1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 996 of 2011

1. Manrakhan S/o Shri Ganpati Prasad Sharma, aged about 58

years,

2. Dipesh alias Raja S/o Manrakhan Sharma, aged about 30

years,

Both R/o village Pachri, Police Station Akaltara, District Janjgir

Champa, CG

---- Appellants

Versus

1.State of Chhattisgarh through Station House Officer, Police

Station Scheduled Caste/Scheduled Tribe Welfare District,

Janjgir Champa, CG

---- Respondent

AND

CRA No. 1001 of 2011

1.Itwari S/o Laxman Bharadwaj, aged about 50 years, R/o

Pachari, Police Station – Akaltara, District Janjgir Champa, CG

---- Appellant

Versus

1.State of Chhattisgarh through Station House Officer, Police

Station Scheduled Caste/Scheduled Tribe Welfare District,

Janjgir Champa, CG

---- Respondent

For Appellants: Shri Pravin Das and Ms. Sunita Jain,

Advocates

For Respdt/State: Shri Adil Minhaj, PL

Hon'ble Shri Justice Pritinker Diwaker

Hon'ble Shri R.P. Sharma

Judgment on Board by Pritinker Diwaker, J

07 /09/2017

As the aforesaid two Criminal Appeals arise out of the same

judgment dated 16.11.2011 passed by Special Sessions Judge

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Janjgir Champa in Special Sessions Trial No. 102/2010 convicting

the accused/appellants under Section 302/34 IPC on two counts (for

committing the murder of Basant Kurre and Gajanand Nayak), and

sentencing each of them to undergo imprisonment for life and pay

fine of Rs. 3000/- twice plus default stipulations, they are disposed

of by this common judgment.

2.In the present case there are two deceased namely Basant

Kurre and Gajanand Nayak. According to the case of prosecution,

on account of old Panchayat election dispute, on 25.04.2010 at

2.30 AM the accused/appellants went to the terrace of Basant Kurre

where he was sleeping with Gajanand Nayak and caused injuries to

them with a sharp edged weapon. Further case of the prosecution

is that at the relevant point of time Megh Singh (PW-9) – the father

of Basant Kurre came there to take some medicine from Basant

Kurre and after hearing his cries went to the terrace and found both

the injured persons lying in a pool of blood. On being asked, they

informed him that it is accused/appellants Manrakhan and Dipesh

alias Raja who caused injuries to them. Thereafter, at 3.35 AM un-

numbered FIR Ex. P-10 was lodged by Megh Singh (PW-9) followed

by numbered one being Ex. P-19 which was recorded at 12.15

hours against accused/appellants Manrakhan and Dipesh alias Raja

for the offence punishable under Section 307/34 IPC. Both the

injured persons were medically examined vide Ex. P-44 and P-45.

Injured Basant Kurre however succumbed to the injuries on

25.04.2010 itself and based on the information sent from the

concerned hospital merg Ex. P-42 was recorded. Inquest on the

dead-body of Basant Kurre was done vide Ex. P-14. Thereafter, his

dead-body was sent for postmortem examination which was

conducted by Dr. C.B. Singh (PW-11) who gave his report Ex. P-38.

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Another injured Gajanand Nayak also succumbed to the injuries

suffered by him on 29.04.2010 while taking treatment in the

hospital. On the basis of information received from the hospital

merg in respect of him was recorded vide Ex. P-49. Inquest on the

dead-body of Gajanand Nayak was done on 29.04.2010 vide Ex. P-1

and then postmortem examination thereon was conducted by Dr.

Shivnarayan Manjhi (PW-21) who gave his report Ex. P-48. During

investigation, memorandum of accused/appellant Manrakhan vide

Ex. P-3 was recorded based on which a crowbar and a T-shirt were

seized under Ex. P-6 and P-5 respectively. On the memorandum of

accused/appellant Dipesh (Ex. P-4) an axe and a half shirt were

seized under Ex. P-7 and P-8 and likewise on the memorandum of

accused/appellant Itwari (Ex. P-21), seizure of axe, club and shirt

was made under Ex. P-22 and P-23. As per FSL report Ex. P-54,

blood was found on all the seized articles including axe and

crowbar but excluding the shirt of accused/appellant Itwari. After

investigation, charge-sheet was filed by the police against all the

accused/appellants for the offences punishable under Sections 302,

201, 34 IPC and 3 (2) (v) of the Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act (hence forth called as “Special

Act”). Trial Court however framed the charge u/s 302/34 on two

counts against accused Itwari and u/s 302/34 on two counts as well

as under Section 3 (2) (v) of the Special Act against accused

Manrakhan and accused Dipesh alias Raja.

3.In order to prove its case the prosecution has examined 29

witnesses in support of its case. Statements of the

accused/appellants were also recorded under Section 313 of the

Code of Criminal Procedure in which they denied their guilt and

pleaded innocence and false implication in the case. That apart,

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two witnesses namely Raj Kumari (DW-1) and Chandra Kumar Barai

(DW-2) have also been examined by the defence in support of its

case.

4.After hearing the parties the Court below by the judgment

impugned acquitted accused Manrakhan and Dipesh of the charge

under Section 3 (2) (v) of the Special Act but has convicted all the

accused/appellants under Sections 302/34 IPC twice.

