Guru Prasad vs State Of U.P.
2018 Latest Caselaw 1175 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 6								AFR
 
Case :- JAIL APPEAL No. - 1872 of 2013
 
Appellant :- Guru Prasad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 
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Hon'ble B. Amit Sthalekar,J.

Hon'ble Ajay Bhanot, J,

This jail appeal arises out of the judgment of the District and Sessions Judge, Kaushambi dated 29.01.2014 whereby the appellant, Guru Prasad has been convicted and awarded sentence of life imprisonment with penalty of Rs. 50,000/- and on non-payment of penalty a period of 5 years of rigorous imprisonment.

Briefly stated the facts of the case are that a First Information Report was lodged on 30.06.2009 by one Raghvendra Mishra, son of the accused-Guru Prasad stating therein that his brother Surendra Kumar Mishra alias Nan Bhaiya was murdered on 30.06.2009 at about 09:15 AM by his father, Guru Prasad with an axe, several blows of which were dealt on the face, neck and forehead of the deceased. This horrendous act was carried out inside the house. The First Information Report was lodged at 10:30 A.M. The police station is stated to be about 8 kms. from the site of the incident. On the basis of the First Information Report a Crime Case Number 194/2009, under Section 302 I.P.C was registered. Shri Dinesh Prakash Pandey, Station House Officer, Sarai Akil, District Kaushambi investigated the case. He reached the site of the murder immediately and collected blood samples from there which were sealed and thereafter the recovered material was sent for forensic investigation. It has also come on record that the murder weapon, namely, the axe was recovered from a dilapidated and abandoned neighbouring house. Inquest was carried out on the same date on 30.06.2009 at about 10:30 A.M. The Post Mortem of the deceased Surendra Kumar Mishra alias Nan Bhaiya was carried out on 1st July, 2009 at about 2:00 PM. by Dr. Ashutosh Pandey, PW-6. He noted the following injuries on the person of the deceased:-

1. Wide deep wound 6cm x 2cm on the left side of the forehead, which was bone deep and the bone was also broken.

2. On the inner side of the nose there was an open wound 1cm x 1cm, which was bone deep and the nasal bone was also broken.

3.On the left side of the forehead there were cut marks on the inner muscle 2cm x 1cm, which was bone deep, 4cm from the left eyebrow and the bone was also broken.

4.On the chin there was a bone deep cut wound 2cm towards the inside 2cm x 1cm and the chin bone was also broken.

5.There was a neck deep wound 4cm x 1cm, wind pipe cut and 1cm cut below hyoid bone.

6. Inside wound 1cm x 1cm muscle deep, 1 cm. below the injury no. 5.

7. A cut wound 4cm x 1cm muscle deep just above the left collar bone.

In the internal injuries, frontal bone of head and the nasal bone were found broken. The membranes were torn and blood had collected in clots, wind pipe was cut. The report of the Doctor was that the injuries were caused by a sharp edged weapon.

During trial, in order to prove its case the prosecution examined the following six witnesses:

1. Raghvendra Kumar Mishra, PW-1.

2. Rama Devi, PW-2.

3. Madan Mishra, PW-3.

4. Dr. Ashutosh Pandey, PW-4.

5. Constable Satrughan Singh, PW-5.

6. Dinesh Prakash Pandey, PW-6.

Raghvendra Kumar Mishra, PW-1 in his deposition stated that his brother Surendra Kumar Mishra alias Nan Bhaiya was murdered in the house by his father, Guru Prasad by dealing several blows on the neck, face and forehead with an axe. At the time of the incident he had gone to the shop of Babu Lal Baniya which is about 200 meters from his house. He stated that it was when he returned from the said shop that he saw about 2 to 4 people sitting outside the door of his house, among them was his younger brother Devendra Mishra. He stated that the incident occurred at a time when his mother was cooking the morning meal in the house and his father had already eaten food. The deceased was lying on a cot. He further stated that the information of the incident was given to the Police by some villagers on phone but he does not know their names and the Police had arrived at the scene of the crime within a short time and it was then that he reported the matter to the police in writing.

