle had been 'killed' by Anil and

his brothers. This also shows that Ajoy PW3 has the

tendency to exaggerate matters. The medical evidence is

consistent with the theory that the deceased had been

assualted only by one person and not by all the three

brothers as alleged by the prosecution. The possibility,

therefore, that Mahendra accused alone had caused injuries

on the deceased cannot be ruled out. May be on account of

the recovery of the two bonds Ex.7 and Ex.8 from the house

of Anil, he was also implicated. We cannot be sure. The

origin of the fight is totally in obscure and the

prosecution has not explained the genesis of the origin of

the fight either. It is not even the case of the

prosecution that Anil had refused to repay the loan or that

any hot words

396

or abuses had exchanged between Anil and the deceased when

the later had demanded from him the repayment of the loan.

In view of the infirmities pointed out above, it would not

be safe to rely upon the testimony of Ajoy PW3, the sole

eye-witness, without looking for independent corroboration

and as already noticed, the corroboration furnished by the

prosecution unlike in the case of Mahendra, is negative in

character in so far as the involvement of Anil appellant is

concerned.

In our considered opinion, therefore, it would not be safe

to hold that the prosecution has established its case

against Anil appellant beyond a reasonable doubt. The

appellant in our opinion, is entitled to the benefit of

doubt and granting him that benefit, we set aside his

conviction and sentence for the offence under Section 302/34

IPC and consequently the judgment of the High Court in so

far as Anil appellant is concerned, is set aside and he is

hereby acquitted.

Anil appellant is on bail. His bail bonds shall stand

discharged.

N.V.K. Appeal allowed.

397