SURESH THAPA v. THE STATE OF WEST BENGAL

conviction was affirmed by the High Court of judicature at Bombay, Nagpur bench against which the appeals were preferred before the Supreme Court and it was held that if the evidence of a sole witness is found to be reliable, then only conviction could be maintained and equally, even in a case of a sole witness the conviction could be maintained. If the evidence of such a witness is of sterling quality. But when evidence of such witness is found to be doubtful, the court should always seek for some corporation. The Court took note of the decision of Vedivelu Thevar vs state of Madras where the law of evidence was discussed forbidding conviction is on the testimony of a single witness. The section shrines the well recognized maxim that evidence has to be weighed and not counted. It was observed that the matter does depend upon the circumstances of each case, and the quality of the evidence of the single witness, whose testimony has to be either accepted or rejected, and if such testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. The appeal was allowed and the order of the Appellate court was set aside by the Supreme Court holding that the High Court was not justified in resting the conviction solely on the basis of the evidence of the witness, whose evidence was partly, reliable and partly unreliable.

#13. In the case of Raja Khan (Supra) the question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused. In that case from evidence. It came that the witness who recovered the article deposed that upon instruction from the police such recovery was made and those were also seized upon instruction from the police and the statement was found corroborated by the statement of another witness. The Hon‟ble Supreme Court discussed Section 27 of the Indian Evidence Act presently where it was held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate . The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation .Mere statement that the accused led the police and the witnesses to that place where he had concealed the articles is not indicative of the information given. From the evidence of the I.O.by the I.O for police remand , as per statement made by the accused during interrogation he was taken to the concerned place and the accused took out the sabol ,the offending weapon beside the drain adjacent to his house in presence of witnesses and it was seized where the accused also signed. The seizure list was proved and marked with Exhibit 9 but none of the seizure list witnesses were examined. In a recent decision of the Supreme Court reported in, Ram Singh versus State of UP6 observed that non-recovery of the weapon of the offence would not discredit the case of the prosecution subject to other convincing evidence.

#14. In the case of Ompal versus State of UP7, where the Hon‟ble Supreme Court revisited important questions of weather, procedural lapse like delay in FIR and non-recovery of weapons could undermine a murder conviction when supported by credible witnesses and medical evidence. The said case was not based on circumstantial evidence as there was eye witness. It was held that as per settled provision of law, the testimony of an injured witness is recorded a special status in law and being a stamped witness, his presence cannot be doubted. It was also held that motive, although is a relevant factor in all criminal cases, it, however, is not a sine qua non for establishing the guilt of the accused persons. Motive, even in a case which rests on an eye witness account, lens strength to the prosecution case and 6 2024 INSC 128 7 2025 INSC 1262 fortify the court in its ultimate conclusion. Thus, the fact of motive has to be seen in the light of other cogent evidence available. The other point raised in that case was non-recovery with the weapon and it was observed by the Hon‟ble Supreme Court that many and many times, the Supreme Court has reiterated that non-recovery of the weapons cannot be considered fatal to the case of prosecution if there is consistent, medical and ocular evidence. In this case, the eye witness being the son, P.W.3, Raja Vishwakarma deposed that on November 14, 22, Suresh Thapa had hit on the forehead of his father with iron rod when he was present there and saw the incident. His father was going to her sister‟s house and on the way Suresh met his father and started abusing him in filthy languages and returned to home and stated to his mother that Suresh Thapa had abused him calling name of father and mother. After that his father left the house in anger and this time, he followed his father when accused hit his father on his forehead with a iron rod. Then says at first, he assaulted his father with fist and blows, and then hit with iron rod. When the accused was assaulting his father with fist and blows, he tried to save his father. He and Manoj Chhetri rescued his father and took him to Anand Lok Hospital. He also said that Manoj was also present at a very little distance from the P.O. During his cross examination, he said that his father was going to her sister„s house which was situated at Eastern bypass, Forrestal guest house. His father left house at 2:30 PM and returned at 3 PM and again he left and the incident took place between three and 3:30 P.M. They shifted his father in a vehicle which was of Buddha.