Testimony of PW-2, Rama Devi, wife of the appellant and mother of the deceased Surendra Kumar Mishra was also recorded. In her depositon P.W. 2 has stated that on the day of the incidence she was cooking the morning meal in the house at about 9.00 A.M. when she heard the sound of " Khat Khat" and when she went to the place from where this sound was emanating she saw her husband Guru Prasad, appellant repeatedly dealing blows on the head of her son Surendra Kumar Mishra alias Nan Bhaiya with an axe as if he were chopping wood. Seeing the macabre incident she started screaming, upon which the appellant chased her with the axe and thereafter she ran towards the terrace and from there she jumped into the house of Hari Shankar. She also stated that the appellant had dealt several blows causing injuries on the neck, face and forehead of the deceased Surendra Kumar Mishra with an axe resulting in the instantaneous death of Surendra Kumar Mishra. She stated that she saw the appellant with her own eyes dealing the death blows to her son Surendra Kumar Mishra killing him on the spot. She also stated that two days prior to this incident she had been beaten up by her husband, the accused, which was protested by Surendra Kumar Mishra and it was for this reason that her husband killed Surendra Kumar Mishra. She stated that Surendra was working as a security guard in Chhatisgarh and used to come to home monthly or in two months. On the day of the incidence he was ready to go back. He woke up early in the morning but had not eaten food. She has also deposed the three-four boys were sitting on the chabutra of Shesh Narain Tiwari including her son Madan Mishra. She also stated that the axe was discovered by the police and she came to know that the police had discovered the axe the same day. It is also stated by her that at the time of the murder her husband had bolted the main door of the house from inside.

Madan Mishra, PW-3 in his testimony stated that on 30th June, 2009 at the time of the incidence he was sitting in front of his house on a cot. The accused was inside the house and after 5 minutes he saw the front door of the house being closed and thereafter he heard the sound of "Khat Khat" and immediately thereafter he heard his mother screaming. He has further stated that he went on the terrace from the house of Hari Shankar and saw his father with a bloodstained axe in his hand which he then threw in a dilapidated and abandoned adjacent house and ran away and when he reached the spot of the incident he saw the bloodstained body of his brother Surendra Kumar Mishra lying there. There were injuries on the forehead, face and neck caused by an axe. He stated that when he went on the terrace of the house of Hari Shankar he did not see his mother, after about half an hour she was brought by two or three persons from the adjacent house in an unconscious state. He then opened the front door of the house. When he opened the door of the Chaupal and saw the body of his brother, he raised a hue and cry upon which neighbours collected there and his mother was also brought there in an unconscious condition. The PW-3 has stated that he did not see her father killing his brother with the axe but the axe was recovered in his presence from the adjacent dilapidated and abandoned house situated to the South of his house. He also stated that he heard the sound of "Khat Khat" caused by an axe and he also saw the bloodstained axe in the hand of his father and when he entered the house he saw the bloodstained body of his brother lying there. His brother was still alive at that time and was slightly moving his hands and feet. He saw his father running towards the terrace and jumping from there and running away. PW-3 categorically stated that the murder of his brother was caused by his father with an axe which he had thrown in the dilapidated and abandoned neighbouring house but he could not apprehend his father as he ran away.

Dr. Ashutosh Pandey was examined as PW-4. He is the person, who has conducted the autopsy on the person of the deceased and he confirmed his findings as recorded in the Post Mortem Report. He has reported that there was semi digested food in the stomach of the deceased. He also stated that it takes about 4 to 6 hours for the food to reach a semi digested condition. He categorically stated that the deceased would possibly have consumed his food 4 to 6 hours prior to his death. He also categorically stated that the death was caused as a result of the injuries sustained by the deceased.

Head Constable, Shatrughan Singh, Police Station Kaisarbagh, Lucknow was examined as PW-5, who has confirmed that on the date of the incident i.e. on 30.06.2009 he was posted at Police Station, Sarai Akil, District Kaushambi and that the First Information Report was lodged at about 10:30 AM by Raghvendra Mishra stating that his father had killed his brother, Surendra Kumar Mishra alias Nan Bhaiya with an axe. On the basis of the information so given a First Information Report was lodged and Crime Case No. 194/2009 under Section 302 I.P.C was registered.

Dinesh Prakash Pandey, PW-6 is the Investigating Officer, who has stated that the incident occurred on 30.06.2009. Upon the lodging of the F.I.R by Raghvendra Mishra at about 10:30 in the morning regarding murder of his brother Surendra Kumar Mishra committed by his father, the appellant herein, he rushed to the site of the incident. The site of the incident was investigated and Panchayatnama was prepared. He stated that bloodstained earth was collected and the weapon of assault, namely, an axe was recovered from the dilapidated and abandoned adjacent house, situated at the back of the house of the appellant and recovery memo was prepared.

