Guput Singh @ Gupteshwar Prasad Singh vs The State Of Jharkhand
2025 Latest Caselaw 2693 Jhar

Jharkhand High Court

Guput Singh @ Gupteshwar Prasad Singh vs The State Of Jharkhand on 18 February, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
          Criminal Appeal (D.B.) No. 81 of 2005
                          With
          Criminal Appeal (D.B.) No.144 of 2005
[Against the Judgment of conviction dated 07.12.2004 and Order
of sentence dated 08.12.2004, passed by learned Sessions Judge,
Palamau, in Sessions Trial No.61 of 2003]

1. Guput Singh @ Gupteshwar Prasad Singh, s/o late Ram
   Badan Singh                        ......... Appellant,
                               (In Cr. Appl (D.B.) No. 81 of 2005)
2. Bablu Singh @ Abhimanyu Kumar son of Sri Guptesh
   Prasad Singh                     ......... Appellant,
                              (In Cr. Appl (D.B.) No. 144 of 2005)


       Both residents of Mohalla-Hamidganj, P.S. Daltonganj
(Town), District-Palamau.

                             Versus
The State of Jharkhand                ...    ...     Respondent

                        PRESENT
      HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
           HON'BLE MR. JUSTICE NAVNEET KUMAR
                            .....
     For the Appellants  : Mr. Rajesh Kumar, Advocate
                         : Mr. Amit Kumar, Advocate
                         : Mr. Maninder Kr. Sinha, Advocate
     For the Respondent  : Mr. Vishwanath Roy, Spl.P.P.
                                                 [in Cr. Appl. 81/2005]
                           : Mrs. Priya Shrestha, Spl. P.P.
                                               [in Cr. Appl. 144/2005]


C.A.V. on 06/12/2024               Pronounced on 18/02/2025

Per Sujit Narayan Prasad, J.

1. Since both these appeals arise out of the common

judgment of conviction and order of sentence, as such with

the consent of learned counsel for the parties, they are taken

up together and are being disposed of by this common order.

Factual Matrix

2. These appeals have been filed under Section 374 (2) of

the Code of Criminal Procedure against the Judgment of

conviction dated 07.12.2004 and Order of sentence dated

08.12.2004, passed by learned Sessions Judge, Palamau, in

Sessions Trial No.61 of 2003 arising out of Sadar (Town) P.S.

Case No.317 of 2002 registered under Section 302/34 of the

Indian Penal Code and Section 27 of the Arms Act whereby

and whereunder the appellants have been convicted under

section 302 of the Indian Penal Code and Section 27 of the

Arms Act and have been directed to undergo Rigorous

imprisonment for life for the offence under Section 302 of the

Indian Penal Code, further, both the convicts have been

directed to undergo Rigorous imprisonment for 3 years for

the offence under Section 27 of the Arms Act.

3. This Court, before proceeding to examine the legality

and propriety of the judgment of conviction and order of

sentence, deems it fit and proper to refer the background of

institution of prosecution case. The prosecution story in brief

as per the allegation made in the First Information Report

reads hereunder as :-

4. According to the fardbeyan of the informant the case of

the prosecution is that on the day of alleged occurrence,

there was CHHATH Festival in the house of the Informant

C.W.1 (Court Witness No.1) Niraj Kumar Jaisawal, who was

living on rent in the house of Bhola Prasad, Advocate.

Informant's family members were engaged in distributing and

feeding prasad in the very evening. At 10.00 p.m. on the

same day i.e. on 9-11-02 there was a knock at the door.

5. Informant's elder brother Onkar Prasad Jaisawal (now

deceased) opened the door followed by Informant (C.W.1) and

their father P.W.9 Sadan Pd. Jaisawal. Informant's brother

disclosed that accused/appellant Guput Singh had come just

before 15 minutes and he had requested him to take prasad,

when accused Guput Singh had come near Informant's house

to which he had taken time for 10 minutes to come back.

Informant (C.W.1) saw in the Electric light that accused

Guput Singh and his son Bablu were armed with pistols. Two

others were also armed with fire arms like gun. As soon as

Onkar Pd. Jaiswal, informant's brother went to the accused

persons, accused Guput Singh and Bablu shot several

rounds of fire on him as a result of which he fell down. It was

further alleged that accused/ appellant Bablu shouted that

let informant and his father shall be also shot, but accused

Guput Singh said that they would be seen later on and all of

them fled away by Tata Safari Car of accused Guput singh,

parked on the road. Thereafter, injured Onkar Pd. Jaisawal

(brother of the informant) was brought to Sadar Hospital

Daltonganj by a scooter, where he was declared dead.

6. On the basis of the statement of the informant CW.1

Niraj Kumar Jaisawal, FIR being Sadar (Town) P.S. Case

No.317 of 2002 dated 10.11.2002 was registered under

Section 302/34 of the Indian Penal Code and Section 27 of

the Arms Act against the accused persons and after due

investigation chargesheet was submitted against the

appellants.

7. After cognizance of the offence, the case was committed

to the Court of Sessions. Charge under Sections u/s 302

I.P.C. and 27 Arms Act for committing murder of one Onkar

Prasad Jaisawal was framed against the appellants/accused

to which the accused pleaded not guilty and claimed to be

tried.

8. The prosecution has altogether examined 11

prosecution witnesses namely, P.W.1 Mahesh Kumar

Agarwal, PW-2 Rohit Sharma, PW-3 Bablu Kumar Jaiswal,

PW-4 Virendra Prasad, PW-5 Mohan Kumar Verma, PW-6

Rasid Tabrej, PW-7 Junaid Alam, PW-8 Anil Kumar Prasad,

PW-9 Sadan Prasad Jaisawal father of the deceased, PW-10

Jawala Pd. Jaisawal and PW-11 Sanjay Prasad Jaisawal.

9. Further 3 witnesses have also been examined as court

witnesses namely C.W-1 Niraj Kumar Jaisawal, Informant,

C.W.-2 Dr. A.K. Choudhary who had conducted post-mortem

on the dead body of the deceased and C.W.-3 Hare Ram

Sharma, Investigating officer of the case.

10. The Defence has also examined a witness in support of

their case namely D.W.1 Deepak Kumar Singhania.

11. The trial Court, after recording the evidence of

witnesses, examination-in-chief and cross-examination,

recorded the statement of the accused persons, found the

charges levelled against the appellants proved beyond all

reasonable doubts. Accordingly, the appellants had been

found guilty and convicted for the offence punishable under

Section 302 of the Indian Penal Code and under section 27 of

the Arms Act and have been sentenced to undergo life

imprisonment for the offence under Section 302 of the Indian

Penal Code and further, both the convicts have also been

directed to undergo Rigorous imprisonment for 3 years for

the offence under Section 27 of the Arms Act.