5.Counsel for the accused/appellants submit as under:

(i)That the accused/appellants have been convicted on the

basis of statement of the so-called solitary eyewitness Megh Singh

(PW-9) – the father of Basant Kurre whose entire narration is

untrustworthy for the following reasons:

(a)In the FIR (Ex. P-19) lodged by him he has not stated that he

saw anyone fleeing the spot or committing the offence. He has also

not disclosed therein the name of accused Itwari.

(b)In his statement recorded on 26.04.2010 under Section 161

of the Code of Criminal Procedure he has improved to the extent

that he saw the accused persons fleeing the spot and that the oral

dying declaration was also made by the two deceased.

(c)While deposing in the Court he resorted to further

improvement stating that he saw from the bottom of staircase the

accused persons assaulting both the deceased, but as per the

statement of Patwari (PW-14) and the brother of deceased Basant

Kurre (PW-26) anyone present in the terrace cannot be seen from

the place Megh Singh (PW-9) claims to have witnessed the incident

of assault.

(ii) That Megh Singh (PW-9) and his deceased son Basant Kurre

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were the notorious criminals and number of cases were registered

against them on the report of villagers, and therefore, in these

circumstances the possibility of some third person committing the

murder of the deceased on account of inimical terms cannot be

ruled out.

(iii)That the criminal antecedents of PW-9 Megh Singh, PW-12

Anil Satnami and PW-26 Sanjay Kurre – father and brothers of

deceased Basant Kurre have been duly proved by DW-1 Raj Kumari

vide documents Ex. D-5 to D-10.

(iv)That in case where the entire case hinges on the testimony of

the solitary eyewitness, the Court is required to deal with such

testimony with great circumspection and due caution.

(v)That there are material contradictions and omissions in the

statements of PW-12 and PW-26 and being so their credibility

becomes doubtful.

(vi)That the contents of FIR have not been proved by the

prosecution, rather the same have been denied by PW-9 to a great

extent.

(viii)In respect of accused Itwari, it is submitted by the counsel for

the appellants that had he been involved in the case, his name

would have been disclosed by PW-9 while lodging the FIR itself.

According to the counsel for the appellants, even in the

memorandum of accused Manrakhan and Dipesh, name of accused

Itwari does not find place.

(ix)That though as per the FSL report Ex. P-54 the blood has

been found on the articles seized by the prosecution except the

shirt of accused Itwari but unless and until the same is proved to be

of the blood group of the deceased persons by the serologist, such

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seizure cannot be connected with the crime in question.

6.On the other hand counsel for the respondent/State supports

the judgment impugned and submits that the findings recorded by

the Court below convicting and sentencing the accused/appellants

as described above are strictly in accordance with law and there is

no illegality or infirmity in the same. He submits that even if PW-9

has improved a bit while deposing in the Court, the fact remains

that he immediately reached the spot and the oral dying

declaration was made by both the injured persons naming the

accused persons herein to be the perpetrators of the offence, his

testimony cannot be discarded as a whole. He further submits that

prior to the incident i.e. on 5.2.2010 a report was lodged by

deceased Basant Kurre to the police against accused Dipesh for

threatening him which shows that there was some ill-will between

them and for that the accused persons might have committed the

crime in question. According to the State counsel, statement of PW-

9 has been corroborated by PW-26, may be partially, and further on

the basis of memoranda of the accused persons seizure of various

articles has been made which were stained with blood as has come

in the FSL report Ex. 54.

7.Heard counsel for the parties and perused the evidence

available on record.

8.Megh Singh Satnami (PW-9) – the lodger of the FIR and so-

called solitary eyewitness to the incident has stated that on

24.04.2010 at about 8 PM his deceased son Basant Kurre had come

to him and after taking tiffin he returned to his house. As this

witness experienced pain in his stomach in the midnight, he went

to the house of his son to take medicine which he had forgotten to

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bring with him during his visit, and when he was in the ground floor

he saw accused Manrakhan holding crowbar whereas accused

Dipesh and Itwari were holding axe. According to him, accused

Manrakhan and Dipesh were assaulting deceased Basant whereas

deceased Gajanand was being assaulted by accused Itwari. This

witness has stated that when the assault was being made, he saw

the same from the ground floor but on account of being perplexed

he did not call anyone. After the accused/appellants left the spot,

he went upstairs and saw his son and Gajanand lying down. His son

was breathing slowly whereas Gajanand was writhing. On the place

of incident, this witness is stated to have become unconscious and

regained consciousness after his sons Anil, Sanjay and Ajay came

there in the meanwhile and sprinkled water on his face. Thereafter,

according to this witness, number of villagers assembled there to

whom he informed that it is the accused/appellants who had

assaulted Basant and Gajanand. After lodging report in the police

station, both the injured persons were taken to Government

Hospital, Akaltara on a tractor where Basant breathed his last and

looking to the condition of Gajanand he was shifted to Bilaspur and

then to Raipur where he too succumbed to the injuries after four

days. On being confronted with FIR, this witness has stated in the

cross-examination that the contents written in “C to C portion

thereof pertaining to hearing the cries and going to the spot” were

not disclosed to the police by him and could not tell the reason as

to why they came to be mentioned therein. On being further

confronted with the FIR and the statement recorded under Section

161 of the Code of Criminal Procedure, this witness has stated that

he informed the police that he had seen accused Manrakhan

carrying crowbar and Dipesh carrying axe and assaulting his son

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Basant but if the same do not find place therein he could not tell

