16.1. P.W.1 was cross-examined by the defence. In his cross-examination, P.W.1 stated that
he did not mention in Ext.-1 about the age of the injuries. He further stated that the
alleged occurrence took place on 20.09.2015, as could be seen from the Requisition
Letter.
17. From the nature of injuries, as testified by the Autopsy Doctor, P.W.1 in his testimony
and the Post-Mortem Examination [PME] Report [Ext.-1], it is clearly demonstrated that
the death of the deceased was a homicidal one. The four nos. of injuries, as stated
above, were found to be sufficient to cause death in the ordinary course of nature.
From the nature of injuries, the Autopsy Doctor, P.W.1 had opined that the injuries
might be caused by using a sharp cutting weapon like Dao.
18. Before turning to the testimony of the witnesses, who only termed as vital ones by
both the prosecution and the defence, the testimony of the other witnesses can be
analysed for finding out their probative value.
19. P.W.7 who was a Police Constable, had merely escorted the prosecution witnesses,
P.W.2 and P.W.3 to the Court on 24.09.2015 for recording their statements. He only
knew that the statements of P.W.2 and P.W.3 were recorded in Court.
20. P.W.4 and P.W.5 were co-villagers being inhabitants of Rangapathar Gaon. They knew
both the appellant and the deceased. P.W.4 stated in his evidence-in-chief that on
20.09.2015, Police personnel came to the village and requested them to pull out the
deadbody from water in the paddy field. As per P.W.4, P.W.5 was also with him at that
time and the appellant was with the Police personnel. P.W.4 stated that he pulled out
the deadbody from water. P.W.5 was another person who testified that he along with
P.W.4 pulled out the deadbody from water in the paddy field. P.W.4 was a signatory to
the Seizure List, [Ext.-3] and the Inquest Report [Ext.-4]. Similarly, P.W. 5 was also a
signatory to the Seizure List, [Ext.-3] and the Inquest Report [Ext.-4]. By Seizure List
[Ext.-3], one Naga Dao of about two feet including the handle was seized by the I.O.
[P.W.9] on being produced by the appellant at 05-00 pm on 20.09.2015 at Village -
Rangapathar. In his testimony, P.W.4 stated that he did not have any knowledge about
seizure of any Dao. On the other hand, P.W.5 deposed to the effect that the appellant
had handed over one Dao to the Police personnel and the Police personnel had seized
the Dao from the appellant. P.W.5 also identified the seized Dao as Mat. Ext.-1. P.W.5
denied a suggestion that the appellant did not hand over the Dao to Police in the field.
21. P.W.8, another co-villager, corroborated the testimony of P.W.4 and P.W.5 on the point
that on 20.09.2015, the Police personnel came to the village and requested them to
help in recovering the deadbody of the deceased from the paddy field. P.W.8 further
stated that the P.W.4 and P.W.5 were with the Police personnel at the paddy field.
P.W.8 further stated that after pulling out the deadbody from water in the paddy field,
it was put in a pull cart for taking it to the Police Station. P.W.8 was a signatory to the
Inquest Report [Ext.-4] and he identified his signature therein as Ext.-4[iv]. P.W.8
further stated that the appellant was found sitting on the paddy field. During cross-
examination, P.W.8 stated that he signed the Inquest Report [Ext.-4] at the field itself
but he did not know why his signature was taken.
22. From the testimony of P.W.4, P.W.5 and P.W.8, it is evident that the deadbody was
pulled out from water in the paddy field on 20.09.2015 itself. Meaning thereby, the
deadbody was lying earlier in water in the paddy field till it was taken out of water at
the intervention of Police personnel. They arrived at the paddy field after the death of
the deceased. A Dao of about two feet length including handle was also seized at
around 05-00 p.m. on 20.09.2015. The appellant was present at the paddy field during
the time of recovery of the deadbody.