There being no counsel representing the appellant and this being a jail appeal, the High Court by its order dated 24.02.2018 appointed Shri Sitaram Sharma as Amicus Curiae to argue the case on behalf of the appellant.

The learned amicus curiae submitted that the entire case resulting in the conviction of the appellant was based upon the sole testimony of P.W. 2. He submitted that the statement of Rama Devi, P.W. 2 has not been corroborated by any other independent witness and that there are discrepancies in her testimony. He submitted that the P.W. 2 has stated that at the time of the incidence she was cooking food at about 9 in the morning when she heard the sound of 'Khat Khat' and when she went to see from where the sound came, she saw that her husband, the accused, was dealing blows to her son Surendra as if he was chopping wood. She started screaming upon which the appellant chased her with the axe in his hand and thereafter she jumped into the house of Hari Shanker. She also stated that Surendra had sustained injuries on his neck, face and forehead due to axe blows which resulted in his death on the spot. After she jumped into the house of Hari Shanker, she became unconscious and she could not remember what happened after that. She stated that two days before the incidence her husband, the accused had beaten her up which was objected to by Surendra and therefore the appellant killed him. It is further submitted by the learned amicus curiae that the P.W. 2 in her deposition had stated that the deceased had slept during the night and woken up before dawn and that he had not eaten anything on the day of the incident nor had he taken water or breakfast but in the post mortem report it has been mentioned that there was semi digested food in his stomach. This shows that the incident had occurred sometime in the night itself immediately after the deceased had had his dinner which fact was being concealed by the P.W. 2. He also submitted that at one place the P.W. 2 has stated that her other son Madan was sitting with three or four boys on a chabutra belonging to Shesh Narain Tiwari but Madan Mishra, P.W. 3 in his statement has stated that he was sitting in front of his own house on a cot (charpoy). He therefore submits that there is inconsistency in the statement of P.W. 2 and therefore she is not a reliable witness.

In our opinion there is absolutely no inconsistency in the statement of P.W. 2. She is an eye witness of the incident. She has accurately reported that she was cooking in the house at about 9 in the morning when she heard the sound of 'Khat Khat' as if of chopping wood and when she went inside the room from where the sound was coming, she saw her husband, the accused dealing axe blows on the neck, face and forehead of her son Surendra which resulted in the death of Surendra. She screamed in terror upon which the accused chased her with the axe whereupon she ran up the stairs and from there she jumped into the house of Hari Shanker and thereafter fainted and could not remember what had happened. She accurately stated that her other son Madan was sitting outside the house of Shesh Narain. This fact is also mentioned in the statement of P.W. 3 wherein he has stated at one place that he was sitting in front of his own house and at another place he has stated that he was sitting in front of the house of Shesh Narain. This means that P.W. 2 could see the house of Shesh Narain from inside of her own house and therefore the house of Shesh Narain must have been in front of her own house. The counsel for the appellant has also not been able to establish any motive as to why the P.W. 2 would try to implicate her own husband in the murder of her own son.

P.W. 3 also in his deposition has stated that he was sitting in front of the house when the incident occurred. He heard the sound of 'Khat Khat', whereupon he went on the terrace and from there he climbed down into his own house. He has stated that he saw his father, the appellant carrying a blood stained axe in his hand. His father threw the axe in an adjacent dilapidated and abandoned house and thereafter he ran away.

If the statement of P.W. 2 and P.W. 3 are read conjointly it would be clearly established that the deposition of P.W. 2 was absolutely accurate to the effect that she was being chased by her husband with an axe and she ran towards the stairs from where she jumped into the house of Hari Shanker whereas P.W. 3 at the same time had rushed from the house of Hari Shankar and from the terrace he was coming down via the same stair case when he met with his father coming up the stair case with the blood stained axe in hand and therefore though P.W. 3 Madan Mishra was not an eye witness of the actual killing of his brother Surendra by his father but nevertheless he had rushed to the spot within a few seconds and saw his father rushing up the stairs with the blood stained axe in his hand. P.W. 3 has also stated that he went to the Chaupal where he saw his brother lying covered with blood all over and injuries on his neck, face and forehead. P.W. 3 has also stated that it was he who went from the stairs of Shesh Narain and entered into his own house and opened the main door. Therefore, so far as the incidence of killing of Surendra by the appellant is concerned, the same stands corroborated by the testimony of P.W. 3.