the reason for that. It is relevant to note here that in the FIR this

witness does not say that he saw anybody assaulting the deceased

or fleeing the spot but in the diary statement he has stated that he

saw the accused/appellants fleeing the spot whereas in the Court

he becomes an eyewitness and states that he saw all the three

accused persons assaulting the two deceased. On confrontation

with the diary statement he further states that he had informed the

police that he saw the accused/appellants assaulting the two

deceased and then fleeing the spot but why such things are not

mentioned therein, he could not tell the reason. Sanjay Kurre (PW-

26) – another son of Megh Singh (PW-9) has stated that on

24.04.2010 at 2-2.30 AM when he was sleeping in his house, one

Makhan Nayak came there and informed that Basant Kurre and

Gajanand were killed, and on coming to know this he accompanied

the informant to the spot and found them lying with injuries on

their body. According to this witness, after his father (PW-9)

regained consciousness, he informed him that it is the

accused/appellants who had assaulted the deceased persons. This

witness is also stated to have been informed by PW-9 that accused

Manrakhan was carrying crowbar whereas accused Itwari and

Dipesh were carrying axe. He has admitted that some criminal

cases against him and his father are pending in the courts. He has

however denied that he ever took any loan on the guarantee of

accused Manrakhan and did not return the same. In paragraph No.

18 this witness has stated that the terrace where the incident took

place was at the height of 10-10.5 feet from the ground floor and if

one stands at the ground floor, the person lying in the terrace

cannot be seen by him. The deposition of this witness carries

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several contradictions and omissions so far as it relates to narration

of the story made by Megh Singh (PW-9). Anil Satnami (PW-12) –

yet another son of Megh Singh (PW-9) has stated that on being

informed by one Makhan about Basant Kurre and Gajanand being

killed by someone when he along with his brother went there and

saw his father (PW-9) lying unconscious. He has further stated that

PW-9 did not inform him anything about the incident. According to

him, at that time both the deceased persons were in a position to

breath. He however has expressed his ignorance about there being

any dispute between his family and that of accused Itwari. He has

admitted that there was no dispute between accused Dipesh and

deceased Basant Kurre. Dr. C.B. Singh (PW-11) is the witness who

conducted postmortem examination on the body of deceased

Basant and gave his report Ex. P-38 stating therein that he noticed

the following injuries thereon:

(I) Incised wound over right frontal region – size 7 x .5 cm

skull bone directed backwards laterally, (ii) incised wound

over left frontal region directed backward laterally and

brain matter seen through injury, (iii) incised wound over

right side of chin – 4 x .3 cm, (iv) incised wound over left

fronto-parietal region – 3 x .3cm (v) incised wound over

left parietal region – 5 x .2 cm(5), (vi) lacerated wound

over left tempo-parietal region – 7 x .5 cm, (vii) incised

wound over left side angle of mandible – 8 x .7 cm, (viii)

incised wound over left side chin to leftside neck – 15 x 2

x 4 cm, (ix) two incised wounds over left forearm and

wrist – 5 x 1 & 4 x 1 cm,(x) incised wound over dorsal

aspect of hand – 6 x 1 cm, (xi) incised wound over dorsal

aspect of hand – 7 x 1 cm. Cause of death, according to

this witness has been opined as shock due to injury in the

brain and excessive hemorrhage and the mode as

homicidal in nature.

9.Laxmiram Nayak (PW-1) – the father of deceased Gajanand

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Nayak is the witness of inquest Ex. P-1. Ramkumar Satnami (PW-2)

and Kamlesh Kumar Patle (PW-3) - the witnesses of memoranda Ex.

P-3 and P-4 and the seizure of various articles made on the basis

thereof under Ex. P-5, P-6 and P-7 have not supported the case of

the prosecution. D.R. Gandharv (PW-6) is the witness who did part

of the investigation. He has stated that the FIR contains the

disclosure made by Megh Singh (PW-9) as a whole and nothing

therein has been recorded of his own. He has further stated that

PW-9 did not inform him that after seeing the gathering on the spot

he had become unconscious, or that the deceased persons were

assaulted by which particular weapons or even with respect to his

seeing the incident of assault from the ground floor.Ram Kumar

Rathore (PW-7) is the witness who recorded un-numbered FIR Ex. P-

19 and forwarded the same to the magistrate vide Ex. P-20. Satish

Kumar Dubey (PW-8) is the investigating officer who has duly

supported the case of the prosecution. He has admitted that PW-26

while making diary statement Ex. D-4 did not disclose that after

regaining consciousness his father PW-9 informed him to have seen

the incident of assault with a particular weapon. Makhanlal Nayak

(PW-10) – the neighbour of deceased Basant Kurre has stated that

after hearing cries coming from the direction of Basant Kurre's

house he went there and found him lying in an injured condition

and immediately thereafter he informed the same to his brother

(PW-26). This witness has further stated that soon thereafter

number of villagers assembled there and the deceased persons

were taken to hospital on a tractor. He is also the witness of inquest

Ex. P-1 pertaining to deceased Gajanand Nayak. Ishwar Nayak alias

Sadhu (PW-13) – brother of deceased Gajanand Nayak and witness

to inquest of deceased Basant Kurre vide Ex. P-14. Vishwanath

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Prasad Nunia (PW-14) is the Patwari who prepared spot map Ex. P-

14 who has stated that the terrace where the deceased persons

were asleep could not be seen by a person standing on the ground

floor. Mahesh Kumar Shukla (PW-15) and Dilharan Satnami (PW-16)

are the witnesses to inquest and seizure made under Ex. P-18. Dr.

