AMAR SINGH versus THE STATE (NCT OF DELHI) on 12 October 2020

[2020] 8 S.C.R. 751

AMAR SINGH

v.

THE STATE (NCT OF DELHI)

(Criminal Appeal No. 335 of 2015)

OCTOBER 12, 2020

[SANJAY KISHAN KAUL, ANIRUDDHA BOSEAND KRISHNA MURARI, JJ.]

Penal Code, 1860 – s.302 r/w. s. 34 – Murder – Prosecutioncase is that when the victim/deceased along with his two brothers,PW-1 and PW-11 was moving on foot towards a taxi stand at about10.00 pm. – Three accused persons attacked the victim with hockeysand a knife – When PW-1 and PW-11 tried to rescue their brother,all the three accused persons brandished their hockeys and knifeand warned that whosoever will come to save victim will also bekilled – Later, victim was taken to hospital and he was declareddead by the doctor – The trial Court convicted the accused personsu/s.302 IPC r/w. s.34 IPC and sentenced them to life imprisonment– Before the High Court, inter-alia, it was contended that theprosecution case was based on eye witness on account of theincident, however, PW-11 and PW-5 did not support the prosecutioncase and thus it was not safe to rely upon the solitary evidence ofthe sole remaining eye witness PW-1 – However, the High Courtfound that the trial Court did not suffer from any infirmity orperversity and dismissed the appeal – On appeal, held: PW-11 andPW-5 turned hostile – The finding of guilt of the accused appellantsis based on sole testimony of eye witness PW-1 – The assailantswere only armed with hockey sticks and a knife and not with anyfirearms – The two brothers (PW-1 and PW-11) present on the spotdid not make slightest attempt to intervene and save their brotherwhen he was getting assaulted – This unnatural conduct againstnatural human behaviour casts a serious doubt of shadow on thepresence of eye witness on the spot at the time of occurrence –Further, doctor who prepared the MLC stated in his evidence thatone dead body was brought in the casualty of hospital by a headconstable, which casts doubts on the prosecution story that twobrothers of deceased accompanied him to the hospital – Also, thereis material discrepancy between ocular testimony and medical

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Aevidence – As there were 15 injuries inflicted on the victim as permedical report and PW-1 stated that whole incident lasted 5 minutes– It is practically impossible to inflict 15 injuries within a shortspan of 5 minutes – This fact coupled with the fact that twobrothers remained mute spectators when the third brother-victim wasbeing assaulted in clear indication that PW-1 was not present onBthe spot and not an eye-witness to the incident – Therefore, thereasons given by the Courts below for convicting the appellantsfor the alleged offences are not convincing – The appellants mustbe given benefit of doubt – Thus, the impugned orders of the Courtsbelow are set aside.CAllowing the appeals, the Court HELD:1. The assailants were only armed with hockeysticks and a knife and not with any firearms. It seems veryunnatural that two brothers present on the spot will not evenmake slightest attempt to intervene and try to save the otherDbrother being assaulted, merely on the threat extended by theassailants armed with hockey sticks and a knife. This unnaturalconduct totally against natural human behaviour casts a seriousdoubt of shadow on the presence of eye witness on the spot atthe time of occurrence. Moreover, the facts stated by PW-1 inEthis regard, as already discussed above, has not beencorroborated by the other brother PW-11. [Para 20][761-E-F]

2. The other unnatural conduct of two brothers PW-1 andPW-11 just after the incident again makes their presence on thespot extremely doubtful. There was a medical clinic just nearbyFthe place of incident and the first endeavour of the two brotherswould have been to take injured brother to the clinic forimmediate medical aid or try and get some medical aid from theclinic. Admittedly, according to the statement of PW-1 PCR Vanarrived after about 15 minutes. During this period no effort wasmade to either take the injured brother to the clinic or to callGthe doctor for some first aid. This is totally against normal humanbehaviour. [Para 21][761-G-H; 762-A-B]

3. According to the prosecution story the two brothers,PW-1 and PW-11 accompanied the injured to the Hospital in thePCR Van and were present during his medical examination.H