23. At this juncture, it appears appropriate to mention about the relationship existing
between the four witnesses, P.W.2, P.W.3, P.W.6 and C.W.2. P.W.6 was an elder brother
of the deceased and C.W.2. The appellant is the husband of C.W.2. P.W.3 is a son of
P.W.6 and P.W.2 is the wife of P.W.3. Meaning thereby, C.W.2 is an aunt of P.W.3. The
appellant is an uncle-in-law of P.W.3.
24. In her evidence-in-chief, P.W.2 stated that the house of the appellant was near to their
house. The deceased was her uncle-in-law. On the date of the incident, she was in the
backside of her house drying clothes. Then, she saw the appellant inflicting four-five
blows on the deceased by a Dao, thereby, killing him. The deceased had gone to the
paddy field to bring his cows and it was at that time, the appellant inflicted the Dao
blows on him. P.W.2 testified that she then rushed to save her uncle-in-law, that is, the
deceased but the appellant chased her. She stated that there were no other persons
near the place of occurrence at that time. P.W.2 further stated that the deceased died
of the injuries. Police personnel came thereafter and interrogated her. She further
stated that her statement was recorded in the court. P.W.2 exhibited her previous
statement as Ext.-2 and identified her signatures therein.
24.1. During her cross-examination, P.W.2 stated that the deceased was a bachelor and used
to stay in the house of the appellant earlier as a domestic helper. The appellant has his
wife [C.W.2]. The appellant's daughter had already got married. She did not have
knowledge about the reason why the deceased left the house of the appellant. She
had no knowledge of any dispute between the appellant and the deceased for the
deceased leaving the house of the appellant. P.W.2 further stated that while going to
bring back the cows, the deceased had one lathi in his hands and there was no Dao in
his hands. She did not see any quarrel between the appellant and the deceased at the
place of occurrence. P.W.2 denied a suggestion that at the time of giving statement to
Police, she had stated about some quarrel between the appellant and the deceased.
She denied another suggestion that after the quarrel, the deceased tried to assault the
appellant with the lathi. P.W.2 also denied that they used to take the service from the
deceased and for the said reason, there was a quarrel between them. P.W.2 also
denied a suggestion that to grab the property of the appellant, her husband, P.W.3 had
concocted a false case to keep the appellant in jail.
25. P.W.3, in his evidence-in-chief, deposed that on the date of the incident, he saw a
gathering of people when he was returning home, and they were found watching
something. Then his aunt, C.W.2 told him that the appellant had killed the deceased
and for that reason, he should not go to the place of occurrence [P.O], that is, the
paddy field. However, he went to the P.O. in front of the house of the deceased and
going there, he saw that the deadbody of the deceased was lying there with injuries
on his person. P.W.3 further stated that he saw the appellant carrying a Dao in his
hands. The persons gathered there warned P.W.3 to leave the place. Then, P.W.3
rushed to the Police Out Post to inform the matter to the In-Charge therein. P.W.3 has
stated that his wife, P.W.2 kept herself concealed. Police personnel came thereafter
with him and apprehended the appellant from his house. Police also seized one Dao
from the appellant vide Seizure List, Ext.-3 wherein he gave his signature as Ext.-3[i].
P.W.3 also identified the Dao, seized as Mat. Ext.-1. P.W.3 also exhibited the Inquest
Report, Ext.-4. He stated that Police also got his statement recorded in the Court and
he exhibited his previous statement as Ext.-5 and he identified his signatures therein
as Ext.-5[i] and Ext.-5[ii] [Note : the FIR was also exhibited as Ext.-5].
25.1. During cross-examination, P.W.3 stated that he did not see the incident of killing the
deceased. It was C.W.2 who told him about the incident as she had seen the incident.
P.W.3 further stated that he used to reside with the deceased at his house and the
house was built by the deceased. He denied a suggestion that the house was built by
the appellant and they had forcibly occupied the house. He denied to have any
knowledge that for occupying the house, there was quarrel between the appellant and
the deceased. He further denied the suggestion that for keeping him in the house, on
the date of incident, the appellant made his objection to the deceased and the
deceased assaulted the appellant with a stick. He also denied a suggestion that at the
time of the incident, he had also attempted to assault the appellant.