Shiv Narayan Manjhi (PW-21) is the witness who conducted

postmortem examination on the body of deceased Gajanand Nayak

and gave his report Ex. P-48 stating that he noticed following

injuries thereon:

(i) Contused lacerated wound on right frontal eminence –

4 cm long traverse having three stitches – 3 cm deep on

opening.

(ii) Contused lacerated wound over right parietal

eminence 4 cm long having two stitches.

(iii) Contused lacerated wound on right parietal region

upto 4 cm bone deep at mid plane.

(iv) Incised wound on chin below lip – 13 x 0.2 cm

extending to ear.

(v) Incised wound below injury No. iv – size 6 x 0.2 cm x

1.5 cm.

(vi) Incised wound on lip – 7 x 1.5 cm traverse 2.5 cm with

breakage of two teeth.

(vii)Incised wound on right shoulder – 3 x 1 cm –

traverse 2 cm deep.

Cause of death has been opined to be due to cardio

respiratory failure as a result of head injury and complications and

its mode was homicidal.

10.Sudarshan Kumar Satnami (PW-22) is the witness to seizure

from accused Itwari under Ex. P-22. Bhagirathi Bharadwaj Satnami

(PW-23) is the witness to spot map Ex. P-12 and seizure made

under Ex. P-17. Kamlesh Kumar Kurre (PW-24) is the witness to

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seizure made under Ex. P-22 and P-23. Raj Kumari (DW-1) is the

head constable who proved the documents of Ex. D-5 to D-10 which

are the lists of cases registered against PW-9, deceased Basant and

PW-26. Chandra Kumar Barai (DW-2) has been examined to prove

that a loan of Rs. 1,23,500/- was given to PW-26 under the

guarantee of accused Manrakhan.

11.In the statement of accused Manrakhan recorded under

Section 313 of the Code of Criminal Procedure a defence has been

taken that PW-26 had borrowed some amount from him and when a

demand was made to return the same, family members of PW-26

started nurturing ill-will and ultimately implicated him in a false

case.

12.On the memorandum of accused Manrakhan Ex. P-3, one T-

shirt was seized under Ex. P-5 and crowbar under Ex. P-6. Similarly,

on the memorandum of accused Dipesh Ex. P-4, axe was seized

under Ex. P-7 and a half shirt under Ex. P-8. On the memorandum

of accused Itwari Ex. P-21, axe and bamboo piece were seized

under Ex. P-22 and one white shirt under Ex. P-23. As per the FSL

report Ex. P-54 all these articles except the shirt seized from

accused Itwari marked as “F”, contained blood. However, there is

no serological report on record to show whether the blood so

noticed was of the blood group of the deceased persons.

13.We have gone through the entire material available on record

including the evidence of the witnesses very minutely. The star

witness of the prosecution whose testimony is very crucial for

deciding the appeals is Megh Singh (PW-9) – the lodger of the

report and the so-called eyewitness to the incident. This witness in

the FIR Ex. P-10 lodged by him has stated that on the date of

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occurrence at about 2.30 AM after hearing the cries “ bachao-

bachao” he went to the terrace where the deceased persons were

sleeping and found them in the pool of blood with number of

injuries on their bodies and on being asked by him they disclosed

the assailants as accused Manrakhan and Dipesh. However, in the

statement recorded under Section 161 of the Code of Criminal

Procedure Ex. D-1 he has stated that when he was to step up the

stair, all the accused/appellants got down hurriedly and ran away.

He is further stated to have identified all of them properly.

Thereafter, he is stated to have somehow gone onto the terrace

and saw both the deceased persons lying in the pool of blood and

on seeing that he fainted and fell down. Diary statement of this

witness further says that on the arrival of his son Sanjay (PW-26) he

came to his senses and saw multiple injuries on the bodies of

deceased persons and on being asked they informed him that it is

all the accused/appellants who assaulted them. Now let us turn to

the Court statement of this witness where he becomes an

eyewitness and states that when he was to get onto the stair

leading to the terrace, he saw from the ground floor that accused

Manrakhan was carrying crowbar whereas accused Dipesh and

Itwari were holding axe in their hands. He further states that

accused Manrakhan and Dipesh were assaulting deceased Basant

whereas accused Itwari was assaulting deceased Gajanand. He

went on to state that all this he saw from the ground floor but on

account of being in fear he did not call out anyone. Nowhere in the

Court statement he has stated that any oral dying declaration was

made by either of the deceased persons as has come in the FIR

lodged by him and also the diary statement Ex. D-1. What is more

surprising here is that when this witness was confronted with the

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FIR lodged by him he has stated that the contents written in “C to C