12. The aforesaid order of conviction and sentence is

subject matter of instant appeals.

13. Judgment impugned has been assailed individually by

both these appellants, who have filed separate appeals and

have taken grounds for declaring the judgment of conviction

and order of sentence to be bad in the eyes of law.

Submission of the learned counsel for the appellants:

14. Learned counsel for the appellants has submitted that

the impugned Judgment of conviction and Order of sentence

passed by the Trial Court cannot be sustained in the eyes of

law.

15. The following grounds have been taken by the learned

counsel for the appellants in assailing the impugned

judgment of conviction: -

(i) As per the Fardbeyan and the testimony of C.W.1

he and his father both have seen the occurrence

and identified the accused persons although C.W.1

says that he has seen the appellant firing on his

brother Onkar Prasad Jaiswal (deceased) but he

again stated in his statement that alongwith him,

his father was also there and had seen the

occurrence but surprisingly enough the father who

was examined as P.W.9 and whose son was killed

has categorically stated that the occurrence took

place at 10 p.m. on the day of "kharna" but he had

stated that he has not seen who had killed his son.

Thus, from the aforesaid it is evident that CW.1

Neeraj Kumar Jaiswal informant and sole

eyewitness of the instant case had falsely testified

about the commission of said crime as such he is

not a trustworthy witness and on the basis of such

non-trustworthy witness that too on such solitary

evidence without any corroborating evidence, the

conviction of the appellant is bad and fit to be set

aside.

(ii) The ground has been taken that the conviction

since is based upon the solitary eye witness, C.W-1

(informant) without having been corroborated by

the testimony of the other witnesses since the

other prosecution witnesses turned hostile and as

such conviction cannot be said to be based on

sound reasoning.

(iii) The uncle and full brother of the deceased were

examined as PW.10 Jwala Prasad Jaiswal (brother)

and PW.11 Sanjay Prasad Jaiswal (uncle) but both

of them have not supported the case of the

prosecution and thus the conviction is bad and fit

to be set aside.

(iv) Motive behind the alleged occurrence as testified

by the C.W.1 in his deposition that he was riding

on his Splender bike and at the same time at

about 9 P.M. he met with an accident with Tata

Safari of the appellant which was driven by co-

accused Bablu Singh near Panchmohan Chowk

Bazar and he dashed the Safari car of the co-

accused and that is the reason of the incident and

due to this only they came at 10 p.m. and

occurrence took place. The mensrea as stated by

the informant (C.W.1) cannot be accepted reason

because if the accident was resulted by C.W.1

Neeraj Kumar Jaiswal and thereafter at 10 p.m. if

Bablu Singh and Guput Singh came to his house

why they took his innocent brother towards

boundary and killed him.

(v) Further as per the FIR the informant C.W.1 was

standing in the door of his house and he has seen

the occurrence with the help of one street light

which has got a very thin light but during

examination-in-chief he had tried to improve this

version and stated in para 1 that "Main our mere

Papa pichhe pichhe aaye aur dekha ki Guput

Singh aur Bablu Singh ne hamaare bhai ko goli

maar diya". Thus, in the later stage he has tried to

improve the prosecution case which is not

permissible and thus this goes to prove that the

solitary witness on whose evidence the appellants

were convicted was not trustworthy.

(vi) The learned trial court failed to appreciate the

importance of the statement of D.W.1 because the

I.O. C.W.3 has categorically stated that the

occurrence took place in front of the house of Dipu

Singhania (DW.1)

(vii) C.W.1 has stated that the vehicle in question as

used in alleged commission of crime of his brother

is numbered as JH-03A-2181 as per FIR but as

per C.W.3 the said number belongs to a motorcycle

and C.W.3 has stated that the Tata Safari of the

appellant numbered as JH-14A-2181, as such the

genesis of the prosecution story that the appellant

came in Tata Safari car JH-03-2181 was not

correct because that is not the number of Tata

safari.

(viii) The place of occurrence itself is doubtful because

as per the statement of CW3, in para 3 no blood

stain was found from the place of occurrence

which is contradictory to the testimony of PW9

father of the deceased as well as the testimony of

CW1 wherein it has been stated that after series of

fire arms injury the deceased was oozing out with

blood but surprisingly at said place of occurrence

there was no blood stain as such the prosecution

story is totally baseless and false.

(ix) The pillets as claimed to be recovered was also not

sent for forensic test by a ballistic expert and till

date the pistol as used by the appellant is not

recovered and in absence of the arms used for the

crime and in absence of the ballistic report of

injury and the pillets and the empty cartridges, the

prosecution has totally failed to prove the case and

therefore, the conviction of the appellants under

section 27 of the Arms Act is bad and fit to be set

aside.

(x) The learned counsel for the appellants in order to

buttress the argument has placed reliance on the

following Judgments:

(a) Saheb S/O Maroti Bhumre etc Vs. State of

Maharashtra Criminal Appeal No. 313-314 of

2012.

(b) Ram Singh Vs. State of Utter Pradesh (2024)

4 SCC 208(Para 34,35,36,37)

(c) Pritinder Singh @ Lovely Vs. State of Punjab

(2023) LIVE LAW SC 516 (Para-25)

16. The learned counsel for the appellant, based upon the

aforesaid ground, has submitted that the trial court has not

taken in to consideration of the aforesaid facts as such

impugned judgment requires interference, hence not

sustainable in the eyes of law.

Submission of the learned counsel for the state respondent:

17. While defending the judgment of conviction and

sentence the learned counsels appearing for the State raised

the following arguments in response to the grounds as

referred hereinabove:

(i) It is a case where the prosecution has been able to

prove the charge beyond all reasonable doubt.

(ii) Admittedly in the instance case the weapon used

in commission of crime and the blood-stained

earth, has not been seized but the prosecution is

based upon the cogent testimony of the

eyewitness, as such the non-seizure of the

aforesaid will not vitiate the trial. Learned counsels

for the State in order to fortify their submission

have relied upon the judgment rendered by

Hon'ble Apex Court in the case of C. Muniappan

and Ors. vs. State of Tamilnadu reported in

(2010) 9 SCC 567.

(iii) Further the testimony of C.W.1 has been

corroborated by the testimony of the investigating

officer and the doctor and hence merely because

some of the witnesses who ought to have been

examined have not been examined the trial will not

vitiate.

(iv) So far as the argument advanced on behalf of the

appellants that there cannot be conviction on the

basis of solitary eye witness, the submission has

been made that if the testimony of the eye witness

is fully trustworthy then there is no bar in passing

the judgment of conviction on the basis of the

testimony of the solitary eye witness. The learned

counsel for the State in order to fortify their

argument have relied upon the judgment rendered

by Hon'ble Apex Court in the case of Namdeo vs.