26. P.W.6 in his examination-in-chief, deposed that on 20.09.2015, his sister, C.W.2 who
was the wife of the appellant, came to his house and informed him that the appellant
had killed their brother, that is, the deceased. On being so informed, he went to the
P.O. in front of the house of the appellant and the deceased, and saw the deadbody of
the deceased in packed form. By that time, the Police personnel had arrived at the P.O.
P.W.6 stated to have lodged the FIR, Ext.-5 and he identified his signature therein as
Ext.-5[i]. On arrival at P.O., P.W.6 was told by P.W.2 and P.W.3 that the appellant had
killed the deceased by cutting with a Dao.
26.1. In his cross-examination, P.W.6 stated that he did not see the incident of killing the
deceased as he was at his workplace at that time. P.W.6 stated that his house was at a
distance of about one mile from the P.O. P.W.6 stated that the deceased was a
bachelor. P.W.6 further stated that the appellant and the deceased used to reside
together earlier. Thereafter, his son, P.W.3 and his daughter-in-law, P.W.2 started
residing together with the deceased in the house of the deceased. P.W.6 further stated
that the houses of the appellant and the deceased were adjacent to each other and at
the time of the incident, C.W.2 was there. P.W.6 further stated that C.W.2 might have
seen the incident and it was C.W.2 who had informed him about the incident.
Accordingly, he reported the incident to the Police Station. P.W.6 further stated that
P.W.2 and P.W.3 were looking after the property thereafter. He denied a suggestion
that to grab the landed property, the deceased and P.W.3 assaulted the appellant and
for saving himself, the appellant had to use a Dao for which the deceased might have
got some injuries.
C.W.1 was attached to Saffry Police Out Post as an Assistant Sub-Inspector of Police.
When he was summoned to depose as C.W.1 on 18.07.2017, C.W.1 exhibited the
General Diary entry, G.D. Entry no. 287 dated 20.09.2015 as Ext.-X[ii] along with the
General Diary Entry Book as Ext.-X and the G.D. Entry no. 287 in the General Diary
Entry Book as Ext.-X[i]. C.W.1 further deposed that the G.D. Entry no. 287 was
registered on 20.09.2015 and in the said entry, it was mentioned that at about 04-00
p.m., P.W.3 came to the Police Out Post to verbally inform that the appellant had killed
the deceased with a Dao.
27. From the testimony of the witnesses, P.W.2, P.W.3 and P.W.6, it is discernible that it
was only P.W.2, who was an eye-witness to the incident. From the testimony of P.W.3
and P.W.6, it is discernible that P.W.3 and P.W.6 were post-occurrence witnesses.
28. The statements of both P.W.2 and P.W.3 were recorded earlier under Section 164,
CrPC. P.W.2 exhibited her previous statement as Ext.-2 and P.W.3 exhibited his
previous statement as Ext.-5. The learned Amicus Curiae has submitted that these two
witnesses P.W.2 and P.W.3 had projected a different version in their previous
statements.
29. On perusal, it is found that neither P.W.2 nor P.W.3 was specifically confronted by the
defence when they were cross-examined by making any specific reference to their
respective previous statement, Ext.-2 and Ext.-5. Like the statement recorded under
Section 161, CrPC, which can be used for the purpose of contradiction, a previous
statement recorded under Section 164, CrPC can also be used for contradiction. When
a witness is to be confronted with his/her previous statement for the purpose of
contradiction, the specific part from the statement where he/she had stated differently,
is required to be put to the witness and if the witness admits it, it may amount to
admission. But, if the witness denies having given such statement, it does not amount
to admission and if it is to be proved that he/she had given such statement, the
attention of the witness must be drawn to such part of the previous statement. Section
145 of the Evidence Act is clear on this aspect. In the instant case, no part of their
previous statements, Ext.-2 and Ext.-5 was not put to the witnesses, P.W.2 and P.W.3
respectively by the defence to bring in any kind of contradiction. The previous
statements of P.W.2 and P.W.3 were not used by the defence to show that they gave a
different version of the incident in their previous statements. The statements recorded
under Section 164, CrPC can be used in Court, but they are not substantive evidence
and they can be used only for corroboration or contradiction. It is the witness's
testimony in court which has the sanctity. The previous statements are of no
assistance to the appellant regarding these witnesses giving a different version as no
contradiction has been established.
