By tiiis st.aiidai'd, when tlie prosecution case rests mairily on vs Stcste

Present: Mr. H.S. Ahluwalla, Advocate for the Appellaiits. Mr/S.K. Mishra, Paiiel Lai^/er for fhe State. JUDGEMENT (Passed on 25th day ofJuly, 2013J The followuig judgement of the Coui-t was dictated on boai'd by SiSBil Kiass&ar Sisaisa^ J. Thls appeal is directed agaiust flie judgment dated 6U ofAugust, 1997 passed in Sessions Trial No. 177 of 1995 by 6 Additional Sessions Judge, Bilaspur. By ti-ie mipugned judgment, tlie appeHaiits have been 2. convicted uiider Section 302 ofludiari Penal Code (IPC) aiid sentenced to undergo miprivsoruiieut for life. ^sx%^ 1 '^^ —•2.- 3, The facts, briefly stated are as under:-

3.1. Appellaiits Melaraiu aiid Selaraiu are real brothers, They ai~e sons of Aiitooraru. Antooraiu was also aii accused iu this case. However, he died during peudency of the Sessions Tdal^ tlierefore, flie trial was couducted agakist tlie two appellaiits orjly. The case of the prosecutlou is tliat iii the intei-vening night ot' 10&i & llfe of February, 1994, the appellants-accused had assaulted the deceased (Bali-u-am) m tlieii' house. The iucideut was witnessed by front. of ^. Chaiiderbal (PVv-4). On 11-2-1994, tlie dead body of tiie deceased was found near Uie Tank wliich was at a distaiice uf 924 feet fioiu tlie house of the accused persous. Merg Intimafclon (Ex. P/20) was lodged. The invcstigatmg officer reachcd to fhe viHage^ gave notlce to the Panchcis aad prepai~'ed uiquest (Ex.P/1) on the dead body of flxe deceased- The deceased. has iiijuTies. sustalned miiltlple serious Therefore, Dehatl Nallshl (Ex.P/21) -was recorded. The proceediiigs ofMerg was conducted on 11-2-1994 aiid Dehatl. Naushi (Ex.P/21) was r-ecorded on 12-2-1994, based o4 wl-iich FIR (Ex.P/13) was recorded. TU1 14.2.1994, the Polic^ could not ti'ace the assallaiits. Case dlaiy statement o^ ^ Chaiiderbai (PVvr-4) was i-ecorded on 14-02-1994 uncle^ Iiui Section 161 of tlie Code of Crimiual Procedure (Cr.P.C.). her dlaiy statement, she disclosed that she had seen th^ accused persons a-ssaultlng fhe deceased lu frout of thei house. Therealter, the appellaiu.s were taken into custod^ aiid tlieir discovei'y st.atcments (Ex. P/2 8& P/7) were recorded uuder Section 27 of t.he Evideuce Act and crowuar aiid laUli etc,, were selzed at theu instance. The seized ai'tlcles weip seut for chenilcal exaiTiuiation to Foreusic Scleuce Laboratoity (Ex. P/29) was receive^. (FSL)^ Bilaspur aiid a report Accordmg to tiie FSL repoit, blood staJiis were fouiid oh ..€"y^ .-/:"^^ "^ %i x •^v^A^" '"^lM^"" -3- vai-ious seized ai-ticles belonguig to fhe deceased mciudlugl one latlii seized at fhe Mistaiice of the appeUant-Selai'aiTi,,! However, no ulood staiiis were fomid on tlie crowbai'.

3.2. PostiTiortem leport of tlie deceased reveals fliat it was a| homicidal deafh,

3.3 The case of tlie prosecution was based on tlie solitai^ evideace of Chaiiderbai (PVv-4). Learned Sessions Judg^ relled on tiie testiiiiony of Chaiider-bai (PW-4) aiid convicted mid sentenced tlie appellaiits as above. Hence, the appeal.

4. Mi\ K.S. Aliluwalia, learned counsel appearing for thd appellaiits has ai'gued that solitary testlmony oj Chaaderbai (PW~4) was uot reliable. She did not disclose about the Incident to aiiy one for about 4 days. Even m hei,;- Court evldence^ she cleai~iy deposed hi her exaiuiuatlou-iii} chief tiiat she had not seen the appellaiits. Therefore, conviction based on tiie solitaiy testkuony of Chaiiderbai caiuiot be sustaiued. ^

5. On tlie otlier haiid, Ivlr. S.K. Mislipa, leai'-ned Paiiel La^-er appeai'-iiig for tiie State has opposed fliese at-guiiients aiid supported tiie judgment passed by the Sessions Coui't.

6. VvTe have heard counsel for flie pai'ties.

7. Iii Jaseph Vs. Stcite of Kerala (2GOS/ 1 SCC 465, il was held that when there is a sole witiiess to fhe mcident his evidence has to be accepted with aii aiTiount of caution aiid after testiiig it ou the touclistone of tlie evidence tendered by other wituesses or evideiice as on record, Sectlon 134 of tlie ludiaii Evidence Act provides tiiat no pai'ticulaT uuiTiber of wlfcuesses shall iu any case be requlred for the pi-oof of any fact aiid, therefore, 11 is permissible for a comt to r-ecord aiid i '^'-.^&i-^. '..\ ^ ':'^isa^< ^ -.\ .'if ;':1 k..;^ 't^W^^'/^ -t-1- sustalu a convictlou on fhe evidence of a solitaiy eye-witiies^. But, at the saiue tlme, such a coui'se cau be adopted ouly if the evldeuce teudered by such wltiiess is cogeut^ reliable an(|i in tune wltli probaljlliti.es and inspii'es iiiipllcit coufkience. By tiiis st.aiidai'd, when tlie prosecution case rests mairily on the sole testimony of aii eye-witness, it should be whoUy reliable.