However, a perusal of the MLC Ex. PW-17/A filed in Volume-II of additional document goes to show that in the column meantfor recording name initially unknown is mentioned andsubsequently name of the victim has been recorded. Likewisein the column made for recording the name of relative or friendinitially the name of a Head Constable is entered and afterrecording the words ‘V/C’ V-89 PCR No. 1008/PCR in thesecond line words ‘and brothers’ appears to have been added.[Para 23][762-E-F]

4. This in itself casts serious doubts of shadow on theprosecution story that two brothers of the deceased, PW-1 andPW-11 were present on the spot and accompanied the injuredin PCR Van to AIIMS. Had it been so, naturally, they would havegiven the name of the deceased and their own names whichwould have been recorded in the MLC Ex. PW-17/A at the firstinstance. Doctor-PW-17/A who prepared the MLC stated in hisevidence that one dead body was brought in the casualty ofAIIMS by Head Constable having multiple sharp deep injuriesall over the body and he prepared the MLC PW-17/A. [Para24][762-G-H; 763-A]

5. Further, there is material discrepancy between oculartestimony and medical evidence. Thus, there are total 15 injuriesinflicted by three assailants, two having hockey sticks and oneknife as per prosecution story. PW-1 emphatically stated thatwhole incident barely lasted five minutes. It would be practicallyimpossible to inflict 15 injuries of the type by three assailantssimultaneously attacking the deceased within a short span of 5minutes particularly when the victim being a normal healthyperson naturally must have offered resistance. Inflicting 15injuries on the body of the deceased by three accused personswould require a considerable amount of time. This itself suggeststhat the three accused had sufficient time at their disposal toconduct the crime and the entire incident could not have takenplace within five minutes as stated by eye witness PW-1. Thisfact coupled with the fact that two brothers of the deceasedremained mute spectators when the third brother was beingassaulted is clear indication of the fact that PW-1 was not presenton the spot and not an eye witness of the incident. [Paras 26and 27][763-C; 765-B-E]

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AKartarey and Ors. v. State of U.P. (1976) 1 SCC 172: [1976] 2 SCR 199 ; Ishwar Singh v. State of U.P.(1976) 4 SCC 355 – relied on.

Sunil Kumar v. State Government of NCT of Delhi(2003) 11 SCC 367 : [2003] 4 Suppl. SCR 767 ;BSelvaraj v. The State of Tamil Nadu (1976) 4 SCC 343– referred to.

CASE LAW REFERENCE

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 335 of 2015.D

From the Judgment and Order dated 09.05.2014 of the HighCourt of Delhi at New Delhi in Crl. Appeal No. 544/1998.

With

Criminal Appeal No. 336 of 2015.E

Ms. Aishwarya Bhati, ASG, Dushyant Dave, Sr.Adv., Nikhil Goel,Ms. Naveen Goel, Dushyant Sarna, Vinay Mathew, Rishi Malhotra,Ms. Rashmi Malhotra, Sachin Sharma, S.K.Tyagi for B. V. BalaramDas, V.K.Malik, Rahul Raj Malik, Aftab Ali Khan, Advs. for theappearing parties.F

The Judgment of the Court was delivered by KRISHNA MURARI, J.

1. These two appeals are directed against the impugned judgmentand order dated 09.05.2014 passed by the High Court[1]dismissing theGcriminal appeal filed by the appellants challenging the order of convictionagainst them whereby the appellants were convicted under Section 302IPC r/w Section 34 IPC. One of the accused–appellant, Inderjeet Singh,was also held guilty and convicted under Section 27 of the Arms Actand were sentenced to undergo imprisonment for life and a fine of H1 High Court of Delhi Rs.5000/- each, in default of payment to undergo Simple Imprisonmentfor 3 months. Accused–appellant, Inderjeet Singh, was also sentencedto Rigorous Imprisonment for one year under Section 27 of the ArmsAct and this sentence was to run concurrently with the sentence alreadyawarded to him under Section 302 IPC.