State of Maharashtra reported in (2007) 14 SCC

150.

(v) All the court witnesses have conclusively

supported the prosecution version, particularly,

C.W.1 who is the eyewitness of the alleged

occurrence, thus apart from informant, the other

witnesses have also conclusively corroborated the

prosecution version.

(vi) So far as the argument that there is non-

consideration of the testimony of defence witness,

D.W-1, but, if the testimony of the defence witness,

will be considered, it will be evident that even the

D.W-1 has corroborated the prosecution version as

would appear from the testimony as made by

D.W.-1 wherein he has stated that on 9-11-02 at

10.00 p.m, he heard sound of firing and went out

of his house and saw Informant (C.W.1) and P.W.9

weeping. They disclosed that someone had shot

fire to Onkar Pd. Jaisawal.

(vii) Learned counsel for the State has further

submitted that the solitary eye witness since has

gracefully made meticulous description of the

occurrence, which has been corroborated by

medical evidence and other witnesses including

Investigating Officer, as such the evidence of sole

eye witness is to be fully relied upon while proving

the charge against accused persons as it is settled

principle of law that quality of witness matters and

not the quantity of witness.

(viii) So far question of motive is concerned, it has

specifically been stated by C.W.1 in his testimony

that just before the said occurrence, the informant

had dashed the vehicle of the appellant, so it

cannot be said that motive is absent in the case at

hand.

(ix) So far, the issue of not sending the blood-stained

soil to the FSL is concerned, the case of

prosecution cannot be disbelieved on the aforesaid

score as an eye witness and other court witnesses

have fully supported the case of the prosecution.

(x) The Investigating Officer has corroborated the

occurrence by supporting the testimony of the

court witnesses as also the occurrence has been

corroborated by the medical evidence wherein the

Doctor has found the nature of injuries having

been caused by fire arm.

18. Learned counsels appearing for the State, based upon

the aforesaid premise, has submitted that the impugned

judgment does not suffer from any error, hence the instant

appeals are fit to be dismissed.

Analysis

19. We have heard learned counsel for the parties, perused

the documents available on record as also the finding

recorded by the trial court in the impugned judgment.

20. We have also gone through the testimonies of the

witnesses as available in the LCR as also the exhibits.

21. Learned trial court, based upon the testimonies of

witnesses, has passed the judgment of conviction convicting

the appellants under Section 302 of Indian Penal Code and

under section 27 of the Arms Act and sentenced them to

undergo imprisonment for life for the offence under Section

302 of the IPC.

22. This Court before considering the argument advanced

on behalf of the parties is now proceeding to consider the

deposition of witnesses, as per the testimony as recorded by

learned trial Court.

23. It needs to refer herein that out of the material

witnesses examined, PW-1 to P.W.10 have been declared

hostile by the prosecution.

24. P.W.1 Mahesh Kumar Agarwal has stated that in

November, 2002 in the night of CHHATH Festival KHARNA

day, he was in his house and in the morning, he came to

know that Onkar Pd. Jaisawal has been murdered. P.W.2

Rohit Sharma has also stated that Onkar Pd. Jaisawal was

murdered in Nov. 2002. P.W.3 Bablu Kumar Jaiswal

examined on 5-9-03 has said that Onkar Pd. Jaisawal was

murdered on KHIR day of CHHATH last year. P.W.6 Rasid

Tabrej had said that Onkar Pd. Jaisawal was murdered at

10.00 p.m. one year ago and he came to know in the next

morning. P.W.7 Junaid Alam had stated that Onkar Pd.

Jaisawal was murdered one year ago.P.W.8 Anil Kumar

Prasad who is son of Bhola Nath Prasad, Advocate in whose

house informant's family lived on rent had stated that 2

years ago at 10.00 p.m. deceased Onkar Prasad Jaisawal was

murdered which he came to know two days later when he

returned from Allahabad.

25. P.W.9 Sadan Prasad Jaisawal father of the deceased

examined and had stated that about 1/2 years ago in the

night of Kharna day at 10.00 p.m., while he was inside his

house, has heard sound of firing and when he came out, he

saw his son Onkar Pd. Jaisawal in injured condition having

sustained firm arm injury. He brought him to hospital, where

he was declared dead.

During cross-examination, he has admitted that he

lived in the house of Bhola Prasad, Advocate on rent.

26. P.W.10 Jawala Pd. Jaisawal is the brother of the

deceased had stated that at 10.00 p.m. on the KHARNA night

about 1/2 years ago while he was engaged in offering Prasad

to others, he heard sound of firing and consequently came

out and saw his brother Onkar Prasad Jaisawal in injured

condition. He was brought to hospital, where he was declared

dead.

27. P.W.11 Sanjay Prasad Jaisawal is the uncle of the

deceased. He has stated that Onkar Pd. Jaisawal was

murdered, which he came to know from P.W.10 Jawala Pd.

Jaisawal. Though P.W.11 has not been declared hostile by

the prosecution, his attention has been drawn towards

telephonic message to his regarding the name of accused

Guput Singh and Bablu, to which he has denied.

28. After closure of the prosecution case, Informant Niraj

Kumar Jaiswal was arrested and was produced in court by

the police on the basis of warrant of arrest issued against

him by the Court and he was examined as Court Witness

vide C.W.1.

29. He has stated that on 9-11-02 at 10.00 p.m. while he

was at his house, there was a knock on his door, which was

opened by his brother Onkar Pd. Jaisawal(deceased), who

disclosed that accused Guput Singh had come as he had a

talk with him just about 10-15 minutes ago in which he had

requested him to take PRASAD. He has further stated that he

and his father (P.W.9) followed him. His brother was brought

near the boundary wall of his house where he saw that

accused Guput Singh and accused Bablu shot fire at his

brother. Accused Bablu stated that this informant and others

should also be shot at to which accused Guput Singh said

that it will be seen later on and then accused Guput Singh,

Bablu Singh and others went away by Tata Safari Car. He

has further stated that they brought the injured to hospital

by scooter where he was declared dead.

30. Further he has testified that it was night of CHHAΤΗ

festival and he identified accused Bablu and Guput Singh in

the light of bulb. He also identified the two other accused

persons facing trial i.e. Upendra Singh and Munna Singh

alias Anjani Kumar Singh by face when they were standing in

the dock. He had also supported his statement recorded

under Section 164 Cr.P.C.(Ext.3).

