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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 390 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