2. In brief the prosecution case is that on 03.08.1990, on receiptof DD No. 18-A, SI Joginder Singh along with SI Gian Singh, ConstableJai Singh and Constable Narender Pal reached Sukhdev Market on thestreet which goes to Qumayun Restaurant, where near House No. H-801 a crowd was gathered and they came to know that injured hadbeen removed to AIIMS in a PCR vehicle. Leaving ConstableNarender Pal at the spot, SI Joginder Singh along with other policeofficials reached AIIMS, where he came to know that injured DevinderSingh @ Ladi was declared as ‘brought dead’. Two brothers of thedeceased, namely, Parminder Singh and Amar Singh, were foundpresent in the hospital. Parminder Singh gave his statement to SIJoginder Singh to the effect that he has six brothers and his threebrothers, namely, Harinder Singh, Ravinder Singh and Rajinder Singhreside with his mother Smt. Prakash Wati at House No.826/5, ArjunNagar. His eldest brother Amar Singh resides at House No.15/88, GeetaColony along with his family and he along with his family resides at53/F, D-12 Area, Sector 4, Bangla Sahib Marg, New Delhi. His sisterSaroj resides at 98-A Baba Kharak Singh Marg along with her family.About three years ago, one person namely Khazan Singh had beenmurdered and his brother Devinder Singh @ Ladi had been arrestedfor his murder and a case for murder was pending against him. Hewas released on interim bail from the Court and used to reside withhis sister Saroj. On 3.8.1990 Devinder Singh @ Ladi came to the houseof his mother and his other brother Amar Singh also reached there andthey had their meals together. At about 10:00 PM, Parminder Singh alongwith his brothers, Devinder Singh@ Ladi and Amar Singh left the housefor going to their respective houses. They were moving on foot towardstaxi stand situate in Sukhdev Market. He and Amar Singh were aboutten paces ahead of Devinder Singh @ Ladi . At about 10:10 PM, whenthey reached near the corner of Sukhdev Market, they heard DevinderSingh @ Ladi raising an alarm ‘Bachao-Bachao’ and on turning back,they saw that Amar Singh, S/o Likhi Chand and Shiv Charan, S/o PooranChand were giving hockey blows and one Inder Singh, S/o KhazanSingh was giving knife blows to Devinder Singh @ Ladi. His brother A

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ADevinder Singh@ Ladi fell on the ground and Inderjeet Singh gave himmany knife blows. When they tried to rescue their brother, all the abovethree accused persons brandished their knife and hockeys and warnedthat whosoever will come to save Devinder Singh, they will also killhim. Thereafter all of them ran towards Bhisham Pitamah Marg, hisbrother Devinder Singh became unconscious. Many persons includingBSujan Singh, S/o Ram Singh assembled there. After sometime, PCRvan came and removed Devinder Singh to AIIMS, where he wasdeclared dead by the Doctor.

3. On this statement, a case was got registered and investigationwas conducted by Inspector Richpal Singh. During investigation,CInspector got the spot photographed, prepared site plan, seized onebroken piece of hockey, one pair of dirty white shoes, one steel strip,sample blood, blood stained earth, sample earth from the spot. Inspectoralso seized the blood stained clothes of Amar Singh and ParminderSingh, got conducted the post mortem on the dead body of the deceased,Drecorded the statement of witnesses and collected the post mortemreport. Inspector arrested the accused persons and recorded thedisclosure statement of accused Inderjeet Singh @ Inder, who gotrecovered the knife, which was used to commit the murder. Inspectoralso recorded the disclosure statements of accused Amar Singh andShiv Charan, who got recovered the hockeys, used in commission ofEoffence. The recovered items were sealed separately in pulandas andwere sent to CFSL. After completion of investigation, challan underSection 302/506/34 IPC was filed in the Court of concernedMetropolitan Magistrate, who committed this case to the Court ofSessions. All the accused persons pleaded not guilty to the charge Fframed against them and claimed trial. Accused Inderjeet Singh wasseparately charged for an offence under Section 25 and 27 of ArmsAct.