portion thereof pertaining to hearing the cries and going to the

spot” were not disclosed to the police by him and was not aware as

to how all this came to be mentioned therein. Further, in the FIR he

has named accused Manrakhan and Dipesh alias Raja only whereas

in the diary statement and the court statement he has taken the

names of all three. On being further confronted with the FIR and

the diary statement, this witness has stated that he informed the

police to have seen accused Manrakhan carrying crowbar and

Dipesh carrying axe and assaulting deceased Basant but if they do

not find place therein he could not tell the reason for that. It is

relevant to note here that in the FIR this witness does not say that

he saw anybody assaulting the deceased or fleeing the spot but in

the diary statement he improved himself and stated that he saw

the accused/appellants fleeing the spot whereas in the Court he

becomes an eyewitness and states that he saw all the three

accused persons assaulting the two deceased. On confrontation

with the diary statement he further states that he had informed the

police that he saw the accused/appellants assaulting the two

deceased and then running away from the spot but why such

things are not mentioned therein, he could not tell the reason.

14.Deviation thus resorted to by PW-9 – the so-called solitary

eyewitness to the incident presenting different versions at different

stages renders the credibility of his testimony extremely doubtful

and being so it would be quite unsafe for this Court to base the

conviction of the accused/appellants on such piece of fragile

evidence. It is not that the conviction of an accused cannot follow

on the testimony of a single eye witness, but for doing so the Court

must be satisfied that the testimony of such witness is of sterling

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quality, wholly truthful, must appear to be natural and so

convincing that the Court has no hesitation in holding so. Dealing

with a case hinging on the testimony of a single eyewitness it has

been held by the Apex Court in the matter of Bhimapa

Chandappa Hosamani and others v. State of Karnataka

(2006) 11 SCC 323 as under:

“24.We have undertaken a very close and critical scrutiny

of the evidence of PW-1 and the other evidence on record

only with a view to assess whether the evidence of PW-1

is of such quality that a conviction for the offence of

murder can be safely rested on her sole testimony. 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.

25. So tested, we do not find the evidence of PW-1 to

be of that quality. In the first instance, she began with

inventing a false story about existence of a motive. The

narration of events as they took place before the actual

murder of her son are also shown to be untrue. There is

considerable doubt as to whether the first information was

recorded on her saying at about 8.00 or 8.30 in the

morning. Her evidence also leaves a lurking suspicion

about her being an eye witness. Having discarded the

evidence of PW-2, and the other two alleged eye

witnesses having turned hostile, we find no reliable

corroboration of her testimony. We do not find this case to

be one in which the judgment of acquittal deserved to be

set aside.

26. We, therefore, feel compelled to give to the

appellants the benefit of doubt while allowing their

appeal. Accordingly, this appeal is allowed, the appellants

are acquitted of the charge levelled against them, and

they are directed to be released unless required in

connection with any other case.”

15.Further, in the matter of Joseph v. State of Kerala (2003)

1 SCC 465 the Apex Court has dealt with an identical issue and

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held as under:

“12.In a case of this nature when there is a sole witness to

the incident his evidence has to be accepted with an

amount of caution and after testing it on the touchstone

of the evidence tendered by other witnesses or evidence

as recorded. What is urged before the Court is that FIR -

Exhibit P 1 contained signature of a doubtful character

which PW.1 himself admitted as having been different

from the one given by him on the acknowledgement of

having received the summons. How far reliance can be

placed upon his evidence when PW.1 stated that he had

rushed to the junction to inform PWs 2 to 4 and thereafter

rushed back to the place of the incident, while the

deceased also run on the western side of the place of

incident though he was profusely bleeding and he got

hold of his wound by his hand and ran. If that is so, there

would have been blood all over the place and not at one

particular point. The abrasion on the neck of PW.1 could

have been caused by a nail scratch and not by a weapon

and was not a bleeding injury will clearly believe the

statement made by him that he was profusely bleeding. If

really the witness (PW.1) was wearing blood stained

clothes the same would have been certainly seized by the

police for appropriate investigation of the same.

Particularly, when the trial court had given cogent reasons

to acquit the accused, the High Court ought not to have

interfered with the same merely because another opinion

is possible and not that the finding concluded by the trial

court was impossible.

13.To our mind, it appears that the High Court did not

follow the aforesaid standard but went on to analyse

evidence as if the material before them was given for the

first time and not in appeal. 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.”

16.In yet another case involving the credibility of the sole

eyewitness it has been held by the Apex Court in the matter of

Lallu Manjhi and another v. State of Jharkhand (2003) 2 SCC

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401 as under:

“12.There is another very material aspect of the incident

and we cannot resist observing that the investigation in

the case has been very defective. The Investigating

Officer did not prepare any site plan of the place of

occurrence. Samples of blood stained earth were not sent

for chemical examination. No effort seems to have been

made to recover and seize any weapon of offence. No

witness of the locality, who could have been present near

the place of occurrence at the time of the incident, has

been interrogated.It was the cultivation time and

agriculturists or labourers busy ploughing the fields must

have been present in neighbourhood. The witnesses

referable to neighbouring piece of land could have

deposed to as to the question and nature of possession

over the land in dispute; as to whether it was cultivated

previously and if so by whom whether the complainant

party or the accused persons. The village Patwari and

Chowkidhar would have been most material witnesses.