30. P.W.3, in his testimony, stated that it was C.W.2, his aunt, who informed him about the
assault made on the deceased by her husband. In a similar manner, P.W.6 also
deposed to the effect that on 20.09.2015, his sister, C.W.2 came to his house and
informed him that her husband had killed the deceased, who was a brother of both
P.W.6 and C.W.2. But, in the Charge-Sheet [Ext.-7], C.W.2 was not cited as a witness in
the list of prosecution witnesses by the I.O.
31. The learned Trial Court after closure of evidence from the prosecution side on
20.06.2017; examination of the appellant under Section 313, CrPC on 01.08.2017; and
after going through the case records; had reached an opinion on 27.02.2018 that
C.W.2 would be a necessary witness. The learned Trial Court had, thereafter, issued
summons for the purpose of examining C.W.2 invoking the power under Section 311,
CrPC.
32. C.W.2 when examined by the Court, deposed that the appellant was her husband and
the deceased was her younger brother. On the date of the incident, she was at her
matrimonial house at Rangapathar Gaon. She stated that on that day, there was a
gathering at the paddy field and she learnt that her husband [the appellant] had killed
her brother [the deceased]. After some time, Police personnel arrived at the P.O. She
deposed that she saw cut injury marks on the neck of the deceased.
32.1. When examined by the prosecution, C.W.2 stated that she had seen the incident of
cutting her brother [the deceased] by the appellant [her husband] on her own.
32.2. C.W.2 was thereafter, examined by the defence. C.W.2 stated that the deceased used
to stay in the house of the appellant. Subsequently, P.W.3 with his wife, started living
with the deceased and therefore, the deceased left their house. The house was
constructed by the deceased. But, P.W.3, later on, forcibly possessed the house of the
deceased. On this issue, the deceased had a quarrel with P.W.2 and P.W.3. C.W.2
further stated that in her matrimonial home, she used to live with her husband, that is,
the appellant and their daughters were already married. After the incident, Police
found her husband at their house. C.W.2, during her cross-examination, further stated
that she did not tell P.W.3 that the appellant had cut the deceased. Conspicuously, the
defence did not confront C.W.2 with regard to that part of her testimony that she had
witnessed the incident of cutting the deceased by the appellant.
33. P.W.3 in his testimony stated that it was C.W.2 who had informed him that the
appellant had killed the deceased. C.W.2 during cross-examination stated that she did
not tell P.W.3 that the appellant had killed the deceased. Thus, that part of the
testimony of the P.W.3 that he was informed by C.W.2 that the appellant had killed the
deceased is hearsay. The defence had, noticeably, did not examine C.W.2 as to
whether she had gone to the house of P.W.6 and informed him that the appellant had
killed the deceased. P.W.6 stated that on being informed by C.W.2, he had lodged the
FIR [Ext.-5].
34. In Balram Prasad Agrawal vs. State of Bihar and others, [1997] 9 SCC 338,
it has been observed that testimony of a witness based on the information of another
person is admissible in evidence if the informant is also examined in the case. The
Hon'ble Court has observed in the following manner :-
11. .... We may also note that even if the nature of information alleged to be conveyed
to PW 6 the father of the deceased by the neighbours about what was actually heard
by them on that fateful night may be ruled out as hearsay, the fact that some
information was conveyed to him by the neighbours on 12.11.1988 which prompted
him to rush to the police as he entertained grave doubt on the basis of what was
conveyed to him by neighbours about the conduct of the accused on that night and
which made him apprehend about their culpability in connection with unnatural death
of his daughter, would remain admissible in evidence as the conduct of this witness.
