[Cites 21, Cited by 0]
Jharkhand High Court
997 vs The State Of Bihar (Now Jharkhand) on 12 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 508 of 1998(P)
[Against the Judgment of conviction dated 03.07.1998 and Order
of sentence dated 04.07.1998 passed by learned 2nd Additional
Sessions Judge, Godda, in Sessions Case No.138 of 1997/43 of
1997]
Mohanlal Tudu, son of Sri Rawan Tudu, resident of Village-
Harkatta, Police Station-Boarijore, District-Godda.
... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. Manoj Kumar Sah, Advocate
For the Respondent : Mr. Abhay Kumar Tiwari, A.P.P.
.....
C.A.V. on 12.02.2026 Pronounced on 12/03/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal is directed against the Judgment of
conviction dated 03.07.1998 and Order of sentence dated
04.07.1998 passed by learned 2nd Additional Sessions Judge,
Godda, in Sessions Case No.138 of 1997/43 of 1997 by
which the appellant has been convicted under section 302 of
the Indian Penal Code (IPC) and has been directed to undergo
rigorous imprisonment for life.
Factual Matrix
2. 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
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as per the allegation made in the First Information Report
reads hereunder as :-
The informant Marangmai Hanada, widow of late
Lopsa Soren of village Harkatte, gave her fardbeyan on
14.04.97 at 7:00 A.M. alleging that there is no male
member in her house and she along with her widowed
daughter Balamai Soren and her four children live in the
house. For last 2 to 3 years, she had kept Basta
Murmu(deceased) as servant.
In the last night Basta Murmu had slept in the
Verandah. At about 12 to 1 'O' clock in the night she
woke-up hearing sound of "Khat Khat" then she heard
the sound of somebody fleeing away. Thereafter, she saw
Basta Murmu lying senseless and found that his head
was smashed and blood was oozing out.
The villagers came there on hulla and the injured
Basta Murmu was being taken for treatment and the in
the way the Officer-in-charge, Lalmatia Police Station
reached near Mohanpur Chowk and there she gave her
fardbeyan which was recorded by Sri N.K. Soren, S.I.,
Lalmatia Police Station. This fardbeyan has been marked
as Ext.-3 in this case.
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The second fardbeyan which was recorded by S.I. Sri
Nageshwar Das P.W. -15, on 14.04.1997 at 12:00 at
Sadar Hospital which has been marked as Ext.-5. In this
exhibit-5 the said Marangmai Hansda, informant has
stated that in the night Basta Murmu was sleeping with
Dhena Marandi.
3. On the basis of fardbeyan of the informant, Boarijore
(Lalmatia) P.S. Case No.22 of 1997 dated 14.04.1997 (G.R.
No.230 of 1997) was registered against the unknown accused
persons under Section 307 of the I.P.C. which was
subsequently converted to a case U/s 302 I.P.C.
4. After investigation, the police submitted charge sheet
against the appellant.
5. After cognizance of the offence, the case was committed
to the Court of Sessions. Charge under Sections 302 I.P.C.
was framed to which the accused pleaded not guilty and
claimed to be tried.
6. The prosecution has altogether examined 15 witnesses,
namely, P.W.-1 Chotta Shyamlal Tudu P..-2 Dez Marandi,
P.W.-3 Sanjhla Tudu, P.W.-4 Anup Murmu P.W.-5
Marangmai Murmu, P.W.-6 Bahamai Marandi, P.M.-7 Betka
Hansda, P.W.-8 Balemai Soren, P.W.-9 Marangmai Hansda
(informant), P.W.-10 Ram Soren, P.W.-11 Dhena Murmu,
P.W.-12 Dr. Arvind Kr.Singh, P.W-13 Nav Kr. Soren (I.O.),
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P.W.-14 Dr. Ajay Kr. Jha, who has performed postmortem
examination and P.W.-15 Nageshwar Das.
7. The Defence has not examined any witness in support
of his case.
8. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused person, found the
charges levelled against the appellant proved beyond all
reasonable doubts.
9. Accordingly, the appellant has been found guilty and
convicted for the offence punishable under Section 302 of the
Indian Penal Code.
10. The aforesaid order of conviction and sentence is
subject matter of instant appeal.
Submission of the learned counsel for the appellant:
11. Learned counsel for the appellant 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.
12. The following grounds have been taken by the learned
counsel for the appellant in assailing the impugned judgment
of conviction: -
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(i) The appellant has been falsely implicated in this
case and the prosecution case suffers from several
infirmities and improbabilities.
(ii) The ground has been taken that the conviction is
based upon the evidence of self-proclaimed eye
witness i.e. PW.2 without having been fully
corroborated by the other evidences and as such
conviction cannot be said to be based on sound
reasoning.
(iii) There are material contradictions in the
testimonies of the witnesses.
(iv) Further, no concrete motive has been brought
forward by the prosecution and in the absence of
any motive it is not safe to rely upon the evidence
of witnesses.
(v) Further, as per the opinion of the doctor who had
conducted postmortem upon the dead body of the
deceased persons, the injuries were caused by
hard and blunt substance like lathi and rod etc.
and that he has not found any injury caused by
sharp cutting weapon but the PW-2 has stated in
his deposition that he has seen the appellant
assaulting the deceased with sharp cutting
weapon.
(vi) The learned trial court should have acquitted the
appellant because P. W. 2, who claims to be the
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eye witness, did not disclose the name of the
appellant when the Fardbeyan was recorded and,
as such, the F.I.R. was instituted against
unknown.
(vii) The learned trial court should not have convicted
the appellant because prosecution story is that no
male members were present at the time of
occurrence but PW-2, in his evidence, has stated
that he was sleeping with the deceased.