31. During cross-examination, he has stated that he and

his family members lived in the house of Bhola Prasad,

Advocate on rent and under para 10 he has stated that his

rented house and residence of Bhola Prasad, Advocate had

common boundary wall. Further under para 12 he has stated

that when accused Guput Singh had come for the first time,

there were 10-12 persons, friends of deceased Onkar Pd.

Jaisawal taking PRASAD but when he came again second

time, they all had gone away. Under para 18, he had stated

that it was he and his father who had taken away Onkar Pd.

Jaisawal to the hospital.

32. C.W.2 Dr. A.K. Choudhary conducted autopsy of the

body of the deceased on 10-11-2002 at 8.00 a.m. just after

10 hours of the alleged occurrence. He found six circular

lacerated wounds with inverted margins with blackening of

margin of surrounding tissues of 1 cm diameters situated

over 2" left upper chest (one over pericardium and one close

to left shoulder joint) and four in abdomen all above

umbilicus. Two were close to the coastal arch in right side

close to mid line, one just above and right to umbilicus and

one on the left side of upper abdomen close to costal arch.

Wound of Exit

He also found 3 circular lacerated wounds with margin-

1.5 cm in diameter, placed over upper back (two on the right

side and one on left side) one exit wound was placed in the

middle of back one right side of mid-line.

33. He has stated that the injury on the left side was

smaller and a bullet was struck in it. Two bullets pulpable on

both sides of midline in midback, were taken out by incising.

34. He took out 3 bullets from these injuries and gave it to

the constable. Further according to him, all these injuries

were caused by fire arm like pistol and were sufficient to

cause instant death. He had testified that all these injuries

were possible by more than one shot. According to him death

took place within 6 to 36 hours.

35. During cross-examination he has stated that all the

injuries are possible by six shots and under para 10 of his

cross- examination he has stated that he cannot say if the

shots were fired by on single fire arm or different fire arms.

The said Post Mortem Examination Report was marked as

Ext.4.

36. C.W.3 Hare Ram Sharma, the investigating officer (I.O.)

of this case had stated that he lodged S.D. entry No.272 on

telephonic message (Ext.7) and then he went to hospital with

the officer-in-charge and recorded fardbeyan (Ext.2). He

prepared inquest Report (Ext.5) and took further statement of

the informant. He inspected the Place of occurrence, which is

situated on Durga Pathak Road at informant's Father' rented

house. He has stated that the place of occurrence is within

the boundary wall. From near to boundary wall, he seized 5

empty cartridges and one frontal portion of the pillets vide

seizure list (Ext.6). He has also produced the empty

cartridges and frontal portion of the pellet, which have been

marked as Material Ext. I and II. These empty cartridges and

pillets were brought to court in a paper packet. He has

further stated that he seized Motor car and motor-cycle vide

Ext.6/1, 6/2.

37. During cross-examination under para 14 he has stated

that the packet containing cartridges was wet due to sweat.

Under para 15, he has stated that no entry of MALKHANA

was there on the packet, though it was deposited on 10-11-

02 i.e. just the next day of the occurrence. Under para-26 he

had testified that he cannot say that cloth of informant and

his father have blood stain. Admittedly seized material so

recovered was not sent to Ballistic Expert.

38. Defence has examined D. W.1 Dipak Kumar Singhaniya,

who has stated that on 9-11-02 at 10.00 p.m, he heard

sound of firing then went out of his house and saw Informant

(C.W.1) and P.W.9 weeping. They disclosed that someone had

shot fire to Onkar Pd. Jaisawal.

39. During cross-examination, he has admitted that he saw

Onkar Pd. Jaisawal in injured condition. He has also stated

that it was KHARNA day of CHHATH festival and under para

9, he has stated that occurrence took place just by the side of

his house. He has stated under para 6 of his cross-

examination that he has not given any statement to the

police.

40. After due appreciations of evidences the Learned trial

court had found the charges were proved beyond reasonable

doubt against these appellants and accordingly they were

convicted under section 302 IPC and section 27 of the Arms

Act , against which the instant appeal has been preferred.

41. In the backdrop of the arguments, of the learned

counsel for the parties, this Court in the instant case is to

consider following issues: -

(i) Whether the material as has come in course of trial is

sufficient to attract the offence committed under Section

302 of the Indian Penal Code?

(ii) Whether the only sole testimony of an eyewitness is

sufficient enough to prove the alleged charges against

the appellants beyond all reasonable doubt.

(iii) Whether the appellants are entitled for acquittal in

absence of other cogent evidences?

42. Since all the aforesaid issues are inextricably

interlinked, the same are being decided hereinbelow by

considering them together.

43. This Court, in order to appreciate the submissions

advanced on behalf of the appellants with respect to the

culpability of the appellants, for the offence under Section

302 of the Indian Penal Code vis-à-vis the evidences adduced

on behalf of the parties, and further answering the issues as

referred above, deems it fit and proper to discuss settled

position of law which has been by settled by the Hon'ble Apex

Court.

44. The learned counsel has contended that the learned

trial court even in absence of corroboration of the testimony

of C.W.1 who is self-proclaimed sole eyewitness has convicted

the appellants which is bad in eyes of law.

45. In the aforesaid context It is settled proposition of law

that the judgment of conviction can be passed on the basis of

the testimony of sole eyewitness but the testimony of said

witness should be trustworthy and inspire confidence in the

mind of the Court.

46. There is no legal impediment in convicting a person on

the sole testimony of a single witness. That is the logic

of Section 134 of the Evidence Act, 1872. But if there are

doubts about the testimony, the courts will insist on

corroboration. In fact, it is not the number, the quantity, but

the quality that is material. The time-honoured principle is

that evidence has to be weighed and not counted. The test is

whether the evidence has a ring of truth, is cogent, credible

and trustworthy, or otherwise, reference in this regard may

be taken by the judgment rendered by Hon'ble Apex Court in

the case of Bipin Kumar Mondal v. State of W.B., (2010)

12 SCC 91 paragraphs 30 to 34 of the said judgment are

being referred hereunder as :-

"30. Shri Bagga has also submitted that there was sole testimony of Sujit Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8, could be treated merely as hearsay. The same cannot be relied upon for conviction.

31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court repelled a similar submission observing that: (SCC p. 371, para 9) "9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly

reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration."

In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

32. In Namdeo v. State of Maharashtra this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.

33. In Kunju v. State of T.N., a similar view has been reiterated placing reliance on various earlier judgments of this Court including Jagdish Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras.

34. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly."

47. Likewise, the Hon'ble Apex Court in the case of

Kuriya and another vs. State of Rajasthan, (2012) 10 SCC

433 has held as under: -

" 33. ---The Court has stated the principle that, as a general rule, the Court can and may act on the testimony of a single eyewitness provided he is wholly reliable and base the conviction on the testimony of such sole eyewitness.