We pointedly asked the learned amicus curiae as to what would be the motive for P.W. 2 and P.W. 3 for falsely implicating the appellant who was the husband of P.W. 2 and father of P.W. 3 in the murder of his own son Surendra, The learned amicus curiae could not point out any motive for P.W.2 and P.W.3 to falsely implicate the accused. He reiterated his earlier submission that as per the post mortem report there was semi digested food in the stomach of the deceased which means that the time of death would have been closer to dinner time. The evidence of Dr. Ashutosh Pandey, who has proved the post mortem report, is that it takes about 4 to 6 hours for food to reach a semi digested state. He therefore, submitted that the deceased must have had his dinner between 8 - 9 in the previous night and the time of death therefore would have been between 1 a.m. - 2 a.m. in the morning. We do not find the submission of the learned amicus curiae convincing at all because it has not come in the statement of any of the witnesses as to whether and when the deceased had dinner in the previous night and besides it overlooks the important factum that the deceased had woken up in the pre-dawn hours and there is nothing to show that he could not have eaten something at that hour between 4 a.m.- 5 a.m. in the morning which are pre-dawn hours and if he had eaten something at that time there would have been every possibility of finding semi digested food in his stomach by 9.15 a.m., when the incidence took place. Though this fact does not come forward in the statement of any of the witnesses, may be because no question was put to them, but it does account for the finding of semi digested food in the stomach of the deceased. So far as the accused having a motive to murder his own son, the statement of P.W.2 was that Surendra, the deceased had objected to his father (accused) beating his mother. However, motive becomes irrelevant in the face of direct and unimpeached eye-witness account of the incident. It must be remembered that P.W.2 is a natural witness and not a mere chance witness.

In Bipin Kumar Mondal Vs. State of West Bengal reported in (2010) 12 SCC 91 the Supreme Court in paragraphs 22 to 26 has held as under:

"22. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

23. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55, this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.

24. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Vide Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91).

25. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. (Vide Ujagar Singh Vs. State of Punjab, (2007) 13 SCC 90).

26. While dealing with a similar issue, this Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:

"39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

In Criminal Appeal No.872 of 2015 (Khurshid Ahmed Vs. State of Jammu & Kashmir) decided on 15.05.2018 the Supreme Court in paragraphs 16 and 23 has held as under:

"16. Another argument advanced is that there was no motive to commit the offence and in the absence of strong motive, the appellant cannot be held guilty under Section 302, RPC. In the present case, motive can be traced from the evidences produced by the prosecution with regard to the prior incident that took place between the deceased and accused in connection with payment of money over a transaction where the accused stood as a guarantor. Because of the earlier scuffle, the subsequent incident has occurred in which the accused hit the deceased with an iron rod due to which the deceased lost his life. It is appropriate to observe that in Halsbury's Laws of England, 3rd Edition, with regard to ''motive', it is stated that "the prosecution may prove, but it is not bound to prove the motive for a crime". ''Motive' is an emotion which compels the person to do a particular act. But in all the cases, it will be very difficult for the prosecution to prove the real motive. Motive is a double edged weapon when there is a direct and reliable evidence available on record, motive loses its importance. In a case of circumstantial evidence, motive assumes greater importance than in the case of direct evidence. In a case of direct and compelling evidence, even assuming that no motive is attributed, still the prosecution version has to be examined. As regards to the importance of existence of motive in a criminal case, here it is worthwhile to look at the ratio laid down by this Court in Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55:

"In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy".

23. In view of the above discussion, we are of the considered view that the direct oral evidence available on record coupled with the medical evidence, points at the guilt of the accused and not proving the motive for commission of the offence lost its significance in the facts of the case."

The learned amicus curiae then referred to the various dimensions of the axe stated to have been the weapon of assault and submitted that its width and breadth do not tally with the nature of injuries suffered by the deceased and that it does not rule out the possibility of the injuries being caused by some other weapon. Here again the learned amicus curiae has not been able to show that multiple weapons were used or that there was more than one person involved in the murder of Surendra. He submitted that the doctor who conducted the post mortem examination could not point out whether the injuries were caused by the same weapon inasmuch as he stated that he could not state accurately whether the injuries were caused by a single weapon or by multiple weapons and that he could not say whether there were more than one accused persons. We do not find any ambiguity in the statement of the doctor inasmuch as the post mortem report has to be read in its entirety particularly with regard to the finding with reference to the injuries and nowhere has it been suggested by the doctor that the injuries were such as could have been caused by some other and different instrument. Infact the doctor has nowhere stated the injuries could not have been caused by an axe and considering the depth of the injuries it cannot be held that it could not have been caused by an axe.