Their interrogation and collection of entries in revenue

papers would have revealed who was in actual possession

of the land prior to the incident. The Court is just left in

doubt guessing whether it was the complainant party in

possession of the land illegally obstructed by the accused

persons or whether the accused persons were in

possession of the land which was sought to be trespassed

upon by the deceased and his brother Mannu (PW-9) and

the attempted trespass was sought to be prevented and

preempted by the accused persons.

13. It is, therefore, clear that the genesis or the root

cause of the incident is not known.The most crucial

question as to the factum of possession over the land in

dispute immediately preceding the date of the incident

cannot be determined and any specific finding in that

regard arrived at. The version of the incident given by the

sole eyewitness who is also an interested witness on

account of his relationship with the deceased and being

inimically disposed against the accused persons is highly

exaggerated and not fully corroborated by medical

evidence. The version of the incident as given in the

Court is substantially in departure from the earlier version

as contained and available in the First Information Report.

We cannot, therefore, place reliance on the sole testimony

of Mannu (PW-9) for the purpose of recording the

conviction of all the accused persons.

14.Incidentally, it may also be stated that the manner in

which the Trial Court has recorded the statements of the

accused persons u/s 313 Cr.P.C. is far from satisfactory.

The entire prosecution case running into very many

details has been summed up into just 5 questions asked

to each of the accused persons. It is obligatory on the

part of the Trial Court to examine the accused for the

purpose of enabling the accused personally to explain any

circumstances appearing in evidence against him. If such

18

opportunity is not afforded, the incriminating pieces of

evidence available in the prosecution evidence cannot be

relied on for the purpose of recording conviction of the

accused persons.

15. All these aspects of the case, specially the

infirmities in the prosecution evidence and the

investigation, have not received the attention of the Trial

Court as also the High Court. We are very clear in our

mind that on the state of evidence available the accused

persons could not have been held guilty of the offences

charged.

16. The appeal is allowed. The judgment of the Trial

Court as also of the High Court are set aside. The accused

appellants are acquitted of the charges framed against

them. The appellants shall be released forthwith if not

required to be detained in connection with any other

offence.”

17.Further, though according to PW-26 he was informed by PW-9

that it is the accused/appellants who caused injuries to the

deceased persons but just to the contrary has been stated by PW-

12 that PW-9 did not inform him anything like that. This dis-

similarity in the statements of PW-26 and PW-12 again creates a

doubt in the mind of this Court about the involvement of the

accused/appellants in the commission of murder of two deceased.

18.Another important point so as to arrive at the proper

conclusion is the seizure of various articles including crowbar and

axe made on the basis of memoranda of the accused persons.

Though as per the FSL report Ex. P-54 all the articles except the

shirt of accused Itwari marked as “F” contained blood yet the

prosecution has not obtained the serological report to determine

whether the blood present on the seized articles was that of human

origin and of the blood group of the deceased persons. Dealing with

the opinion of the chemical examiner regarding blood stained

articles seized, it has been held by the Apex Court in the matter of

Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra

reported in (2008) 3 SCC 210 it has been held as under:

19

“The next thing which is to be seen is whether the

evidence relating to the recovery of clothes of the

appellant and the half blade, allegedly used for

commission of crime, is credible and could be relied on for

proving the charge of culpable homicide against the

appellant. In this context, it is important to note that the

prosecution did not produce any document containing the

recording of statement allegedly made by the appellant

expressing his desire to facilitate recovery of the clothes

and half blade. The prosecution case that the accused

volunteered to give information and took the police for

recovery of the clothes, half blade and purchase of

handkerchief is highly suspect. It has not been explained

as to why the appellant gave information in piecemeal on

three dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994.

Room No.45 of Ganesh Bhuvan from which the clothes are

said to have been recovered was found to be unlocked

premises which could be accessed by any one. The

prosecution could not explain as to how the room

allegedly belonging to the appellant could be without any

lock. The absence of any habitation in the room also cast

serious doubt on the genuineness and bonafides of

recovery of clothes. The recovery of half blade from the

road side beneath the wooden board in front of Ganesh

Bhuvan is also not convincing. Undisputedly, the place

from which half blade is said to have been recovered is an

open place and everybody had access to the site from

where the blade is said to have been recovered. It is,

therefore, difficult to believe the prosecution theory

regarding recovery of the half blade. The credibility of the

evidence relating to recovery is substantially dented by

the fact that even though as per the Chemical Examiners

Report the blood stains found on the shirt, pant and half

blade were those of human blood, the same could not be

linked with the blood of the deceased. Unfortunately, the

learned Additional Sessions Judge and High Court

overlooked this serious lacuna in the prosecution story

and concluded that the presence of human blood stains

on the cloths of the accused and half blade were sufficient

to link him with the murder. The over jealous efforts made

by the prosecution to link the handkerchief allegedly

found near the body of the deceased of the appellant

lends support to the argument of the learned counsel for

the appellant that the police had fabricated the case to

implicate the appellant. In his statement, PW7 Mohd. Farid

Abdul Gani, who is said to have sold the handkerchief to

the appellant, admitted that he was not selling branded

handkerchiefs and that there were no particular marks on

the goods sold by him. He, however, recognized the

handkerchief by saying that the accused made a lot of

bargaining and he was amused by the latters statement

that he will soon become an actor.”