(viii) The informant is not the eye witness in this case.
According to First Information Report no male
members were in her house. The Fardbeyan was
recorded at 14.04.1997 at 7:00 A.M. The informant
again developed the prosecution story stating that
on fateful night Dhena Murmu (P.W.11) was
sleeping with the deceased Basta Murmu but
Dhena Murmu has not supported this statement,
rather, he has stated in his evidence that he had
gone to the village and stayed there only for 10
minutes.
(ix) It has been submitted that Dez Marandi (P.W. 2)
claims to be sleeping in the house of the informant
alongwith others and had seen the accused
assaulting to the deceased with sharp cutting
weapon, but surprisingly P.W.2 did not disclose
the name of the appellant to the informant or to
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any other persons sleeping in the night or when
the Fardbeyan was recorded. Therefore, the story
of the prosecution appears to be doubtful, thus, on
the basis of statement of P. W.-2, the appellant
should not have been convicted.
(x) It has come in testimonies of witnesses that P. W.2
had gone to other village i.e. Gobra, to inform the
death of Basta Murmu to uncle of the deceased but
therein also he did not disclose the name of the
appellant to uncle of the deceased. The brother of
the deceased was not present in the house, so he
went to other village i.e. Basant Roy, but there also
PW-2 did not disclose the name of the
appellant/accused.
(xi) The occurrence took place on 13.04.1997 and PW-
2 was examined by the police on 16.04.1997, but
prior to 16.04.1997 he did not disclose the name of
the appellant while he claims to be the eye witness.
The appellant should have been acquitted on this
ground alone.
(xii) There are inter-se vital contradiction in the
statement of PW-2 who, in his deposition, has
stated that the appellant assaulted the deceased
with Lathi but same time he says that the
appellant assaulted the deceased with sharp
cutting weapon.
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(xiii) P.W. 2 in his deposition has stated that P.W.7
Betka Hansda, P.W.3 Sanjhla Tudu and P. W. 4
Anup Murmu were also sleeping in the house but
none of these witnesses has supported the
prosecution story.
(xiv) None of the witness except P.W.2, have seen the
occurrence and the witness who claims to be the
eye witness cannot be said to be the eye witness to
the offence.
13. The learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that, it is a case where the
benefit of doubt should be given to the accused and thus, the
judgment of conviction which has been passed against the
appellant is fit to be interfered with.
Submission of the learned counsel for the State:
14. Per contra, Mr. Abhay Kumar Tiwari, learned Additional
Public Prosecutor, appearing for the State, has submitted by
taking the following grounds in defending the impugned
judgment:
(i) It is a case where the prosecution has been able to
prove the charge beyond all reasonable doubt,
since as per the eyewitnesses the assault was
inflicted upon the deceased person by this
appellant.
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(ii) The prosecution witnesses have conclusively
supported the prosecution version.
(iii) Learned counsel for the State has further
submitted that the eye witness since has made
meticulous description of the occurrence, which
has been corroborated by medical evidence and
other witnesses, as such the evidence of eye
witness is to be fully relied upon while proving the
charge against accused person.
(iv) The occurrence has been corroborated by the
medical evidence wherein the Doctor has found the
nature of injuries having been caused by hard and
blunt substance as narrated by the eye witness.
15. Learned counsel for the State respondent, on the basis
of the aforesaid grounds, has submitted that the impugned
judgment suffers from no infirmity and needs no interference.
Analysis
16. 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.
17. We have also gone through the testimonies of the
witnesses as available in the trial court records as also the
exhibits.
18. This Court before considering the argument advanced
on behalf of the parties is now proceeding to consider the
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deposition of witnesses, as per the testimony as recorded by
learned trial Court.
19. In this case the prosecution has examined altogether 15
witnesses. The extracts of their depositions are being referred
herein :-
P.W.-1 Chotta Shyamlal Tudu has stated that on the
day of occurrence, he along with Basta Murmu (deceased) had
gone to the house of Bahamai Hembram. Basta Murmu and
Bahamai Hembram were in Love, but Bahamai was not found
in her house so they returned. He went to his house and
Banta Murmu went to his house. At about 12 o'clock in the
night on hearing halla this witness went to the place, that is,
the house of informant and saw Basta Murmu senseless and
blood was oozing out from his head. At paragraph-23 he has
stated that Bahamai is Saali of Mohanlal Tudu, the accused,
and at paragraph-4 he has stated that Mohanlal Tudu resides
in his Sasural. So the evidence of this witness is on the point
of love affairs of the deceased with the Saali of the accused
Mohanlal Tudu namely with Bahamai Hembrum. He had only
seen Basta Murmu injured and in a state of senselessness.
P.W-2 Dez Marandi. This witness is aged about 18
years and is unable to understand Hindi and knows only
Santhal language, therefore and interpreter was appointed to
interpret the Santhal language. This witness has stated that
on the day of occurrence, that is, in the night of Sunday,
Basta Murmu, Betka Hansda P.W.-7 and this witness were
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sleeping on the ground together and Sanjhla Tudu P.W.-3 and
Anup Murmu P.W.-4 were sleeping on a Chowki. At
paragraph-2 he has stated that he had seen a man assaulting
Basta Murmu by Kulhari and seeing the incident he became
frightened. At paragraph-13 this witness has clarified and
stated that he had seen Beta Ram Tudu assaulting Basta
Murmu with lathi and pointing the accused he has stated that
he knows the accused in the name of Beta Ram Tudu. At
paragraph-5 he has stated that Mohanlal Tudu (accused)
called him to his house and told him not to disclose his name
to any one because he had seen him assaulting Basta
Mummu, but this witness disclosed the name of accused
before his sister Bahamai Marandi P.W.-6 and told her that
Mohanlal Tudu has asked him not to disclose his name. At
paragraph-6 this witness has stated when the accused
assaulted Basta Murmu he was not asleep as such he saw and
recognised the accused. At paragraph-8 he has identified the
accused in the dock and said that this is the person whom, he
had seen on the day of occurrence assaulting with lahti.