There is no legal impediment in convicting a person on the sole testimony of a single witness."

48. The Hon'ble Apex Court in the case of Kalu @ Amit vs.

State of Haryana, (2012) 8 SCC 34 held as under:-

"11. We find no infirmity in the judgment of the High Court which has rightly affirmed the trial court's view. It is true that the accused have managed to win over the complainant PW 4 Karambir Yadav, but the evidence of PW 5 Ram Chander Yadav bears out the prosecution case. It is well settled that conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence. This witness has meticulously narrated the incident and supported the prosecution case. We find him to be a reliable witness."

49. The Hon'ble Apex Court in case of Sheelam Ramesh v.

State of A.P., (1999) 8 SCC 369 in Para -18 held as follows:-

"18. According to learned counsel for the accused appellants, though PW 3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eyewitness to the occurrence. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence."

50. It is thus evident from the aforesaid settled position of

law that the judgment of conviction can be passed on the

basis of the testimony of sole eyewitness but if there are

doubts about the testimony of the such sole eyewitness, the

courts will insist on corroboration and the test is whether the

evidence has a ring of truth, is cogent, credible and

trustworthy, or otherwise,

51. At this juncture this Court thinks fit to revisit the

testimony of the witnesses particularly the sole eyewitness

C.W.1, in the backdrop of aforesaid settled legal proposition.

52. The informant who has been examined as C.W.1 had

testified in his examination-in-chief that while he was at his

house, there was a knock on his door, which was opened by

his brother Onkar Pd. Jaisawal(deceased), who disclosed that

accused/appellant Guput Singh had come as he had a talk

with him just about 10-15 minutes ago in which he had

requested him to take PRASAD. He has further stated that he

and his father (P.W.9) followed him. His brother was brought

near the boundary wall of his house where he saw that

accused Guput Singh and accused Bablu shot fire at his

brother. He has further deposed that accused Bablu stated

that this informant and others should also be shot at to

which accused Guput Singh said that it will be seen later on

and then accused Guput Singh, Bablu Singh and others went

away by Tata Safari Car.

53. He had further stated that they brought the injured to

hospital by scooter where he was declared dead. Further he

has testified that it was night of CHHAΤΗ festival and he

identified accused Bablu and Guput Singh in the light of

bulb. He also identified the two other accused persons facing

trial i.e. Upendra Singh and Munna Singh @ Anjani Kumar

Singh by face when they were standing in the dock.

54. During cross-examination, he has stated that he and

his family members lived in the house of Bhola Prasad,

Advocate on rent and under para 10 he has stated that his

rented house and residence of Bhola Prasad, Advocate had

common boundary wall. Further under para 12 he has stated

that when accused Guput Singh had come for the first time,

there were 10-12 persons, friends of deceased Onkar Pd.

Jaisawal was taking PRASAD but when he came again second

time, they all had gone away. Under para 18, he had stated

that it was he and his father who had taken away Onkar Pd.

Jaisawal to the hospital.

55. Further this witness at paragraph 3 of his testimony

has testified about the motive of the alleged occurrence

wherein he had stated that he was riding on his Splender

bike and at the same time at about 9 P.M. he met with an

accident with Tata Safari of the appellant which was driven

by co-accused Bablu Singh near Panchmohan Chowk Bazar

and he dashed the Safari car of the co-accused and that is

the reason of the incident and due to this only they came at

10 p.m. and occurrence took place.

56. Thus, the most important thing which appears from the

FIR and the testimony of the CW.1 that this witness and his

father both have seen the occurrence and identified the

accused persons. C.W. 1 has categorically stated that his

father was also present at the place of occurrence and seen

the occurrence but surprisingly the father of deceased who

has examined as P.W.9 had stated at para-2 of his testimony

that he has not seen that who killed his son. Although he

was declared hostile by the prosecution but it needs to refer

herein that the evidence of a hostile witness cannot be

discarded as a whole, and relevant parts thereof which are

admissible in law, can be used by the prosecution or the

defence. Reference in this regard may be taken from the

judgment rendered by the Hon'ble Apex Court in the case of

C. Muniappan and Ors v. State of T. N reported in AIR

2010 Supreme Court 3718. The relevant paragraphs i.e. 82

to 83 of the aforesaid judgment are being quoted as under:

"82. In State of U. P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766 : (1996 AIR SCW 3468), this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543 : (AIR 2002 SC 3137 : 2002 AIR SCW 3619); Gagan Kanojia and Anr. v. State of Punjab (2006)

13 SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of U. P. AIR 2006 SC 951 : (2006 AIR SCW

421); Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 :(2007 AIR SCW 6843); and Subbu Singh v. State, (2009) 6 SCC 462 : (2009 AIR SCW 3937).

83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

57. Thus it is evident that the testimony of sole eyewitness

has not been substantiated by the father of deceased who

had been examined as P.W.9 AND this fact itself caused the

serious dent in the prosecution story. Further testimony of

P.W.9 has also raised suspicion on the trustworthiness of the

testimony of C.W.1.

58. Further in his testimony C.W.1 had stated about the

motive of the alleged occurrence wherein he had stated that

he was riding on his Splender bike and at the same time at

about 9 P.M. he met with an accident with Tata Safari of the

appellant which was driven by co-accused Bablu Singh and

since he dashed the Safari car of the co-accused, and due to

this only accused persons came at 10 p.m. and occurrence

took place.

59. In the aforesaid context it needs to refer herein that the

said motive has not been stated in the Fardbeyan by the

C.W.1 and further question arises herein that that if

informant had dashed the safari car of the appellant, the

occurrence of murder should have taken place with the

informant and not with his innocent brother i.e deceased.

60. However, this Court is conscious of the settled position

of law that when there is direct evidence of an acceptable

nature regarding the commission of an offence, the question

of motive cannot loom large in the mind of the court.

Reference in this regard may be taken from the judgment

rendered by the Hon'ble Apex Court in the case of State of

A.P. v. Bogam Chandraiah, (1986) 3 SCC 637. For ready

reference the relevant paragraph is being quoted as under:

"11. ----- Another failing in the judgment is that the High Court has held that the prosecution has failed to prove adequate motive for the commission of the offence without bearing in mind the well settled rule that when there is direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the court. Lastly, we find that the High Court has, evolved a theory of its own, without there being any material to support it, and premised that the occurrence must have taken place during darkness, and subsequently the respondents must have been implicated on account of suspicion."