PW 6 propelled by the fact of such information by neighbours about what the witness
did on 12.11.1988 and not earlier by approaching the police. That part of his evidence
was not shaken in cross-examination. Not only that but even the hostile witnesses
PWs 3 and 4 who are alleged to have given some information to the witness PW 6 on
12.11.1988 had not even whispered either in their chief examination or cross-
examination about their not having conveyed any information or not having met PW 6
on 12.11.1988 as deposed to by PW 6 in his evidence. This part of the evidence of
PW 6 would not be hit by the rule of exclusion of hearsay evidence. .......
35. Turning back to the facts of the case in hand, we find that it was the information given
by C.W.2 to P.W.6 which prompted P.W.6 to lodge the FIR on that day itself. The fact
that C.W.2 had informed P.W.6 about the incident of assault was not put to
examination by the defence when C.W.2 was examined. P.W.6 was also not asked
anything on this point when he was cross-examined by the defence. Thus, that part of
the evidence of P.W.6 that he had lodged the FIR on the basis of information received
from C.W.2 would not be hit by the rule of exclusion of hearsay evidence. At the same
time, it is to be kept in mind that part of the information wherein C.W.2 might have
stated to P.W.6 that it was the appellant who had killed the deceased, would still
remain in the realm of hearsay.
36. The law relating to Section 311, CrPC has been explained by the Hon'ble Supreme
Court in a case titled K.P. Tamilmaran vs. the State by Deputy Superintendent
of Police, 2025 INSC 576. It is acknowledged that there is a wide discretion with
the Courts under Section 311, CrPC and these powers can be exercised suo moto also.
As the object behind such suo moto power is that the Court must not be deprived of
the benefit of any valuable evidence. It is absolutely necessary that the Court must be
apprised of the best evidence available. The Courts have, therefore, wide powers to
decide on their own whether a witness is required to be called or recalled for
examination or re-examination under Section 311, CrPC and the power under Section,
311, CrPC can be invoked at any stage of the trial, even after the closure of evidence.
Section 311, CrPC can also be read along with Section 165 of the Evidence Act, as the
powers of the Court under Section 165 of the Evidence Act are complementary to
Section 311, CrPC. If the Court finds that such a person should have been examined as
a prosecution witness or he/she was omitted from the list of witnesses due to some
oversight, mistake or for any other reason, the Court may allow the application and
such a person can be examined as a prosecution witnesses. When the court calls a
person as a Court Witness, there are some restrictions regarding cross-examination of
such witness.
37. In a case neither party is interested in examining a person as a witness, yet, the Court
feels that the evidence of such a person is necessary for a just decision, the Court
though cannot compel either the prosecution or the defence to call a witness, but it
can invoke its power under Section 311, CrPC read with Section 165 of the Evidence
Act and call such a person as a Court Witness. Court witnesses can be cross-examined
by either side but only with the leave of the Court. Further, the cross-examination is to
be restricted only to what was stated by this witness in his/her reply to the questions
of the Court, and the Court witness cannot be contradicted to his/her previous
statement made before the Police, that is, the statements under Section 161, CrPC.
38. Returning back to the testimony of P.W.2, we do not see that the defence had
confronted her by putting any question to P.W.2 that it was not possible for her to
witness the incident of assault on the deceased by the appellant from the place
wherefrom she had witnessed the incident at the P.O. According to P.W.2, at the
relevant point of time, she was in the backside of her house. Though learned Amicus
Curiae has placed reliance in the Sketch Map of the P.O. [Ext.-6] to urge the point, but,
in view of the fact that P.W.2 was not confronted on that point by the defence during
her testimony, the same cannot be urged at the appellate stage in the absence of any
foundation. In any view of the matter, it is the testimony of the witness before the
Court which has the sanctity. A Sketch Map of the P.O. is not a substantive piece of
evidence.