P.W-3 Sanjhla Tudu has stated that in the night of
Sunday in the month of April 1997 he was sleeping on Chowki
with Anup Murmu in the house of Marangmai Hansda, the
informant. He has stated that hearing halla he woke-up and
saw there was bleeding from the head of Basta Murmu who
was senseless.
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P.W.-4 Anup Murmu has stated that he was sleeping on
a Chowki with Sanjhla Tudu (P.W.-3). This witness has further
stated that Dez Marandi (P.W.-2), Basta Murmu (deceased)
and Betka Hansda P.W.-7 were sleeping on the ground. In
paragraph-2 he has stated that he woke-up hearing the
shouting of Dez Marandi. At paragraph-3 he has stated that
there was much bleeding from the head of Basta Murmu. This
witness has stated that Basta Murmu was servant of
Marangmai Hansda since last 2 years. This witness, at
paragraph-5, has stated that Marangmai Hansda, the
informant, is his mother-in-law. Basta Murmu was taken to
Mahgama Hospital from where he was referred to Godda
Hospital where he died.
At paragraph-9 in his cross-examination this witness
has stated that deceased resides in the house of informant
since last one and half years and on that day Dez Marandi
P.W.2 had come for sleeping. In paragraph-10 he has repeated
that he and Sanjhla were sleeping on a Chowki and Dez
Marandi, Basta Murmu and Betka Murmu were sleeping on
the ground in Varandha. In paragraph-11 of cross-
examination this witness has stated that it was a moon day
night, so the evidence of this witness is corroborative of the
fact that on the day of occurrence Dez Marandi, Basta Murmu,
Sanjhla Tudu, Anup Murmu and Betka Hansda were present
in the house of the informant. Further, at paragraph-2 he has
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stated that Dez Marandi had seen the person who had
assaulted Basta Murmu.
P.W.-5 Marangmai Murmu. This witness has stated at
paragraph-2 that 15 days before the incident Basta Murmu
had told her that there was a quarreled between Basta Murmu
and Mohanlal Tudu because of Bahamai Marandi with whom
Basta Murmu had love affairs. In para-3 has she has stated
that Basta Murmu told her that Mohanlal Tudu had
threatened (intimidated) to kill him. In paragraph-10 this
witness has stated that the head was smashed.
P.W.-6 Bahamai Marandi, sister of Dez Merandi (P.W. -
2). This witness is unable to speak or understand the local
language or hindi as such an interpreter was appointed. This
witness at paragraph-1 has stated that the occurrence took
place in the night of Sunday and Dez Marandi that is, (her
brother) had told her that acused had assaulted the servant of
Marangmai Hansda. In the same paragraph she has stated
that she is not remembering the name of servant of
Marangmai Hansda and also she is unable to say as to where
he was treated. In paragraph-4 this witness has stated that
Dez Marandi had told her that accused had called him and
told him not to disclose his name. In para-5 she has stated
that on that day Dez Mamandi was sleeping with Basta
Murmu. In the same paragraph again she has repeated that
Dez Marandi had told her that he had recognized the accused
when the accused was fleeing away.
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P.W.-7 Betka Hansda. This witness has only stated that
he had gone to the house of Marangmai Hansda to invite her
in Sradh. In the night Basta Murmu, this witness and Dez
Marandi were sleeping on the ground. In the night hearing
halla of Dez Marandi, he woke-up and saw the injury on the
head of Basta Murmu. Dez Marandi told this witness that this
accused had assaulted. There was severe bleeding from the
head of Basta Murmu. This witness has further stated that he
had heard in the village that Mohanlal Tudu was saying Dez
Marandi not to disclose his name before police. In para-6 he
has stated that Dez Harandi had recognized the accused and
had told him his name and also Dez Marandi had told him
that the accused had called him in his house and asked him
not to disclose his name before police. In the village this
witness had heard about love of Basta Murmu and Bahamai
and there was a quarrel between the accused and the
deceased. In the same paragraph-8 this witness has stated
that he had seen Dez Marandi for the first time and after that
he had no talk with Dez Marandi.
P.W.-8 Balemai Soren, the daughter of the informant.
This witness at paragraph-4 has stated that he had seen
Mohanlal Tudú assaulting Basta Murmu and she had
recognized him while he was assaulting Basta Murmu. At
paragraph-2 she has stated that Basta Murmu, Dez Marandi
and Betka Murmu were sleeping. Anup Murmu and Sanjhla
Tudu were sleeping on a chowki. At paragraph-11 she has
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stated that with Basta Murmu, Betka Hanada, Anup Murmu
and her mother had gone to hospital. At paragraph-5 this
witness has stated that Marangmai Murmu (P.W.-5) had told
her that there was a quarrel between Mohanlal Tudu and
Basta Murmu 10 to 15 days before.
In cross-examination at paragraph-19 this witness has
repeated the same thing. A suggestion has been given to this
witness that she is deposing falsely at the instance of Mukhia
but she denied.
PW-9 Marangmai Hasda, the informant. This witness is
unable to speak and understand either local language or Hindi
as such interpreter was appointed. This witness has stated
that since last 2 years she had kept Basta Murmu as servant.