19. Further, while deciding the credibility of the eyewitnesses and

the seizure of blood stained articles in the matter of State of M.P.

20

v. Kriparam (2003) 12 SCC 675 it has been held by the Apex

Court as under:

“8. Having heard the arguments of the learned counsel

and perused the record, we notice that the prosecution

relies on evidence of PWs. 1&3 as eye witnesses and also

on the recoveries allegedly made at the instance of the

first accused/respondent herein. Since the judgment of

the High Court is a reversing judgment we thought it

proper to scrutinise the evidence led by the prosecution

very carefully and in that process we notice that there is

sufficient force in the contention of the defence that the

presence of PWs. 1&3 at the time of incident was doubtful

and the incident in question which led to the death of the

deceased could not have been noticed by said witnesses.

This is for the following reasons:

The original case of the eye witnesses was that they were

all sleeping together when the attack in question took

place and the intention of the attackers was clear from

what was stated during the attack which was to kill all.

Thereafter during the course of evidence these witnesses

conveniently changed the said part of their evidence by

stating that PWs. 1&3 slept on the roof of the pump house

while the deceased slept on a cot under a tree. The

reason for this change, as observed by the High Court, is

obvious because if they were sleeping together and the

intention of the accused as proclaimed was to kill all these

three then there would have been no occasions for these

witnesses to escape the attack. Therefore, obviously they

had to find an explanation and for this purpose they made

the later statement that the deceased and the two eye

witnesses were sleeping separately. Apart from this,

these witnesses have stated that immediately on seeing

the attack on the deceased they ran away and hid

themselves until next day morning being afraid of the

assailants. But then there is so much contradiction in

regard to the direction and the place the witnesses ran

away that it creates a suspicion as to their presence. PW1

says that he ran in the direction of river while PW2 says

he ran in the direction of the hill which according to the

defence are in opposite directions. This apart, assuming

they did hid themselves, there is absolutely no

explanation why these witnesses till about 8 O' clock in

the morning did not try to seek any help from sources

available to them. It has come in evidence that near

about thrashing yard of PW-4 where the incident took

place, there were other thrashing yards where people

were sleeping, therefore, they could have easily sought

help from them which was not done. Then again we

notice that the incident in question has taken place in the

month of April, and being summer month, we can take

judicial notice of the fact which has been done by the

courts below that the sun rise would have been around 6

O' clock in the morning. If that be so we find no

explanation whatosever why these witnesses did not go to

their house or contact anybody upto 8 O' clock in the

21

morning to inform them of the incident in question. This

act of PWs. 1&3 in informing the relatives and the

villagers of the attack only at 8 O'clock in the morning

was obviously to explain the delay in filing the FIR, which

was lodged in the police stated which was about 3 K.ms.

away from the place of incident only at 8.15 O'clock in the

morning. Here again in regard to the lodging the

complaint there is direct contradiction in evidence of PWs

1 & 3. While one of the witnesses states they went

straight from the place of incident to the police station,

the other states they went to the village first to inform the

relatives and then went to the police station. If the

evidence of these eye witnesses were otherwise

believable for good reasons some of the contradictions

referred to hereinabove by us might not have damaged

the veracity of their evidence. But in the back ground of

the defence as to the falsity of PWs. presence, the

existence of these contradictions makes a lot of

difference, more so when the prosecution has failed to

explain the delay in filing the complaint. This is because

of the fact that according to the defence the incident in

question must have taken place without their being eye

witnesses, and when noticed in the morning a complaint

was lodged after due deliberation involving these accused

persons.

9. As noticed above the prosecution has also relied on

certain recoveries made at the instance of A-1. Firstly it is

stated that the blood stained clothes worn by the accused

at the time of arrest were seized by the police. In regard

to the place from where these were seized, there is

contradiction as to whether it was taken off from the

person of A-1 or was taken from a place where the clothes

were kept in his house. Be that it may the prosecution

case is that these clothes were blood stained though

washed, still the stains were visible hence was sent to

chemical examination which has established the stains

were of blood. Therefore the same was sent to Serologist

who opined that he could not give an opinion as to the

origin of the blood meaning thereby the blood stain that

was noticed by him on the clothes cannot be said to be

that of human origin. In such situation this circumstance

of recovery of blood stained clothes will be of no

assistance to the prosecution.

10. Similar is the case in regard to recovery of an axe. In

regard to this, witnesses for the recovery say they found

small stain of blood on it. The serologist in regard to this

blood also states that it is not possible to find out the

origin of the same. Therefore, even this recovery would

not in any manner help the prosecution in this case. Even

otherwise if the prosecution case in regard to Pws. 1& 3

are not acceptable then these recoveries by themselves

would not take the prosecution case any further.”