39. It is settled that a conviction can be based on the sole testimony of a solitary witness.
But in order to make the testimony of a solitary eye-witness the basis of conviction,
one of the pre-requisites is that his/her presence at the place of occurrence has to be
natural. Another pre-requisite to make the testimony of solitary eye-witness the basis
of conviction is that the testimony of such eye-witness should be strong, reliable and
free from any blemish. It is also settled proposition that it is the quality of evidence not
the quantity of evidence, which is material. It has been settled that the evidence of a
single witness may sustain a sentence whereas host of vulnerable witnesses may fail to
support a simple charge.
40. In so far as witnessing the incident of assault on the deceased by appellant is
concerned, P.W.2 her house being at a close vicinity to the place of occurrence, her
presence at the relevant time in her own house cannot be doubted and is to be treated
as natural.
41. In her testimony, P.W.2 stated that the appellant inflicted four-five blows on the
deceased by a Dao. The ocular testimony with regard to the assault is found to be
consistent with the medical evidence adduced by the prosecution through the Autopsy
Doctor, P.W.1 and the Post-Mortem Examination [PME] Report [Ext.-1]. In the
testimony of P.W.1 and the PME Report [Ext.-1], it was recorded that the deceased
sustained five nos. of injuries, as mentioned hereinabove, on his person. Out of five
injuries, four of them were sufficient to cause his death. P.W.1 in his testimony further
mentioned that those injuries might be caused by using a sharp cutting weapon like
Dao. Therefore, the ocular testimony of P.W.2 is found to be consistent with the
medical evidence.
42. It has been held in Kartik Malhar vs. State of Bihar, [1996] 1 SCC 614, placed
by the learned Additional Public Prosecutor, to the effect that the case of the
prosecution cannot be discarded merely on the ground that it was sought to be proved
by only one eye-witness, nor can it be insisted that the corroboration of the statement
of that witness was necessary by other eye-witnesses. It is open to the Courts to
record a conviction on the basis of a statement of a single witness provided the
evidence of that witness is reliable, unshaken and consistent with the case of the
prosecution.
43. Having considered the testimony of P.W.2 from all standpoints, her testimony is found
to be strong and reliable and, due to failure on the part of the defence to unshake her
testimony, her testimony is found to be without any blemish. It is relevant to note that
C.W.2, when she was examined by the prosecution with the leave of the Court, had
also admitted about witnessing the incident of assault on the deceased by the
appellant on the date of the incident. It is pertinent to state that the house of C.W.2
was also adjacent to the house of P.W.2 and to the P.O., that is, the paddy field.
44. The appellant in his explanation provided under Section 313, CrPC sought to project a
version that there was some dispute among the deceased, P.W.3 and P.W.6 and he
mediated in the dispute. However, from cross-examination of the witnesses, no such
trend is visible even in the form of a suggestion.
45. In the light of the discussions made above and for the reasons assigned therein, we
are not persuaded to arrive at the view, as urged by the learned Amicus Curiae, that
the evidence is deficient to sustain a conviction. On the other hand, we find that the
prosecution has been able to lead evidence to bring home the guilt of murder against
the appellant beyond all reasonable doubts. Consequently, the criminal appeal is found
to be bereft of any merits. As a result, affirming the Judgment and Order of conviction
and sentence of the learned Trial Court, the criminal appeal is dismissed.
46. The records of the Trial Court are to be sent back forthwith.
47. Before parting with the record, we wish to place our appreciation on record as regards
the services rendered by Mr. Prasad, learned Amicus Curiae appearing for the appellant
and direct the Registry to make available to him just remuneration as per the notified
fee structure applicable to the Amicus Curiae.
48. The District Legal Services Authority is directed to award adequate compensation to
the victim[s] after due enquiry under Section 357A, CrPC and the extant Victim
Compensation Scheme framed thereunder. We further observe that such enquiry shall
be undertaken and completed with utmost expediency and thereafter, to award and
disburse appropriate compensation thereunder to the victim[s] entitled upon
conclusion of such enquiry.
JUDGE JUDGE
Comparing Assistant