61. Further the Hon'ble Supreme Court in the case of

Kumar Vs. State, represented by Inspector of Police

(2018) 7 SCC 536, at paragraph 33 it has been held as

under:

"33. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in the case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that 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 on the ground of absence of motive, if otherwise the evidence is worthy of reliance.----"

62. In the instant case, it is evident from the discussion

made in the preceding paragraph that evidence of C.W.1 on

the point of occurrence is not fully reliable therefore, in the

fact and circumstances of the instant case motive is very

much material. Since in the instant case the evidence of sole

eyewitness C.W.1 has not inspired much confidence in the

mind of this Court therefore, the aforesaid settled proposition

that if there is direct evidence of an acceptable nature

regarding the commission of an offence, the question of

motive cannot loom large in the mind of the court, will not be

applicable herein.

63. Further, the learned counsel for the appellants has

contended that there is contradiction and improvement in the

testimony of the informant vis-à-vis the fardbeyan. It has

been submitted that, the registration no. of vehicle as

mentioned in fardbeyan which was used in commission of

crime is not correct and the said registration number belongs

to bike.

64. The learned counsel for the appellants has further

submitted that as per the fardbeyan the informant C.W.1 was

standing in the door of his house and he has seen the

occurrence with the help of one street light but during

examination-in-chief he had tried to improve this version and

stated that he and his father(P.W.9) had followed Onkar Pd.

Jaisawal(deceased) and saw that accused/appellants Guput

Singh and Bablu Singh had shot his brother by fire arms.

Thus, in the later stage he has tried to improve the

prosecution case which is not permissible.

65. In the aforesaid context this court is conscious with the

settled position of law that minor discrepancy cannot vitiate

the prosecution story, as has been held by Hon'ble Apex

Court in the case of Bharwada Bhoginbhai Hirjibhai Vs.

State of Gujrat [(1983) 3 SCC 217], in particular at

paragraph nos. 5 which reads as under:

"5. ...The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :

"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised.

The mental faculties therefore cannot be expected to be attuned to absorb the details.(3) The powers of observation differ from person to person.What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess- work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

66. Further, the Hon'ble Apex Court in the case of Mukesh

Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC

694, at paragraph-8, it has been held as under:

"8. While the slight difference in the initial version of the prosecution and the FIR version has been reasonably explained by the cross-examination of PW 6, it is our considered view that minor discrepancies, embellishments and contradictions in the evidence of the eyewitnesses do not destroy the essential fabric of the prosecution case, the core of which remains unaffected. Even if we have to assume that there are certain unnatural features in the evidence of the eyewitnesses the same can be reasonably explained on an accepted proposition of law that different persons would react to the same situation in different manner and there can be no uniform or accepted code of conduct to judge the correctness of the conduct of the prosecution witnesses i.e. PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and the deceased, in our considered view, by itself, would not discredit the testimony of the said witnesses. There is nothing in the evidence of PWs 1 and 2 which makes their version unworthy of acceptance and their testimony remains unshaken in the elaborate cross- examination undertaken."

67. Thus, from the aforesaid proposition of law it is evident

that minor discrepancies, embellishments and contradictions

in the evidence of the eyewitness do not destroy the essential

fabric of the prosecution case, the core of which remains

unaffected. But at the same time, it is equally settled that the

discrepancies which go to the root of the matter and shake

the basic version of the witnesses that can be annexed with

due importance. More so when there is need of corroboration

of the testimony of eyewitness from other available evidences.

68. In the backdrop of aforesaid settled position of law this

Court is again adverting to the testimony of sole eyewitness

C.W1. wherein he had stated that the vehicle in question

which was used in the alleged commission of crime is

numbered as JH-03A-2181 as per FIR but as per

Investigating Officer (C.W.3) the said number belongs to a

motorcycle and C.W.3 has seen the Tata Safari of the

appellant from his house numbered as JH-14A-2181, thus,

there is significant contradiction in the evidence of C.W.1

informant and that goes to erode the credibility about the

genesis of the prosecution story that the appellant came in

Tata Safari car JH-03A-2181.

69. Further, the sole eyewitness CW1 had stated in his

testimony that the place of occurrence is in front of his house

and per his father (P.W.9) and as per the statement of C.W.1

after series of fire injury the deceased was oozing out with

blood but as per the statement of C.W.3, the I.O. in para 3 of

testimony had stated that no blood stain was found from the

place of occurrence, thus this contradiction amount to major

contradiction inter-se between the prosecution witnesses.

70. Further, Defence has examined one witness i.e. D. W.1

Dipak Kumar Singhaniya, and as per para-3 of testimony of

C.W.3, the place of occurrence where the shootout took place

was in front of the house of the Dipu Singhania (D.W.1) and

C.W.3 in para 24 of his testimony had stated that the house

of Dipu Singhania whose statement he has not taken is

around 10 feet away from the house of the deceased. This

defence witness had stated that he heard sound of firing went

out of his house and saw Informant (C.W.1) and P.W.9

weeping. They disclosed that someone had shot fire to Onkar

Pd. Jaisawal. This witness has stated in para-2 and 3 of his

testimony that deceased was taken to the hospital in a

Rickshaw but the informant C.W.1 in his evidence had stated

that the deceased was taken to hospital in his scooter.

71. The ground has been taken by the learned counsel for

the appellant that the deposition of defence witness has not

been considered by the learned trial court.

72. In the aforesaid context it needs to refer herein that as

per the law settled the defence witness is also to be given

equal weightage as is to be given to the prosecution witnesses

as has been held by Hon'ble Apex Court in the case

of Munshi Prasad v. State of Bihar, reported in (2002) 1

SCC 351 at para 3 which reads hereunder as:--

3. Without attributing any motive and taking the evidence on its face value, therefore, it appears that the place of occurrence was at 400-500 yards from the place of Panchayat and it is on this piece of evidence, the learned advocate for the State heavily relied upon and

contended that the distance was far too short so as to be an impossibility for the accused to be at the place of occurrence -- we cannot but lend concurrence to such a submission : a distance of 400-500 yards cannot possibly be said to be "presence elsewhere" -- it is not an impossibility to be at the place of occurrence and also at the Panchayat meet, the distance being as noticed above :

the evidence on record itself negates the plea and we are thus unable to record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution -- a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses."

73. Further, the Hon'ble Apex Court has reiterated the same

view in a judgment rendered in the case of Mahendra

Singh v. State of Madhya Pradesh reported in (2022) 7

SCC 157.

