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CASE NO.: Appeal (crl.)  722 of 2001

PETITIONER: State of Rajasthan

RESPONDENT: Om Prakash

DATE OF JUDGMENT: 13/06/2007

BENCH: Dr. ARIJIT PASAYAT & B.P. SINGH

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      State of Rajasthan is in appeal against the judgment of  Rajasthan High Court at Jodhpur.  Respondent faced trial for  alleged commission of offence punishable under Section under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)  and sentence of imprisonment for life by learned Additional  Sessions Judge Nagaur.  Accused filed an appeal questioning  his conviction and sentence imposed.  The High Court by the  impugned judgment allowed the appeal.

2.      Background facts in a nutshell are as follows:         First Information Report was lodged in the Police Station,  Khinvsar on 14.5.1992 by one Nenuram, stating that at about  11.00 a.m., on that day, he heard that accused Om Prakash  has killed Shivpyari, his wife (hereinafter referred to as the  ’deceased’), due to old quarrel. The investigation was  conducted. The accused was arrested and the prosecution  commenced. The prosecution examined 22 witnesses during  the trial to prove its case alongwith certain documents which  were duly proved. On appreciation of the oral and  documentary evidence, the learned Additional Sessions Judge  came to the conclusion that the accused had committed  murder punishable under Section 302 IPC and, therefore,  proceeded to punish him to suffer imprisonment for life as  aforesaid.  

3.      Trial Court placed reliance on the evidence of Om  Prakash-PW-1 and found his evidence to be cogent and clear  and recorded conviction and sentence as indicated above.  

4.      An appeal was filed before the High Court. Stand of the  appellant was that the order of conviction is unsustainable in  law as conclusion of guilt is not supported by the evidence on  record. The entire conviction is rested upon the sole testimony  of an interested witness, who is younger brother of the  deceased Shivpyari and the corroboration which is sought to  be used for supporting the testimony of PW 1 Om Prakash is  the recovery of blood stained knife and clothes at the instance  of the accused. The delay caused in lodging the First  Information Report was not satisfactorily explained. The  explanation for the so-called delay does not over rule out the  possibility of concoction of the entire case against the accused,  the investigation is very faulty and the evidence, as is accepted  by the learned trial Judge, is not sufficient to safely convict the

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accused of murder. The evidence admits of reasonable  explanation which can exclude the participation of the  accused and in such circumstances, conviction on such  evidence is not legal and proper. Police visited the scene of  occurrence immediately on the receipt of the First Information  Report and had seen the premises. The accused was arrested  thereafter and then, it is alleged that at his instance, the blood  stained knife and clothes were recovered. Possibility of  planation of these articles cannot be over ruled. The  Investigating Officer has committed a blunder in not  connecting the knife to the accused. Assuming that the knife  and clothes were discovered at the instance of the accused,  mere discovery is not enough, unless the knife, connected to  the accused, is shown to have been used by him. The police  could have ascertained the finger prints from the knife and  could have either proved or excluded use of the knife by the  accused. Failure on the part of the prosecution is a serious  lacuna, which raises a reasonable doubt regarding  involvement of the accused and, therefore, the evidence, as is  accepted, is grossly in-sufficient for sustaining the order of  conviction.

5.       However, the primary stand was that on the basis of a  solitary witnesses’ evidence, conviction cannot be recorded;  more particularly, when he is related to the deceased.  The  High Court accepted the plea and held that in case of solitary  witness, and when he is related to the deceased, corroboration  is a must.  

6.      In support of the appeal, learned counsel for the State  submitted that the evidence of PW-1 clearly established the  commission of offence by the respondent.  There is no reason  why he would depose falsely against his brother in law after  his sister has lost her life.   The decisions referred to by the  High Court do not lay down any proposition of law to the effect  that on the basis of solitary witnesses’ evidence conviction  cannot be recorded and also that relatives’ evidence needs  corroboration. Accused has not explained as to what he was  doing if he was present in the house after the occurrence.  He  did not prefer to file any report with the police.  His conduct is  also relevant.

7.      Learned counsel for the respondent on the other hand  submitted that though the reasoning of the High Court is not  elaborate, but the conclusion is correct.  According to him, the  corroboration was necessary because of contradictions in the  version of PW 10, his conduct in not lodging the FIR,  improvements made during the evidence and his presence  having not been established by any acceptable evidence.  Finally it is submitted that motive was not established.  The  High Court relied on the decision in Anil Phukan v. State of  Assam (1993 (3) SCC 282) to hold that corroboration was  necessary because it was a case of single witness supporting  the prosecution version and the witnesses’ relationship.  

8.      The High Court seems to have misread this Court’s  observation.  The relevant observations read as follows:

"Conviction can be based on the testimony of a  single eye-witness and there is no rule of law  or evidence which says to the contrary  provided the sole witness passes the test of  reliability.  So long as the single eyewitness is  wholly reliable witness the courts have no  difficulty in basing conviction on his testimony

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alone.  However, where the single eyewitness is  not found to be a wholly reliable witness, in  the scene 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." 9.      Again in the same decision it was noted as follows:

"Mere relationship of the witness with  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 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, court should look for some  independent corroboration of his testimony to  decide about the involvement of the other  accused in the crime."

10.     In the instant case the evidence of PW-1 was not shaken  in spite of incisive cross examination.  The High Court seems  to have taken exception to the credibility of his evidence on the  ground that he had graphically described his movements with  the accused and deceased.  It is not clear as to how that can  be the ground to discard his evidence.  He has only described  the movements during the relevant period of time from one  place to another. For that it was not necessary to have  photogenic memory as the High Court seems to have inferred.  On the contrary these were mere description of the places  which at the relevant time the PW-1 visited in the company of  the accused and the deceased.   

11.     At this juncture it is to be noted that though learned  counsel for the respondent tried to highlight certain   improvements in the version of the witness it is not of  consequence.  Irrelevant details which do in any way corrode  the credibility of a witness cannot be levelled as omissions or  contradictions.  Interestingly in the cross examination of PW-1  the following suggestions was given to the witnesses:

"Today I do not remember whether the  accused had inflicted the said katari  obliquely or straight."

12.       The essence of the question appears to be that though  the accused had given the katari blow, the witness did not  remember whether it was inflicted obliquely or straight.  This  by itself may not be sufficient to fasten the guilt on the  accused, but this is certainly a relevant factor.  Additionally  the conduct of the accused was highly suspicious. If he  subsequently came to the house after the incident, he has not  explained as to why he did not lodge any report with the  police.  That would have been his normal conduct, considering  the fact that undisputedly the deceased breathed her last in  the house itself.  The effect  of the unnatural conduct of the

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accused in strengthening the prosecution version has been  highlighted by this Court in State of Karnataka v. K.  Gopalakrishna [2005 (9) SCC 291.  

13.     Looked at from any angle the High Court’s order is  indefensible and is set aside.  Acquittal as recorded by the  High Court is set aside and conviction and sentence as  recorded by the trial court stand restored.

14.     The appeal is allowed.