Basta Murmu belonged to village Gobra. Basta Murmu, Botka
Hansda and Dez Marandi were sleeping with him in the
Varandha. Anup and Sanjhla Tudu slept on a chowki. On
hearing hulla she and her daughter both woke up and this
witness saw Mohanlal Todu running. She sent Dez Marandi to
village Gobra. From Mahgama Hospital Basta Murmu was
referred to Godda Hospital where he died. In para-7 she has
stated that she knows about the love affair of Basta Murmu,
Bahamai Hembram and Mohanlal Tudu.
At paragraph-10 of her cross-examination she has
stated that she had not seen assaulting and had only seen
running Mohanlal Tudu. At paragraph-14 she has stated that
Anup Murmu was living since last 2 years in her house. A
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suggestion has been given to this witness that at the instance
of Robin (Mukhia) she has falsely implicated the accused
Mohanlal Tudu to which, she had denied.
P.W.-10 Ram Soren. The evidence of this witness is
only to the effect that one boy had gone to him for informing
him about the assaulting of Basta Murmu. He had gone along
with Dhena Murmu to see the dead body of Basta Murmu.
PW.-11 Dhena Murmu. The evidence of P.M.-11 is also
to the effect that he accompanied PW-10. Both the witnesses
P.W.-10 and 11 belonged to Gobra village, that is, the village of
the deceased Basta Murmu. So the evidence of these two
witnesses is not matrial either on the point of identification or
manner of occurrence.
P.W.-12 Dr. Arvind Kumar Singh is the doctor who
examined Basta Murmu before his death. He has found three
injuries on the person of Basta Murmu. The injury no.1 was
grossly lacerated wound on the frontal bone of right side of
bone, the brain matter was coming out of wound. The wound
was 1½" ½" bone deep. The second injury was one lacerated
wound stellate shape measuring about 3" x 3" with fracture of
parital bone with brain material procuring through the wound
and the 3rd injury was bruise on the right eye with eccligmosis.
Out of these three injuries the injury number one and two is
said to be grievous in nature caused by hard and blunt
substance and the injury number three was simple.
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This witness at paragraph-3 of his cross examination
has stated that he had not found any sharp cutting injury.
P.W.-13 Nav Kumar Soren is the I.O. He has proved
Sanha entry no.218 dt.14.04.1997 which was written at 5.45
Λ.Μ. which has been marked as Ext.-2. This witness has also
proved Sanha entry no.228 which has been marked Ext.2/a.
This witness has proved the ferdbeyan of Marangmai Hansda
which has been marked Ext.-3. Thereafter he recorded the
statement of Tala Marandi, Balemai Soren, Marangmai
Murmu, Chotta Shyamlal Tudu, Dez Marandi, Bhahamai
Marandi, Dhena Murmu and other witnesses.
At paragraph-9 of his cross-examination a suggestion
has been given to this witness that he has obtained the name
of accused by giving pressure upon Dez Marandi. At
paragraph-12 another suggestion has been given to this
witness that he had given the name of the accused on the
pressure of Mukhia. This witness has denied both the
suggestions.
P.W.-14 Dr. Ajay Kumar Jha is the doctor who has
performed the post-mortem and the postmortem report has
been proved by him which has been marked as Ext.-4. In anti-
mortem injury this witness has found four injuries. The extra
injury, that is Injury no.4 the bruise 4" x 4" on left parital area
has been found by this witness. This P.W.-14 has opined that
the injuries were caused by hard and blunt substance and in
cross-examination at paragraph-7 he has stated that he had
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not detected any injury on the body of Basta Murmu caused
by sharp cutting weapon.
P.W.-15 Nageshwar Das on 14.04.1997 had prepared
the inquest report which has also been wrongly marked as
Ext.4. This witness has further proved the ferdbeyan of
Marangmai Hansda which, he had recorded after the death of
Basta Murmu in the Sadar Hospital Godda which has been
marked as Ext.-5.
20. The statement of the accused person/appellant was
recorded under Section 313 Cr.P.C. wherein he had denied the
allegation alleged against him.
21. After due appreciations of evidences the Learned trial
court had found the charge was proved beyond reasonable
doubt against the present appellant and accordingly he was
convicted under section 302 IPC against which the instant
appeal has been preferred.
22. In the backdrop of the aforesaid factual aspects and
testimonies of prosecution witnesses and 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 alleged to be committed
under Section 302 of the Indian Penal Code?
(ii) Whether the only testimony of an eyewitness i.e. P.W.2 is
sufficient enough to prove the alleged charge against the
appellant beyond all reasonable doubt.
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(iii) Whether the appellant is entitled for benefit of doubt in
light of inter-se and intra-se contradictions in
testimonies of the prosecution witnesses?
23. Since all the aforesaid issues are inextricably
interlinked, the same are being decided hereinbelow by
considering them together.
24. This Court, in order to appreciate the submissions
advanced on behalf of the appellant with respect to the
culpability of the appellant, 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.
25. The learned counsel for the appellant has contended
that there are contradiction and improvement in the testimony
of the informant(P.W.9) vis-à-vis the fardbeyan.
26. 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
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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
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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."
27. 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."
28. 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
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importance. More so when there is need of corroboration of the
testimony of eyewitness from other available evidences,
reference in this regard be made to the judgment rendered by
the Hon'ble Apex Court in the case of S. Govindaraju v. State
of Karnataka, (2013) 15 SCC 315. For ready reference the
relevant paragraph of the aforesaid judgment is being quoted
as under:
"23. It is well settled legal proposition that while
appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions were
of such magnitude so as to materially affect the trial.
Minor contradictions, inconsistencies, embellishments or
improvements in relation to trivial matters, which do not
affect the core of the case of the prosecution, must not be
made a ground for rejection of evidence in its entirety.
The trial court, after going through the entire evidence
available, must form an opinion about the credibility of
the witnesses, and the appellate court in the normal
course of action, would not be justified in reviewing the
same, without providing justifiable reasons for doing so.