74. This Court in order to consider the aforesaid argument

has perused the impugned judgment wherefrom it is evident

that defence witness, namely, Deepak Kumar Singhania @

Dipu has been examined as D.W.-1 and from his testimony it

is evident that in front of his house the occurrence took place

and this witness has stated that he has not seen anyone but

the learned trial court failed to appreciate the importance of

the statement of D.W.1 because the I.O. C.W.3 has

categorically stated that the occurrence took place in front of

the house of Dipu Singhania and he further stated that he

has not taken the statement of Dipu Singhania,

therefore, the contention of the learned counsel for the

appellants that the learned trial court has not considered all

aspects of the deposition of the defence witness D.W.1,

appears to be correct and his deposition before the trial court

becomes very significant and relevant in appreciation of the

truthfulness of the alleged sole eye witness C.W.-1 which

becomes highly doubtful in view of deposition of I.O. (C.W-3)

vis-à-vis deposition of DW.

75. Further the learned counsel for the appellants has

taken the ground that in absence of the ballistic report of the

pillets and the empty cartridges, the prosecution has totally

failed to prove the case and in such case the conviction of the

appellants under section 27 of the Arms Act is bad and fit to

be set aside.

76. In the aforesaid context there is no iota of doubt that it

would have been certainly better if the investigating agency

had sent the empties to the Forensic Science Laboratory for

comparison.

77. Admittedly in the instant case the Investigating Officer

did not do some part of investigation, which he was required

to do and in the fact and circumstances of the case the

faulty investigation made by the Investigating Officer

prejudice the accused and can be fatal for the prosecution

case.

78. Herein, in the instant case, if the pillets and other

incriminating articles were not sent for its examination to

Forensic Science Laboratory, the same vitiate the prosecution

story since the case has not fully been proved by the evidence

of the informant, and the testimony of the C.W.1 has not

been corroborated by the cogent evidences which has already

been discussed in the preceding paragraphs.

79. In the context of non-availability of ballistic report this

Court would like to revisit the testimony of C.W.3 (I.O). He

had testified that from near to boundary wall i.e alleged place

of occurrence, he seized 5 empty cartridges and one frontal

portion of the pillets vide seizure list (Ext.6). He has also

produced the empty cartridges and frontal portion of the

pellet, which have been marked as Material Ext. I and II.

80. During cross-examination under para 14 he has stated

that the packet containing cartridges was wet due to sweat.

Under para 15, he has stated that no entry of MALKHANA

was there on the packet, though it was deposited a 10-11-02

i.e. just on the next day of the occurrence and he admitted

that material recovered was not sent to Ballistic Expert.

81. Thus, from the testimony of C.W.3 it is evident that the

pillets as claimed to be recovered was also not sent for

forensic test by a ballistic expert and till date the weapon

used in alleged commission of crime by the appellants is not

recovered. Further at para 15, C.W.3 had stated that no entry

of MALKHANA was there on the seized packet of pillets

though it was deposited on 10-11-02 just a day after the

alleged occurrence. Since it is serious lapse on behalf of the

prosecuting agency, which creates serious doubt regarding

the credibility of the prosecution story.

82. The Hon'ble Apex Court in the case of Ram Singh Vs.

State of Utter Pradesh (2024) 4 SCC 208 has taken note of

non-examination of the ballistic expert and also non

reliability of the eyewitness and has held that the appellant

should be given the benefit of doubt because the prosecution

could not prove his guilt beyond all reasonable doubt. For

ready reference the relevant paragraph of the aforesaid

judgment is being quoted as under:

25. At this stage, what is noticeable is that the weapon of offence i.e. the country-made pistol used by the accused in the offence, could not be recovered by the police and therefore not exhibited. Thus, the main material evidence i.e. the weapon of offence was not exhibited. In the seizure memo, it was mentioned that a 12 bore cartridge

was lying on the cot and along with the tikli of the cartridge which was stuck on the wound of the deceased, were seized by the police. On the other hand, in the evidence of the doctor, PW 6, as well as from the post-

mortem report, it has come on record that 55 small pellets were taken out from the body of the deceased during post-mortem. The bullet wound was bone-deep which clearly reveals that the deceased was shot at from close range. In his evidence, PW 4 Sub-Inspector B.D. Verma deposed that during preparation of the inquest report, one tikli and 12 pellets were seized from the wound of the deceased. The pellets as well as the tikli of the cartridge were not sent to any ballistic expert, as a result of which there is no ballistic report on the basis of which it could be said for sure that the pellets found outside the body and from within the body could be traceable to the tikli of the 12 bore cartridge which in turn could be traced to the country-made pistol from which the shot was allegedly fired by the appellant. There is no explanation of the prosecution regarding the 55 pellets retrieved from the body of the deceased during post-mortem; whether those could be linked to the 12 bore cartridge and the tikli. Importantly, the country- made pistol was never recovered. The prosecution has not said anything in this regard. That apart, as per the version of PW 4, the bloodstained clothes of the deceased which were seized were sent to the chemical examiner but the report from the chemical examiner was not received till the date and time of his deposition.

26. From the above, it is evident that there are glaring inconsistencies in the prosecution version which have been magnified by the absence of the testimony of the material witnesses and the ballistic report coupled with the non-recovery of the weapon of crime.

27. In Munna Lal v. State of U.P. [Munna Lal v. State of U.P., (2023) 18 SCC 661 : 2023 SCC OnLine SC 80] , this Court opined that since no weapon of offence was seized

in that case, no ballistic report was called for and obtained. This Court took the view that failure to seize the weapon of offence on the facts and in the circumstances of the case, had the effect of denting the prosecution story so much so that the same together with non-examination of material witnesses constituted a vital circumstance amongst others for granting the appellants the benefit of doubt.

28. On the aspect of non-examination of ballistic expert and its impact on the prosecution case, one of the earliest decisions of this Court was rendered in Gurucharan Singh v. State of Punjab [Gurucharan Singh v. State of Punjab, 1962 SCC OnLine SC 42 : AIR 1963 SC 340] . This Court observed that there is no inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused by a gun and those prima facie appeared to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. However, in what cases the examination of a ballistic expert is essential for the proof of the prosecution case must naturally depend upon the circumstances of each case. This Court held as under : (Gurucharan Singh case [Gurucharan Singh v. State of Punjab, 1962 SCC OnLine SC 42 : AIR 1963 SC 340] , AIR p. 346, para 19)

"19. ... These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the

prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case."

29. This issue was again examined by this Court in Sukhwant Singh v. State of Punjab [Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 : 1995 SCC (Cri) 524] . In that case, this Court observed that though the police had recovered an empty cartridge from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution did not send the recovered empty cartridges and the seized pistol to the ballistic expert for examination and expert opinion. This Court was of the view that if such opinion would have been called for, comparison could have been made which in turn could have provided link evidence between the crime and the accused. It was noted that this again was an omission on the part of the prosecution for which no explanation was furnished. It was thereafter that this Court declared as follows : (Sukhwant Singh case [Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 : 1995 SCC (Cri) 524] , SCC p. 377, para 21)

"21. ... It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the

ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent."