4. In order to substantiate its case, prosecution had examined27 witnesses in all. All the incriminating evidence was put to theGaccused persons while recording their statements under Section 313Cr.P.C., wherein they totally denied the case of the prosecution.

5. The Trial Court came to the conclusion that the prosecutionhad brought home the guilt of the accused persons and accordinglyconvicted them for murder punishable under Section 302 IPC r/wHSection 34 IPC and sentenced them to Life Imprisonment. Aggrieved by the same, the accused appellants filed an appeal before the HighCourt. However, during the pendency of the appeal before the HighCourt, appellant Shiv Charan, expired on 12[th] April, 2008 andaccordingly the proceedings against him were abated.

6. The case set up by the appellants before the High Court wasthat there was unexplained delay not only in the lodging of the FirstInformation Report but also in despatching a copy of the same to thejurisdictional magistrate. In the absence of any cogent and acceptableexplanation for the delay, the prosecution case was rendered doubtful.It was further contended that although prosecution case is alleged tobe based on eye witness on account of the incident, however, AmarSingh PW-11, and PW-5, did not support the prosecution case and thusit was not safe to rely upon the solitary evidence of the sole remainingeye witness Parminder Singh PW-1. It was further pleaded that theconduct of Parminder Singh PW-1 is highly unnatural which makes hispresence on the spot at the time of the incident doubtful. It was pointedout that no effort was made to take his injured brother to the clinic ofDoctor Bhardwaj, which was just nearby. Amar Singh PW-11, who wasdeclared hostile stated in his evidence that there was darkness at thetime of the incident and nobody recognised the accused persons whohave been falsely implicated. It was also contended that another eyewitness Sujan Singh PW-5 has also not supported the prosecution caseat all. The defence also drew the attention of the Court to MLC of thedeceased Ex. PW-17/A to show that first the name of the injured waswritten as unknown and thereafter the name of Devinder Singh hasbeen written by overwriting and in the column maintained for recordingthe name and relation of who brought the injured, name of HeadConstable, Dharam Singh PCR is mentioned and again later on‘brothers’ has been added. It was also submitted that the solitary eyewitness is a close relation of a deceased and thus it is not safe to relyupon his sole testimony which is not corroborated.

7. It was further submitted that father of the appellant InderjeetSingh was murdered and deceased Devinder Singh was facing trial forthe murder and was out on bail and since the victim was accused ofmurdering the father of the appellant, the brothers of the deceased victimhad clear motive to falsely implicate the appellants in this case.

8. Arrest of the accused persons and subsequent recovery attheir instance was also challenged on the ground that there is no A

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Aindependent witness to the recovery and police officials are givingdifferent versions. The defence also pointed out that the knife whichwas recovered had a blunt tip, as such, the injuries as mentioned in thepost mortem report were not possible to be caused by the said knife.Even, this knife was not shown to the doctor to seek his opinion whetherinjuries were possible by the said blunt knife or not. Recovery of hockeyBat the instance of the appellant was not even believed by the TrialCourt.

9. However, the High Court finding that the impugned judgmentdoes not suffer from any infirmity or perversity which calls forinterference, dismissed the appeal.C10. We have heard learned counsel for the appellants, learnedcounsel for the State-Respondent and learned counsel for therespondent.

11. Shri Dushyant Dave, Learned Senior Counsel for theDappellants submitted that the entire incident appears to be inherentlyimprobable. It is also pointed out that conduct of PW-1 alleged eyewitness either at the time of the incident or immediately thereafter isnot natural and does not inspire confidence which makes his presenceon the spot extremely doubtful. The other two eye witnesses haveturned hostile and nothing could be elicited from their cross-examinationEby the prosecution. It was further submitted that the conviction andsentence of the appellants based upon the sole testimony of one eyewitness, whose conduct was unnatural and inconsistent with the ordinarycourse of human nature making his presence at the site of incidentextremely doubtful, is highly unsafe without corroboration from otherFpiece of evidence.