Where the omission(s) amount to a contradiction,
creating a serious doubt regarding the truthfulness of a
witness, and the other witnesses also make material
improvements before the court in order to make the
evidence acceptable, it would not be safe to rely upon
such evidence. The discrepancies in the evidence of
eyewitnesses, if found not to be minor in nature, may be
a ground for disbelieving and discrediting their evidence.
In such circumstances, the witnesses may not inspire
confidence and if their evidence is found to be in conflict
and contradiction with the other evidence available or
with a statement that has already been recorded, then in
such a case, it cannot be held that the prosecution has
proved its case beyond reasonable doubt."
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29. At this juncture it requires to refer herein the settled
proposition of law that evidence of an eye-witness should be of
very sterling quality and caliber and it should not only instil
confidence in the court to accept the same but it should also
be a version of such nature that can be accepted at its face
value. The Hon'ble Apex Court in the case of Rai Sandeep @
Deepu alias Deepu V. State (NCT of Delhi) (2012) 8 SCC 21
has observed that the "sterling witness" should be of very high
quality and Caliber whose version should, therefore, be
unassailable. The court considering the version of such
witness should be in a position to accept it for its face value
without any hesitation. What would be relevant is the
truthfulness of the statement made by such a witness. It
should be natural and consistent with the case of the
prosecution of the accused. The relevant paragraph of the
aforesaid Judgment is being quoted as under:
"22. In our considered opinion, the "sterling witness"
should be of very high quality and caliber whose version
should, therefore, be unassailable. The court considering
the version of such witness should be in a position to
accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of
the statement right from the starting point till the end,
namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be
natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication
in the version of such a witness. The witness should be
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in a position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation
with each and every one of other supporting material
such as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence and
the expert opinion. The said version should consistently
match with the version of every other witness. It can even
be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not
be any missing link in the chain of circumstances to hold
the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above
test as well as all other such similar tests to be applied,
can it be held that such a witness can be called as a
"sterling witness" whose version can be accepted by the
court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of
the said witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order to
enable the court trying the offence to rely on the core
version to sieve the other supporting materials for holding
the offender guilty of the charge alleged."
30. Learned counsel for the appellant has further contended
that as per the opinion of the doctor who had conducted
postmortem upon the dead bodies of the deceased has not
found any injury caused by sharp cutting weapon and has
opined that the injuries were caused by hard and blunt
substance like lathi and rod etc. but the self-proclaimed
eyewitness PW-2 has stated in his deposition that he has seen
the appellant assaulting the deceased with sharp cutting
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weapon, therefore the testimony of P.W.2 is not fit to be
accepted.
31. In the aforesaid context it needs to refer herein that
wherever there is a gross contradiction between medical
evidence and ocular evidence, the ocular evidence may be
disbelieved. Further if there is gross contradiction between
medical evidence and oral evidence, and if the medical
evidence makes the ocular evidence improbable and rules out
all possibility of ocular evidence being true the ocular evidence
may be disbelieved.
32. The Hon'ble Supreme Court in the case of Bhajan Singh
v. State of Haryana, reported in (2011) 7 SCC 421 has held
as under:
38. Thus, the position of law in such a case of
contradiction between medical and ocular evidence can
be crystallised to the effect that though the ocular
testimony of a witness has greater evidentiary value vis-
à-vis medical evidence, when medical evidence makes
the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of
evidence. However, where the medical evidence goes so
far that it completely rules out all possibility of the
ocular evidence being true, the ocular evidence may be
disbelieved.
33. In the case of CBI v. Mohd. Parvez Abdul Kayuum,
(2019) 12 SCC 1 the Hon'ble Apex Court has reiterated
the same view, for ready reference the relevant paragraph
of the aforesaid order is being quoted as under:
"The witness is not supposed to give all these minute
details. It is not a case where medical evidence
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completely improbabilises the ocular evidence; only in
that case the ocular evidence has to be discarded, not
otherwise. Reliance has been placed on behalf of the
accused on Abdul Sayeed v. State of M.P. [Abdul Sayeed
v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri)
1262] thus: (SCC p. 274, para 39)
"39. Thus, the position of law in cases where there is
a contradiction between medical evidence and ocular
evidence can be crystallised to the effect that though
the ocular testimony of a witness has greater
evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony
improbable, that becomes a relevant factor in the
process of the evaluation of evidence. However, where
the medical evidence goes so far that it completely
rules out all possibility of the ocular evidence being
true, the ocular evidence may be disbelieved."
65. Even otherwise as submitted on behalf of the
prosecution that in case of any discrepancy between the
ocular or medical evidence, the ocular evidence shall
prevail, as observed in Yogesh Singh v. Mahabeer Singh
[Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 :
(2017) 4 SCC (Cri) 257] : (SCC pp. 217-18, para 43)
"43. The learned counsel appearing for the respondents
has then tried to create a dent in the prosecution story
by pointing out inconsistencies between the ocular
evidence and the medical evidence. However, we are
not persuaded with this submission since both the
courts below have categorically ruled that the medical
evidence was consistent with the ocular evidence and
we can safely say that to that extent, it corroborated
the direct evidence proffered by the eyewitnesses. We
hold that there is no material discrepancy in the
medical and ocular evidence and there is no reason to
interfere with the judgments [Mahabeer Singh v. State
of U.P., 2012 SCC OnLine All 4428] of the courts below
on this ground. In any event, it has been consistently
held by this Court that the evidentiary value of medical
evidence is only corroborative and not conclusive and,
hence, in case of a conflict between oral evidence and
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medical evidence, the former is to be preferred unless
the medical evidence completely rules out the oral
evidence. [See Solanki Chimanbhai Ukabhai v. State of
Gujarat [Solanki Chimanbhai Ukabhai v. State of
Gujarat, (1983) 2 SCC 174 : 1983 SCC (Cri) 379] ,
Mani Ram v. State of Rajasthan [Mani Ram v. State of
Rajasthan, 1993 Supp (3) SCC 18 : 1993 SCC (Cri)
853] , State of U.P. v. Krishna Gopal [State of U.P. v.
Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928]
, State of Haryana v. Bhagirath [State of Haryana v.
Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658] ,
Dhirajbhai Gorakhbhai Nayak v. State of Gujarat
[Dhirajbhai Gorakhbhai Nayak v. State of Gujarat,
(2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , Thaman
Kumar v. State (UT of Chandigarh) [Thaman Kumar v.
State (UT of Chandigarh), (2003) 6 SCC 380 : 2003
SCC (Cri) 1362] , Krishnan v. State [Krishnan v. State,
(2003) 7 SCC 56 : 2003 SCC (Cri) 1577] , Khambam
Raja Reddy v. Public Prosecutor [Khambam Raja Reddy
v. Public Prosecutor, (2006) 11 SCC 239 : (2007) 1 SCC
(Cri) 431] , State of U.P. v. Dinesh [State of U.P. v.
Dinesh, (2009) 11 SCC 566 : (2009) 3 SCC (Cri) 1484] ,
State of U.P. v. Hari Chand [State of U.P. v. Hari
Chand, (2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] ,
Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of
M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262]
and Bhajan Singh v. State of Haryana [Bhajan Singh v.
State of Haryana, (2011) 7 SCC 421 : (2011) 3 SCC
(Cri) 241 : (2011) 7 SCR 1] .]"
66. The ocular evidence to prevail has also been observed
in Sunil Kundu v. State of Jharkhand [Sunil Kundu v.
State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC
(Cri) 427] thus: (SCC p. 432, para 24)
"24. In Kapildeo Mandal v. State of Bihar [Kapildeo
Mandal v. State of Bihar, (2008) 16 SCC 99 : (2010) 4
SCC (Cri) 203] , all the eyewitnesses had categorically
stated that the deceased was injured by the use of
firearm, whereas the medical evidence specifically
indicated that no firearm injury was found on the
deceased. This Court held that while appreciating
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variance between medical evidence and ocular
evidence, oral evidence of eyewitnesses has to get
priority as medical evidence is basically opinionative.
But, when the evidence of the eyewitnesses is totally
inconsistent with the evidence given by the medical
experts then evidence is appreciated in a different
perspective by the courts. It was observed that when
medical evidence specifically rules out the injury
claimed to have been inflicted as per the eyewitnesses'
version, then the court can draw adverse inference that
the prosecution version is not trustworthy. This
judgment is clearly attracted to the present case."
34. Thus, from the aforesaid settled position of law, it is
evident that in any event, unless the oral evidence is totally
irreconcilable with the medical evidence, it has primacy and
when it comes to Ocular Evidence and Medical Evidence being
inconsistent with each other, the settled law is that the ocular
evidence must be given primacy, unless medical evidence
completely overrules the ocular evidence.
35. In the backdrop of the aforesaid settled position of law
and in view of material evidence available on record this Court
is now going to appreciate the issues as referred hereinabove
in the preceding paragraphs.
36. Further, this Court has given its thoughtful
consideration to the submissions advanced by learned counsel
for the parties and have carefully re-analysed the evidence
available on record wherefrom some undisputed fact has been
emerged which are as follows:
(i) The factum of the death of Basta Murmu being
homicidal is not in dispute, which stands established
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from the testimony of the medical jurist Dr. Ajay Kr. Jha
(PW-14).
(ii) Further, as per the opinion of the doctor who had
conducted postmortem upon the dead body of the
deceased persons, the injuries were caused by hard and
blunt substance like lathi and rod etc. and that he has
not found any injury caused by sharp cutting weapon.
(iii) Neither informant nor P. W. 2, who claims to be the eye
witness, did not disclose the name of the appellant when
the Fardbeyan was recorded and, as such, the F.I.R. was
instituted against unknown.
(iv) Herein two fardbeyan has been recorded i.e. Ext. 3 and
Ext.5 respectively and in second fardbeyan informant
has added a new factual aspect that on fateful night
Dhena Murmu (P.W.11) was sleeping with the deceased
Basta Murmu.
(v) Dez Marandi (P.W. 2) claims to be sleeping in the house
of the informant alongwith others and had seen the
accused assaulting to the deceased with sharp cutting
weapon, but P.W.2 did not disclose the name of the
appellant to the informant or to any other persons when
the Fardbeyan was recorded and P.W.2 had stated the
name of the appellant to the police on 16.04.1997 i.e.
after three days of alleged occurrence.
(vi) It has come in the testimony of P. W.2, that he had gone
to other village i.e. Gobra, to inform the death of Basta
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Murmu to uncle of the deceased but therein also he did
not disclose the name of the appellant to uncle of the
deceased. The brother of the deceased was not present in
the house, so he went to other village i.e. Basant Roy,
but there also PW-2 did not disclose the name of the
appellant/accused.
37. The learned counsel for the appellant has emphatically
contended that there are inter-se and intra-se contradiction in
the testimony of prosecution witnesses. In the light of
aforesaid contention this Court has again revisited the
testimony of the witnesses particularly informant and P.W.2.
38. The informant has been examined as P.W.9 and she
had stated in her testimony that after hearing hulla she got up
and came out and saw that Mohan Tudu (appellant herein)
running. But from the fardbeyan it is evident that this
witness has not mentioned the said factual aspect in her
farbeyan. Further from the aforesaid it is apparent that this
witness is not an eyewitness of the alleged occurrence.