In Vadivelu Thevar Vs. State of Madras reported in AIR 1957 SC 614 the Supreme Court in paragraph 10 has held as under:

"On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established :

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes."

In Anil Phukan Vs. State of Assam reported in (1993) 3 SCC 282 the Supreme Court in paragraph 3 has held as under:

"3.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."

In Kartik Malhar Vs. State of Bihar reported in (1996) 1 SCC 614 the Supreme Court in paragraph 7 it was held:-

"7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelyu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same lime, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present Indeed, the Courts insist on the quality, and, not on the quantity of evidence.

In Chittar Lal Vs. State of Rajasthan reported in (2003) 6 SCC 397 the Supreme Court in paragraph 7 has held as follows:

"7. Evidence of the person whose name did not figure in the FIR as witness does perforce become suspect. There can be no hard and fast rule that the names of all witnesses more particularly eye-witnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan vs. State of Rajasthan (2001 (6) SCC 296) mere non-mention of the name of an eye-witness does not render prosecution version fragile. The information was not lodged by an eye-witness. Mental condition of a person whose father has lost life inevitably gets disturbed. Explanation offered by witnesses for non- mention of PW3's name is plausible. Additionally it is to be noted that in the present case the statement of PW3 was recorded on the same date of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW3's testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness (PW3)'s testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohamad Gugal Esa Mamasan Ger Alalah v. The King (AIR 1946 PC 3). The Privy Council focused on the difference between English Law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of Evidence Act. The view has been echoed in Vadivelu Thevar v. The State of Madras (AIR 1957 SC 614), Guli Chand and Ors. v. State of Rajasthan (AIR 1974 SC 276), Vahula Bhushan alias Vehuna Krishnan v. State of Tamil Nadu (AIR 1989 SC 236), Jagdish Prasad and Ors. v. State of M.P. (AIR 1994 SC 1251), and Kartik Malhar v. State of Bihar (1996 (1) SCC 614)."

In Abdul Sayeed Vs. State of Madhya Pradesh reported in (2010) 10 SCC 259 it has been held that where eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. Paragraph 35 of the said judgment reads as under:

"35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

"21. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

Shri Sitaram Sharma, learned counsel then submitted that the recovery memo could not have been relied upon as the investigating officer had stated that the recovery of the weapon of assault was made in the presence of Kamlesh Tiwari and Santosh Kumar Dubey and these two persons were never examined by the prosecution. Be it that Kamlesh Tiwari and Santosh Kumar Dubey were not examined by the prosecution but the statement of Dinesh Prakash Pandey, the investigating officer is absolutely clear that the weapon of assault was discovered immediately in the adjacent and dilapidated house and the forensic report also confirms that it had human blood, therefore in the totality of the circumstances when read with the deposition of the eye witnesses particularly P.W.3, Madan Mishra, the testimony of the investigating officer cannot be discarded with regard to the recovery memo merely because the two witnesses of recovery memo were not examined by the prosecution.

Shri Sharma then sought to suggest that Surendra deceased may have been murdered by some neighbor which was also a stand taken by the accused in his defence deposition but he has not been able to establish any motive for other persons in the village who may have had enmity with the deceased so as to murder him. He has tried to suggest that there was a love angle of the deceased with one Reeta Devi and that her family members may have committed the murder but no defence witness was produced in this regard, neither was Reeta Devi nor any witness of the village was produced as a defence witness to corroborate the suggestion of the accused that the murder was committed by the family members of Reeta Devi or by some other person. The eye witness account of P.W.2 stands unimpeached.

For reasons aforesaid, we do not find any illegality or infirmity inthe order dated 29.1.2014 of the trial court. Therefore, the conviction and sentence of the appellant as awarded by the trial court is affirmed. The appeal lacks merit and is accordingly dismissed.

The appellant is in jail. He shall be kept there to serve out the sentence as awarded by the trial court and affirmed by us.

Office is directed to communicate this decision to the court below forthwith and send back the record.

We also wish to place on record our appreciation of the sincerity and labour put in by the amicus curiae, Shri Sitaram Sharma in painstakingly taking us through the facts and evidence and the records though we may not agree with him in the our conclusions. It is also directed that a sum of Rs.10,000/- be paid to Shri Sitaram Sharma, learned amicus curiae towards fees.

The above amount shall be paid to Shri Sitaram Sharma, learned amicus curiae by the Registry of this Court within 15 days.

Dated: 31st May, 2018

O.K. /N Tiwari