#15. The daughter of the deceased that is P.W.4 said that her mother called her in between three and 3:30 P.M. and she reached to Anand Lok Hospital where she found Manoj Chhetri, Raja Vishwakarma present at Anand Lok Hospital. Manoj Chhetri deposed as P.W.7 who said that the deceased died on 19th of November, 2022. He gives statement before the magistrate which proved as exhibit 3. On careful Perusal of the examination of the accused person made under Section 313 of the Code of Criminal Procedure a different story was found narrated by him. The accused deposed that on the relevant day the deceased was drunk and he was abusing the accused with filthy languages and then he returned to his house. On hearing hue and cry he came out from his room, and the deceased hit him on his face and Raja, the son hit him with the rod, and since he sat down, the rod hit the deceased. He also said that both deceased and Raja came to his house to kill him. He denied that Manoj Chhetri was present at the spot. However though he said that he wanted to adduce evidence, no defence witness was cited. As per the sketch map prepared by the I.O, the PO is situated in front of the house of accused Suresh Thapa and adjacent to the PO the house of Anthony Rai and Uttam Rai‟s grocery shop are noted. The P.O. is on the Kacha Road, Ramchandra Basti Prakash Nagar. Uttam Rai and Anthony Rai deposed a P.W.2 and P.W. 5 respectively but are of not much help since they only said that he heard a quarrel between Bhavesh and Suresh Vishwakarma. P.W. 6 Som Bahadur who was cited as witness said the death of death as 14th November 2022 and he was informed by Raja about the assault buy the accused on the head of his father .This witness was never examined. By the I.O and stated those facts for the first time before the Court.

#16. On careful scanning of the entire evidence, the dispute between the deceased and Suresh Thapa, and an altercation on the relevant day is found to be admitted and the same is also found from the examination of the accused person. According to the P.W. 1 Raja followed his father and evidence of the P.W.1, the de-facto complainant, and Raja the son of the deceased, coupled with the evidence of Buddha Tamang, P.W. 12 are clubbed together and the nature of injury sustained by the deceased as found from the postmortem report are compared their remains no room to doubt that the deceased sustained the injury over his forehead and died due to effect of such injuries . The question remains who was the assailant. The glaring discrepancies found from the testimonies of the de facto complainant the wife, the eye witnesses being the son along with some other witnesses regarding the different date of death which has created serious cloud about the veracity of their statement and also reliability on the same. P.W.9, Karan Vishwakarma who is the nephew of the deceased said that he, Raja Vishwakarma, the victim since deceased and Manoj Chhetri, along with Suresh Thapa were all present at Limbu Basti near the house of Suresh Thapa when Suresh and Bhabesh were talking and Suresh went to his house, brought out an iron rod and hit Bhavesh as a result Bhabesh fell down. This witness, Raja Vishwakarma and Manoj Chhetri shifted Bhavesh to Anandalok Hospital where he died on 19th of November 2022. This witness was never examined by the I.O and for the first time deposed before the Court and there is no evidentiary value to his evidence and cannot be accepted. From the evidence of Raja or Monoj Chhetri presence of Karan are not found. Manoj also did not say that he was present at the spot but relied upon his statement given before the Magistrate. Both the statement of Raja and Manoj Chhetri recorded their statement on 28/12/22 that is almost 10 days after the date of death of the victim, before the Magistrate. No explanation has come as to why they took so long time to record their statement before the Learned Magistrate.

#17. In this case the glaring discrepancies found from the evidence of the Doctor of Anandalok Hospital P.W. 10 who said that on 2611.23 when he was working with Anadalok Hospital he examined the dead body and prepared the report marked with exhibit 5 on that date. In that report it was noted that the injured died on 19.11.22. After comparing with the exhibited document it is detected that the date 26.11.23 was incorrectly typed in place of 26.11.22. Then also a doctor on examining a patient preparing an injury report when that patient died about 7days ago and the post mortem of that body took place on 20.12.22, is something unheard of more so when the patient was never admitted under this doctor. Interestingly the doctor said specifically that he examined the patient so this statement coming from a doctor attached with a reputed Nursing Home goes to show the ground reality of the medical system prevailing . The doctor in his cross examination also admitted that he issued the report on 26.11.22 and the patient expired on 19.11.22. The witness prepared such report consciously as can be found from his deposition when he denied the suggestion that he prepared the Report mechanically. It glaringly manifests the nature of investigation conducted as the I.O. who either mechanically collected the report or did it with mala fide intention in order to mislead the court and for vested interest. It also unearths the affairs of the administration of the private hospital and the ground realities prevailing. The Learned Court also in absence of any seizure list to seize the paper from the Nurshing home admitted and marked the document as exhibit and also put reliance on the same while passing the order of conviction. The narration of the witness Buddha Tamang gives a totally new story when his vehicle was stopped and the accused banged on the bonnet of the car and or the deceased and Raja were taken by him in his car to the house of the daughter of the deceased and also the scuffling he watched through his mirror. The son of the deceased Raja never said he and his father was taken by the car of Buddha or anything happened like that. In view of severe inconsistencies the evidence loses its credentials and cannot be relied upon for corroborating the evidence of the eye witness.