39. Further in the First fardbeyan she had stated that no
male members were in her house but in 2nd fardbeyan (Ext.5)
she had improved her version and had stated that Dhena
Marandi (P.W.11) was sleeping with the Basta Murmu
(deceased) at fateful night but the said Dhena Marandi
(P.W.11) did not corroborate the aforesaid version and had
stated that he had gone to Harkatta with Ram Soren and saw
the dead body.
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40. P. W, 2 claims to be sleeping alongwith others and had
seen the accused assaulting to the deceased with sharp
cutting weapon, but surprisingly this witness did not disclose
the name of the appellant to the informant or to any other
persons sleeping with in the night or when the fardbeyan was
recorded. Further this is not a prosecution story of the
informant because in the fardbeyan she had stated that no
male members were in her house.
41. Further as per the evidence, the P.W.2 after witnessing
the alleged occurrence had gone to other village i.e. Gobra, to
inform the death of Basta Murmu to uncle of the deceased but
therein also he did not disclose the name of the appellant to
uncle of the deceased. The brother of the deceased was not
present in the house, so he went to other village i.e. Basant
Roy, but there also PW-2 did not disclose the name of the
appellant/accused.
42. Thus, on the basis of the aforesaid it is considered view
of this Court that the said conduct of P.W.2 cannot said to be
natural conduct rather it will be come under the purview of
the un-natural conduct.
43. In almost similar circumstances which is available
herein, the Hon'ble Apex Court in the case of State of Orissa
v. Mr. Brahmananda Nanda) (1976) 4 SCC 288 while taking
note of delay of one and half day in disclosure of the name of
accused has observed that this is a very serious infirmity
which destroys the credibility of the evidence of this witness,
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for ready reference the relevant paragraph is being quoted as
under:
"The evidence suffers from serious infirmities which have
been discussed in detail by the High Court. It is not
necessary to reiterate them, but it will be sufficient if we
refer only to one infirmity which, in our opinion, is of the
most serious character. Though according to this witness,
she saw the murderous assault on Hrudasnanda by the
respondent and she also saw the respondent coming out of
the adjoining house of Nityanandal where the rest of the
murders were committed, she did not mention the name of
the respondent as the assailant for a day and a half. The
murders were committed in the night of 13th June, 1969
and yet she did not come out with the name of the
respondent until the morning of 15th June, 1969. It is not
possible to accept the explanation sought to be given on
behalf of the prosecution that she did not disclose the
name of the respondent as the assailant earlier than 15th
June, 1969 on account of fear of the respondent. There
could be no question of any fear from the respondent
because in the first place, the respondent was not known
to be a gangster or a confirmed criminal about whom
people would be afraid, secondly, the police had already
arrived at the scene and they were stationed in the Club
House which was just opposite to the house of the witness
and thirdly, A.S.I. Madan Das was her nephew and he
had come to the village in connection with the case and
had also visited her house on 14th June, 1969. It is indeed
difficult to believe that this witness should not have
disclosed the name of the respondent to the police or even
to A.S.I. Madan Das and should have waited till the
morning of 15th June, 1969 for giving out the name of the
respondent. This is a very serious infirmity which destroys
the credibility of the evidence of this witness."
44. The Hon'ble Apex Court in the case of Narendrasinh
Keshubhai Zala v. State of Gujarat, (2023) 18 SCC 783
while noting the conduct of the alleged eyewitness is
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suspicious has discarded the testimony of the Sole eyewitness
and has observed which reads as under:
11. PW 3 states that the incident left him shocked and
stunned. He was so scared that he ran towards the
society where he met his uncle Harshad Veljibhai (PW 9)
and his friend Manish Natvarlal Trivedi (PW 8) whom he
informed of the incident. Seeing his condition, he was
asked by his uncle to go home and sleep. Next morning,
he went to the house of Ram and narrated the incident to
his mother and sister Heenaba Pradipsinh Zala (PW 2).
Thereafter he went to the hospital and informed Ram's
father (PW 1) of the incident.
Further, PW 3's credit stands impeached in the cross-
examination part of his testimony. The witness is an
adult, mature and worldly wise. He is aged 24 years and
runs a grocery shop. He is not illiterate, yet he chose to
not take any action, even to save the life of his friend. His
explanation that he went home and slept is uninspiring
in confidence for the incident took place in his presence
and in close proximity of habitation, more specifically at a
short distance i.e. just 3-4 minutes of walking distance
from the Police Headquarters where constables are
posted round the clock. He left his friend profusely
bleeding on the spot but did not seek any help and
immediately did not report the incident to the family
members of the deceased whose house he visited only the
following day at around 8.00-9.00 a.m. His conduct of
going off to sleep, having seen his friend being murdered
right before his eyes and then not visiting the hospital
forthwith is quite unnatural. Also he did not inform the
incident to his parents. It was only when the police
interrogated him that he named the accused. His
testimony is not free from embellishments, nor is not
corroborated by any other evidence. Also, he admits not
to have any information of any monetary transactions
between the accused and the deceased.
45. Herein, for over 3 days from the date of incident, P.W.2
did not disclose the incident to the informant. The prosecution
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sold out a reason, explaining such a conduct of this witness
that the appellant/accused had stated him not to disclose the
incident to anyone but this Court is not impressed with the
said reason. From record it is evident that on the next day of
the incident, the police had come in village. In our view, if this
witness mustered courage to disclose to the police the incident
after 3 days, he could have very well mustered courage to
disclose it on the following day. Further there remains no
justification for his having not informed to the informant
about the incident.