20.As regards motive that prior to the incident a report was

22

lodged by deceased Basant Kurre against accused Dipesh for

threatening him and further that as accused Manrakhan had

demanded back the money given to PW-26 ill-will crept in between

driving the accused persons committing the crime in question, this

Court is of the opinion that when the basic foundation of the

prosecution case itself has crumbled down, the motive becomes

inconsequential and such a plea is of no help to the prosecution

case. In a matter having similar issue, it has been held by the Apex

Court in the matter of State of Punjab v. Sucha Singh and

others (2003) 3 SCC 153 as under:

“7. A perusal of the statements of PWs 4 and 5, coupled

with the testimony of other witnesses and facts and

circumstances of the case, shows that the presence of

PWs 4 and 5 at the place of occurrence is inherently

improbable for the following reasons:-

PW-5 has admitted in his cross-examination that he

owned no land in village Lawan. If that is so, he has no

reason to be there at the place of occurrence, that too, at

6.45 in the morning. PW-4 has stated that the distance

between his land and the land of PW-5 is about two killas.

Assuming this statement is accepted, in normal

circumstances, no one would travel from a distance of two

killas, that too, at 6.45 a.m. to meet a friend without a

purpose. The prosecution has not been able to establish

the circumstances leading PW-4 going to the field of PW-5

at that time. From the evidence on record it appears that

the deceased travelled on a scooter to Chogawan village

for purchase of medicines for his mother all of a sudden.

Even PW-4, father of the deceased did not know about the

illness of his wife, which led him to inquire from his son as

to where he was going. If the father of the deceased

himself did not know the programme of the deceased

going to Chogawan village in advance it is inherently

improbable that the accused would know his programme,

way-lay and attack him armed with kirpan, gandasi , datar

etc. It is in the evidence of both PWs 4 and 5 that the

accused emerged from the Basmati crop fields and

attacked the deceased. The evidence on record shows

that in the murder case of Kuldip Singh nephew of Sucha

Singh where PW4 was also one of the accused, were

acquitted by the High Court.If hat could be the motive

to nurse a grudge against the complainant party, the

accused would not have spared PW-4. It is also humanly

improbable that the deceased sustained as many as 24

injuries on his body and the father of the deceased would

be a mere spectator without trying to rescue him or

intervene. The evidence on record would also show that

the house of the accused is 6/7 killas towards the west of

23

the village Abadi and the place of occurrence was at a

distance of half a kilometer on the eastern side of the

village Abadi. In ordinary circumstances, it is difficult to

accept that the accused would be loitering around the

place of occurrence covering a distance of 6/7 killas

armed with kirpan, gandasi, datar etc.PW-5 did not

accompany the injured to the hospital. No explanation by

the prosecution as to why he could not accompany the

injured to the hospital. The conduct of PW-5 is quite

unnatural. This would make the presence of PW5 at the

place of occurrence all the more doubtful.In our view,

these circumstances would make the alleged presence of

PW4 and PW5 at the place of occurrence inherently

improbable.

11. Mr. Walia, learned counsel, lastly contended that

there is a strong motive connecting the accused with the

crime for the reasons being that Kuldip Singh, nephew of

accused Sucha Singh was murdered by the complainant

party and the accused had nursed a grudge against the

complainant party for revenge. This plea is of no help to

the prosecution case. When the basic foundation of the

prosecution case crumbled down, the motive becomes

inconsequential. At the same time, animosity is a double-

edged sword. It could be a ground for false implication, it

could also be a ground for assault. In the instant case, in

view of the facts and circumstances as discussed above,

the motive, however, strong merely creates a suspicion.

Suspicion cannot take the place of proof of guilt.”

21.Having thus considered entire material collected by the

prosecution and the evidence of the witnesses, in particular the

lodger of FIR (PW-9) in the light of the decisions of the Supreme

Court adumbrated above, this Court has no hesitation to say that

the prosecution has not proved its case beyond all reasonable

doubts. The sole important witness (PW-9) who could have played a

decisive role in the case of the prosecution has lost his credibility

on account of resorting to different stands at different stages. He

has not even named accused Itwari in the report lodged by him.

His version that from the bottom of the staircase he saw the assault

opened by the accused persons also gets falsified because the

Patwari who prepared the spot map has categorically stated that a

person standing on the ground floor cannot see the things going on

over the terrace. Even the seizure of blood stained articles has not

24

been duly proved with the help of serological report whether the

blood was of human origin or of the blood group of the deceased

persons. PWs - 26 and 12 – the sons of PW-9 are also contradictory

to each other. In this view of the matter, the findings recorded by

the Court below convicting the accused/appellants under Section

302/34 IPC twice are not based on proper appreciation of the

evidence and therefore, they are liable to be set aside.

22.In the result, the appeals are hereby allowed, judgment

impugned is set aside and the accused/appellants are hereby

acquitted of the charge levelled against them. Accused/appellants

Manrakhan and Dipesh alias Raja are in jail and therefore they are

directed to be set free forthwith if not required in any other case.

Accused/appellant Itwari is however reported to be on bail and

therefore his bail bonds stand discharged.

Sd/- Sd/-

(Pritinker Diwaker) (RP Sharma)

Judge Judge

jyotishi