#18. In this case, before the learned Trial Court, the learned defence counsel relied upon a photocopy of a formal F.I.R lodged by the appellant before Bhakti Nagar Police Station on 14 November 2022 against the deceased Bhavesh Vishwakarma and Raja Vishwakarma in respect of an incident dated 14 November 2022 at 14 hours to 14:45 hours. The FIR was lodged on

19.05 hours but no copy of written complaint was produced before the Court. That apart the learned Court noted that the incident as alleged there was of at 2 to3:45 hours when the present F.I.R was lodged at 18:45 hours in respect of an incident of 15 hours to 15:30 hours. From the FIR no., also, it can be seen that the complaint lodged by the de-facto complainant was Bhakti Nagar P.S case no. 1237 of 2022, when the other F.I.R was of 1238/2022 but I.O did not say anything about the progress of such F.I.R. The learned Court was of the view that this exhibit A and the present complaint was not originated in respect of self incident. Even if that analysis is accepted for not consideration of the subsequent F.I.R, it establishes that at the place of occurrence there was an incident between the present appellant and the deceased. Since the written complaint was not produced before the court the nature of incident cannot be ascertained.

#19. The learned Court also was of the view that there are a lot of latches in the prosecution case and the role of the I.O was not satisfactory as he did not collect blood stained wearing of the deceased and also not collected the blood stain earth from the P.O. but despite all the flaws on the part of Investigating Officer, prosecution case stands proved beyond reasonable doubt by the evidence of the witnesses being P.W.3 and P.W.7. The further point raised that P.W.3 is the interested witness and hence his evidence cannot be relied upon, but the learned court was also of the view that it is not the principle of law that Court shall discard the evidence of a relative witness. This Court do concur such observation but with the rider that the evidence of said eye witness must be clinching enough to inspire confidence. The cumulative evidences of the witnesses being the family members and neighbors with the glaring inconsistencies , the doctor of Anadalok Hospital and his injury report prepared after 7 days from the date of death, absence of seizure memo in collecting the medical papers from the hospitals, and procedural lapses in recovery of offending weapon ,the process of investigation is certainly not the one where it been proven beyond the shadow of all reasonable doubt .In fact from the photocopy of Anandalok Hospital which was not proved and marked with X for identification, the history of intake of alcohol by the patient can be found which corroborates the version of accused/appellant that the deceased was drunk at that point of time. This fact was never mentioned either in the F.I.R or by many of the witnesses. The admitted fact of the prevailing dispute and an altercation between the victim and the accused coupled with his inebriated condition along with the lodging of the F.I.R by the accused and the inconsistencies in the evidence of the son, the alleged eye witness makes it highly probable that there is a different version of the story. It is a settled law that enmity is a double edged weapon, on one hand it provides motive, on the other hand it also does not rule out the possibility of false implication.

#20. This is a case where the evidence of the eye witness and the de-facto complainant was partly reliable and partly unreliable and according to the decision of Vedivelu Thevar vs State of Madras8 the in such situation conviction cannot be maintained on the basis of such evidence and the court 8 1957 SCC Online SC 13 must look for further corroboration .In this case no such corroborations can be found excepting that the death occurred due a physical assault with a deadly weapon as it tallies with the injury sustained by the deceased but the prosecution has failed to establish that the death was due to the physical assault made by the accused .In criminal jurisprudence a well established principle that unless the charges are proved giants the accused beyond all reasonable doubts order of conviction cannot be passed . Therefore this court is unable to accept the reasoning and analogy of the learned trial court and hence the same is liable to be set aside. Conclusion

#21. In light of the above discussion, we are of the view that the prosecution was not able to substantiate the charges levelled against the appellants beyond all reasonable doubts. They are entitled to be acquitted from this case.

#22. Accordingly, the appellant is acquitted from all the charges he had been charged with. The present appellant is directed to be set at liberty forthwith, if not wanted in connection with any other case. He shall, however, furnish a bond to the satisfaction of the trial Court in terms of Section 437A of the Code of Criminal Procedure Code which shall remain valid for 6 months from date.

#23. All pending applications, if any, including application for bail, shall stand disposed of in the above terms.

#24. Let a copy of the judgement along with the Trial Court records be sent down to the Court below at once.

#25. Urgent certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree (DEBANGSU BASAK, J.) (CHAITALI CHATTERJEE DAS, J.)