46. The conduct of PW-2 is un-natural and unbelievable
and his version appears to be doubtful reason being that an
eyewitness waiting 3 days to disclose an appellant's name to
others and the said delay has not been explained satisfactorily
casts serious doubt on the prosecution case. Further in the
instant case, it is apparent from record that immediately after
the alleged occurrence the informant has given fardbeyan to
police based upon which FIR was lodged but at that time
neither the informant and nor the P.W.2 has taken name of
the present appellant before the police.
47. Further at paragraph 13 of his testimony this witness
has clarified and stated that he had seen Beta Ram Tudu
assaulting Basta Murmu with Lathi and pointing the accused
he has stated that he knows the accused in the name of Beta
Ram Tudu. At paragraph-5 he has stated that Mohanlal
Tudu(accused) called him to his house and told him not to
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disclose his name to any because he had seen him one
assaulting Basta Murmu, but this witness disclosed the name
of accused before his sister Bahamai Marandi P.W.6 and told
her that Mohanial Tudu has asked his not to disclose his
name. At paragraph 6 this witness has stated when the
accused assaulted Basta Murmu he was not sleep as such he
saw and recognised the accused. At paragraph 8 he has
identified the accused in the dock and said that this is the
person whom he had seen on the day of occurrence assaulting
with lathi.
48. As discussed hereinabove this witness had not disclosed
the name of the accused/appellant immediately after the
occurrence. Further at paragraph 12 of his testimony this
witness has stated that after the occurrence he had not met
the accused and for the first time he is seeing him in the court
and further that he had not talked with his sister about the
incident in the house, and therefore it is evident that this
witness had not met accused then how Mohanlal
Tudu(appellant herein) and called him and asked not to
disclose his name. Further, if he had not talked with his sister
in the house then there is not question of disclosing the name
of accused to his sister arises. Further, at one place paragraph
2 this witness has stated that accused assaulted with Kulhari
whereas in paragraph-8 and 13 he has stated that accused
assaulted with lathi.
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49. It is further evident that paragraph -12 of the evidence
of this witness wherein he has stated that in the house of
Marangmai Hansda her father-in-law Balemai soren, Basta
Murmu and Marangmai Hansda herself were residing which is
not the case of the prosecution because in the fardbeyan, it is
stated that the informant was living with her widowed
daughter Palemai soren and as there were no male member
she had kept Basta Murmu as servant.
50. Thus, on the basis of the discussion made herein above
this Court is of the considered view that testimony of the
prosecution witnesses has full with the vital contradictions
and further it is also evident that the testimony of the alleged
eyewitness P.W.2 is not fully reliable and trustworthy and as
such benefit of doubt might be extended to the appellant.
51. 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.
52. Further, Suspicion, however grave it may be, cannot
take the place of proof, and there is a large difference between
something that may be proved, and something that will be
proved. In a criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of proof. This
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is for the reason that the mental distance between "may be"
and "must be" is quite large, and divides vague conjectures
from sure conclusions.
53. In a criminal case, the court has a duty to ensure that
mere conjectures or suspicion do not take the place of legal
proof. The large distance between "may be true" and "must be
true", must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution, before
an accused is condemned as a convict, and the basic and
golden rule must be applied. In such cases, while keeping in
mind the distance between "`may be true" and "must be true",
the court must maintain the vital distance between mere
conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny, based upon a
complete and comprehensive appreciation of all features of the
case, as well as the quality and credibility of the evidence
brought on record. The court must ensure, that miscarriage of
justice is avoided, and if the facts and circumstances of a case
so demand, then the benefit of doubt must be given to the
accused, keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a fair doubt
that is based upon reason and common sense, reference in
this regard be made to the judgment rendered by the Hon'ble
Apex Court in the case of Sujit Biswas vs State of Assam;
2013 Cri.LJ 3140) (SC).
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54. The law is also settled that merely on the basis of
presumption and conjecture, there cannot be conviction of a
person snatching away the right to life as directed under
Article 21 of the Constitution of India, rather the principle is
that the conviction is to be based upon the evidence as
produced by the prosecution witness if found to be proved
beyond all reasonable doubt.
55. 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."
56. Likewise, the Hon'ble Apex Court in the case of
Krishnegowda & Ors. Vrs. State of Karnataka, (2017) 13
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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."
57. Further, it needs to refer herein 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
2026:JHHC:6683-DB
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."
58. 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. --"
59. 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:
2026:JHHC:6683-DB
"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.---"
60. This Court, after having discussed the factual aspect
and legal position as discussed hereinabove is of the view that
there are vital intra-se and inter-se contradiction in the
testimony of the prosecution witness and further on the basis
of testimony of self-pro-claimed eyewitness P.W.2 based upon
which order of sentence and conviction has been passed, it
cannot be stated that the charge against the appellant under
Section 302 has been proved beyond all reasonable doubt, as
such the impugned judgment of conviction and order of
sentence requires interference by this Court.
61. In the result, the Judgment of conviction dated
03.07.1998 and Order of sentence dated 04.07.1998 passed
by learned 2nd Additional Sessions Judge, Godda, in Sessions
Case No.138 of 1997/43 of 1997, is hereby quashed and set
aside.
62. Consequently, the appellant is hereby discharged from
all criminal liabilities. Since the aforesaid appellant is on bail,
he is discharged from the liability of the bail bonds
63. Accordingly, the instant appeal stands allowed.
64. Let the Lower Court Records be sent back to the Court
concerned forthwith, along with the copy of this Judgment.
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65. Pending Interlocutory Application(s), if any, stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree.
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Jharkhand High Court, Ranchi
Dated, the 12th March, 2026.
Birendra / A.F.R.
Uploaded on 13.03.2026.