30. Thus, in Sukhwant Singh case [Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 : 1995 SCC (Cri) 524] , this Court emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert becomes very important to connect the crime cartridge recovered during the investigation to the firearm used by the accused with the crime. Failure to produce expert opinion in such cases affects the creditworthiness of the prosecution case to a great extent.

33. In Pritinder Singh v. State of Punjab [Pritinder Singh v. State of Punjab, (2023) 7 SCC 727 : (2023) 3 SCC (Cri) 290] , this Court in the facts and evidence of that case held that conviction could not be sustained. That apart, from not collecting any evidence as to whether the gun used in the crime belonged to the appellant or not, even the ballistic expert had not been examined to show that the wad and pellets were fired from the empty cartridges of the appellant. In that case which was based on circumstantial evidence, it was held that when there was serious doubt as to credibility of the witnesses, the failure to examine ballistic expert would be a glaring defect in the prosecution case.

83. Thus from the aforesaid settled position of law it is

established that when there is direct eyewitness account

which is found to be credible, omission to obtain ballistic

report and non-examination of ballistic expert may not be

fatal to the prosecution case but if the evidence tendered

including that of eyewitnesses do not inspire confidence or

suffer from glaring inconsistencies coupled with omission to

examine material witnesses, the omission to seek ballistic

opinion and examination of the ballistic expert may be fatal

to the prosecution case.

84. Applying the above proposition to the facts of the

present case, we find that the evidence tendered by the

eyewitnesses C.W.1 suffer from serious lacunae. Thus, their

evidence cannot be said to be credible which has already

been discussed in the preceding paragraphs. On the whole,

the evidence tendered on behalf of the prosecution cannot be

said to be foolproof so much so that non-recovery of the

weapon of offence, non-obtaining of ballistic opinion and non-

examination of ballistic expert would be immaterial.

85. In such circumstances, it cannot be said that the

prosecution could prove the accusation against the appellant

beyond all reasonable doubt. As a matter of fact, on the same

set of evidence, the trial court gave the benefit of doubt to the

other accused persons namely Upendra Singh and Munna

Singh alias Anjani Kumar Singh .

86. It needs to refer herein that the law is well settled that

in the case of eye witness, who, if supports the prosecution

version, the conviction is to be there, but the law is equally

settled that it is the duty of the prosecution to substantiate

the charge said to be proved without any iota of doubt and if

there is any doubt, then the benefit of such doubt is to be

given to the accused person.

87. The Hon'ble Apex Court in catena of decision has

propounded the proposition that in the criminal trial, there

cannot be any conviction if the charge is not being proved

beyond all reasonable doubts, as has been held in the case of

Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in

(2000) 3 SCC 454, wherein, at paragraph-22, it has been

held as under:-

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

88. Likewise, the Hon'ble Apex Court in the case of

Krishnegowda & Ors. Vrs. State of Karnataka, reported

in (2017) 13 SCC 98, has held at paragraph-26 as under:-

"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

89. Further, it is the settled proposition of law that if the

result of cross-examination of prosecution witnesses,

accused could establish the probability of his defence and

if probability was established by accused, it would really

entitle him to the benefit of doubt, reference in this regard

may be made to the judgment rendered by the Hon'ble

Apex Court in the case of Bhikam Saran Vrs. State of

U.P., reported in (1953) 2 SCC 560, wherein, at

paragraph-16, it has been held as under:

"16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross- examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability

would prevent the prosecution case being established beyond reasonable doubt."

90. Further, the principle of 'benefit of doubt' belongs

exclusively to criminal jurisprudence. The pristine doctrine

of 'benefit of doubt' can be invoked when there is

reasonable doubt regarding the guilt of the accused,

reference in this regard may be made to the judgment

rendered by the Hon'ble Apex Court in the case of State of

Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC

96, wherein, it has been held at paragraph-7 as under: -

"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final

end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

91. Likewise, the Hon'ble Apex Court in the case of

Krishnegowda v. State of Karnataka (Supra) at paragraph-

32 and 33 has held as under:-

"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -

-'"

92. It needs to refer herein that The Hon'ble Apex Court,

in the case of Allarakha K. Mansuri v. State of

Gujarat reported in (2002) 3 SCC 57 has laid down the

principle that the golden thread which runs through the

web of administration of justice in criminal case is that if

two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other

to his innocence, the view which is favourable to the

accused should be adopted, for reference, paragraph 6

thereof requires to be referred herein which reads

hereunder as :-

"6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. --"

93. It needs to refer herein before laying down the

aforesaid view, the Hon'ble Apex Court in the case of

Sharad Birdhichand Sarda v. State of Maharashtra

reported in (1984) 4 SCC 116 has already laid down the

same view at paragraph 163 which is required to be

referred which read hereunder as

"163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

94. This Court, after having discussed the factual aspect

and legal position and considering the finding recorded by

the learned trial Court, is of the view that the learned trial

Court neither appreciated nor giving thoughtful

consideration to the testimony of sole eye witness (C.W. 1) as

well as other evidences available on record has come to the

conclusion that the prosecution has been able to prove the

charge beyond all shadow of doubt against the present

appellants, therefore, the impugned order requires

interference by this Court.

95. On the basis of the FIR, wrong number of Tata Safari

car, in absence of recovery of weapons used in the crime, in

absence of blood stain in the crime scene, in absence of

credible evidence and proper identification and, as per the

testimony of C.W.1, he and his father had seen the

occurrence which is absolutely doubtful as his father says

that he has not seen who had killed his son, this court is of

the considered view that the present conviction of the

appellants on the solitary doubtful witness is bad and fit to

be set aside.

96. Accordingly, the impugned order of conviction dated

07.12.2004 and Order of sentence dated 08.12.2004, passed

by learned Sessions Judge, Palamau, in Sessions Trial No.61

of 2003 is hereby quashed and set aside.

97. Consequently, the instant appeals stand allowed.

98. The appellant of Cr. Appeal (DB) No.81 of 2005 namely

Guput Singh @ Gupteshwar Prasad Singh and the appellant

of Cr. Appeal (DB) No.144 of 2005, namely, Bablu Singh @

Abhimanyu Kumar are hereby discharged from all criminal

liabilities. Since the aforesaid appellants are on Bail they are

discharged from the liability of the bail bonds.

99. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.

(Sujit Narayan Prasad, J.) I agree.

       (Navneet Kumar, J.)               (Navneet Kumar, J.)

Jharkhand High Court, Ranchi
Dated, the 18th February, 2025.
Birendra /   A.F.R.