12. Ms. Aishwarya Bhati, Learned Senior Counsel appearing forthe State vehemently contended that two Courts have recordedconcurrent finding of guilt of the accused appellants based on thetestimony of an eye witness which they found to be reliable and thereGexists no legal impediment for conviction on the basis of the same. Shefurther submitted that evidence of a hostile witness is not to bediscarded as a whole and relevant parts thereof which are admissiblein law can be relied upon by the prosecution. She further submittedthat the conviction cannot be assailed merely because of some lacunain investigation and any failure or omission of the investigating officerHcannot render the prosecution case doubtful or unworthy of belief, in a case where the prosecution case is fully established by direct testimonyof eye witness duly corroborated by medical evidence.

13. We have considered the rival submissions and carefullyperused the record.

14. The prosecution apart from other formal witnesses producedthree eye witnesses in support of its version, namely, Parminder SinghPW-1, Amar Singh PW-11, the two brothers of the deceased and SujanSingh PW-5. PW-11 and PW-5 turned hostile. PW-11 was cross-examined by the prosecution. He simply denied having seen the accusedpersons giving blows to his brother. He also denied having stated tothe police that he saw accused appellant Inderjeet Singh inflicting knifeblows. He also denied having stated to the police that he ran to rescuehis brother. He also stated that he was not able to see the faces of theculprits because of the darkness and thus cannot say, if, the accusedpersons are the same person, who killed his brother. This alleged eyewitness specifically denied having told the police that the three accusedhad murdered his brother and he had identified them as culprits.

15. Similarly, the other eye witness PW-5 produced by theprosecution denied having seen two boys armed with hockey sticks andone boy holding knife attacking another boy. He also denied havingidentified the three accused. He stated that while he was passing outsidethe house of Doctor Bhardwaj there were 4-5 persons standing thereand it was from them he came to know that person outside the houseof Doctor Bhardwaj was dead. This eye witness also denied havingseen the incident. He was cross-examined by the prosecution but nothingcould be elicited therefrom.

16. Thus the finding of guilt of the two accused appellantsrecorded by the two Courts below is based on sole testimony of eyewitness PW-1. As a general rule the Court can and may act on thetestimony of single eye witness provided he is wholly reliable. There isno legal impediment in convicting a person on the sole testimony of asingle witness. That is the logic of Section 134 of the Evidence Act,1872. But if there are doubts about the testimony Courts will insist oncorroboration. It is not the number, the quantity but quality that ismaterial. The time honoured principle is that evidence has to be weighedand not counted. On this principle stands the edifice of Section 134 ofthe Evidence Act. The test is whether the evidence has a ring of truth, A

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Ais cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State Government of NCT of Delhi)[2].

17. This case primarily hinges on the testimony of sole eyewitness, Parminder Singh PW-1, brother of the deceased. As alreadydiscussed above conviction can be based on the testimony of a singleBeye witness so long he is found to be wholly reliable. In the light of thesettled legal principles we proceed to examine the testimony ofParminder Singh PW-1 and also his conduct at the time of the incident.

18. According to his own testimony on the fateful night at about10:00 PM, the three brothers (Parminder Singh PW-1, Amar SinghCPW-11 and deceased Devinder Singh @ Ladi) left the Mother’s housefor their respective houses. Parminder Singh and Amar Singh werewalking a few paces ahead of Devinder Singh @ Ladi when they heardhim shouting ‘Bachao-Bachao’ when they turned around they foundthree persons attacking their brother Devinder Singh @ Ladi. AccusedInderjeet Singh was armed with a knife while accused Amar Singh andDShiv Charan were armed with hockey sticks. He further stated that herecognised all the three accused from before and when they try tointervene all the three persons aimed their weapons at them andthreatened to kill. Due to assault Devinder Singh @ Ladi fell down onthe ground and became unconscious and thereafter the accused personsfled from the place. He also stated that while they were taking care ofEthe injured brother the police van arrived at the spot in which DevinderSingh @ Ladi was removed to the Hospital where he was declaredbrought dead. During the cross-examination he stated that entireincident barely lasted five minutes and they did not make any complaintto the police but the police came of its own after about 15 minutes ofFthe incident. He had also admitted in the cross-examination that he didnot inform his mother though she was living nearby. He also stated thathe and his brother Amar Singh went to the Hospital with injuredDevinder Singh @ Ladi in the PCR van. He also stated that he informedthe Doctor who examined Devinder Singh @ Ladi as to the manner inwhich he sustained injuries. He also stated that Devinder Singh @ LadiGsustained injury on his head on account of hockey blows however hedid not bleed from his head.