8. Iii Gwnndurc^u aixas Gwnnda. Vs. Stcste SrirusjtptgTUsm P^lice Stestibn and unoth^r^ reporled iiji (2012) 4 SCC 722, lt was held tiiat tlie evldence of solltai-i eye-witiiess havS to be accepted wltli caution aiid after testiu^ it cn touchstone of evidence teudered by otiiei' witnesses o|i evidence otherwlse recorded aiid such evidence mu^t esseutially fit iiito cliain of eveuts that is stated by th|: prosecutioa, occuiTence shoLild not be doubtfal. Presence of such witness at if evidence of so|€ the tlme c|f G witness 1s m corulict with other witaesses, it caiinot be fouiidation of couvictlon of accused.

9. Now, we shall exai-mne tiie testiiiiony of Climiderb^i (PW/4).

10. Chaiider-bai was the next door neighboui- of tl^e appellaiits. She deposed that ui tiie fateful ulght, deceased was assaulted by Uie appellaiits, who fell down ait^r the assault. She heai-d in the mght that tl-ie deceased hald died. Later ou, in pai~a 2 of her exaiTmiatiou-in-chief, s4e deposed iii cleai- words tliat she had not seen the accus^d persons assaulting tiie deceased. She had sliii.ply heai-d tli^t the deceased was abusing aiid on heai-ing tlie abuse, slie caiue to her liouse, She agaui said tliat she had seen tlte incident from her house. However, in the next Ime, she again repeated tiiat she had aot seen marpeet Leai-ned Sessions Judge has held thafc the overall evideuce of Chanderbal, —jT- the solitaiy eye-wlu.iess was dependable ai-id it was supported by the evldence of Salior-aii {PW/3}.

11. Salioraii (PW/3) ha.s deposed tliat in tlie fateful night he had seen tliat tiie deceased was abusiiig the appellaiits In front of fheir house. He had kicked on tlie door of the house of the appellaats, he did llke tliat twice or tlu'ice. Thereafter, when he had again klcked on the door of the appellaiits, he was faken inside the house. After tliis, he had gorie to heai' If Ramayaii. Tliis is the entire evidence of Sohai'aii (PW/3). the evidence of Sohai'aa is held to be ti"ae, tiieu tiie uicident of actual assault must have takeu place mside the house of the appellaiits. Wher-eas, accordiiig to solitaiy eye-wltness Chaiiderbai she had allegedly seen the appeUaats assaultuig the deceased in front of their- house. Therefor-e, version of Chaadeibal (PVv/4) was uot conoborated by tiie evidence of Saliorai-i (PW/3).

12. The luvestlgatiiig Ofilcer had reached to the vlllage on 11-02-1994 aad proceediiigs ofhiquest (Ex. P-1) were drawil Ou flie uext. day i.e. on 12-02-1994, he recorded Dehatii Nalishl (P-21) m ti-ie -v-Ulage itself. uot meution tlie naiue of tlie assallaats of the deceased. Ke In Dehati Nallshi, he did simply uientioued tiiat as Uie deceased has received multipl^ serious iujuries, therefore, it was a case of homicidal deatlji aiid somebody had assauited the deceased. The naiue of tlic appellaats coiue for the flrst tiuie iii flie diary stateuieut of Chai-idei-bai (PW-4) wliich was recorded on 14-02-199^. Chaiiderual has not given aiiy i'eason as to why she did uo|t disclose tiie incident to anyone for about five days< Even th^ fainUy mcflibers of the deceasecl have not been mformecl fl-ialt the doceased was assaulted by tiie appellaiits. Admittedl^, the police was present m tiie viUage siiice 11-02-1994J. Tlierefore^ iu nonual clrcumstances Chaaderbal would havp disclosed tliese facts to flie pullce on some eaiiier occasiou L ($) prior to 14-02-1994, above hiorduiate delay ui disclosure of the iiaiues of tlie In abseuce of any explanatk)n .fbr the assailai-its by tlie solitaiy eye-witness to fhe pollce creates a doubt on her testimony* ¥/eai-e of the view tiiat the leaiTied Sessions Judge was not justiiled in believing the testiruony of Chaiiderbai (PW-4), who canie as aii eye-witiiess after five days aiid dlsclosed flie nai-ues of the appellaiits aiid who also chaiiged her versiou at difierent stages ofher evidence,

13. For tlie foregoing reasous, we are uiiable to sustaiu tlie coiTviction of tiie appellaiits ou fhe solitaiy evidence of Chaiiderbai (PW-4).

14. For tlie foregoiug reasoiis^ the appeal is allowecl. Tue coiTviction aiid seuteuces awai'ded to tlie appellaats tuider Sectlon 302 IPC ai-e set-aside. The appellaiits ai-e acquitted of the chai-ges fraiiied agahist them. It 1s stated Uiat appellaiits ai'e on bau, Their ball bonds shall contlnue for a period of six months iii view of Section 437-A of Cr.P.C. Sd/- Sunil Kumar Sinha Judge Sd/- R.N. Chandrakar Judge Kvr