19. The unnatural conduct of Parminder Singh PW-1 and AmarSingh PW-11 the two brothers of the deceased which we have noticed H2 (2003) 11 SCC 367

from record is that though they claim to be present at the time ofoccurrence no attempt was made by them to save their brother fromassault. Though PW-1 has tried to explain in his examination in chiefthat when they tried to intervene and save their brother Devinder Singh@Ladi all the three accused persons aimed their weapons at them andthreatened that in case they intervened they would also be killed. Itmay be relevant to notice that Amar Singh PW-11 neither in statementin chief nor in his cross-examination by the prosecution after beingdeclared hostile stated about any efforts made either by him or by PW-1 Parminder Singh to save their brother Devinder Singh @ Ladi whenhe was attacked. On the contrary PW-11 stated in his examination inchief that he was not able to run because of his spinal injury. In thecross-examination he categorically stated that he never told the policethat when they tried to rescue Accused Inderjeet Singh brandished theknife and accused Amar Singh and Shiv Charan brandished hockeytowards them threatening to kill anyone who comes to rescue DevinderSingh @ Ladi. He also denied in the cross-examination having everbeing given any statement to the police that he had identified the culpritsor accused Inderjeet Singh has stabbed with knife and accused AmarSingh gave hockey blows and the front portion of the hockey had brokenbecause of assault and the 3[rd] accused Shiv Charan also gave hockeyblows.

20. The assailants were only armed with hockey sticks and aknife and not with any fire arms. It seems very unnatural that twobrothers present on the spot will not even make slightest attempt tointervene and try to save the other brother being assaulted, merely onthe threat extended by the assailants armed with hockey sticks and aknife. This unnatural conduct totally against natural human behaviourcasts a serious doubt of shadow on the presence of eye witness onthe spot at the time of occurrence. Moreover the facts stated byPW-1 Parminder Singh in this regard, as already discussed above, hasnot been corroborated by the other brother Amar Singh PW-11.

21. The other unnatural conduct of two brothers PW-1 and PW-11 just after the incident again makes their presence on the spotextremely doubtful. There was a medical clinic of Doctor Bhardwajjust nearby the place of incident and the first endeavour of the twobrothers would have been to take injured brother to the clinic forimmediate medical aid or try and get some medical aid from the clinic AB

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Aof Doctor Bhardwaj. Admittedly, according to the statement ofParminder Singh PW-1 PCR Van arrived after about 15 minutes. Duringthis period no effort was made to either take the injured brother to theclinic or to call Doctor Bhardwaj for some first aid. This is totally againstnormal human behaviour.B22. Further no effort is alleged to have been made to either shift B22. Further no effort is alleged to have been made to either shiftthe injured to any hospital or even inform the police. It is highly unnaturalthat two real brothers made no efforts to save the life of third brotherwho was severely injured if they were present at the place of theincident. The PCR van is stated to have arrived after 15 minutes onthe basis of information given by some unknown person regarding aCperson lying injured in front of Qumayun Hotel. PW-20 lady constableRenu in her evidence stated that on the fateful night she was posted atPCR Van when at about 10:27 PM an unknown person made a call toinform that one man was lying unconscious near Qumayun Hotel,Defence Colony which was registered as DD No.-493. It was on theDinformation given by an unknown, the PCR Van reached at the site ofthe incident and shifted the injured to AIIMS where he was declaredbrought dead.

23. According to the prosecution story the two brothers, namely,Parminder Singh PW-1 and Amar Singh PW-11 accompanied the injuredEto the Hospital in the PCR Van and were present during his medicalexamination. However, a perusal of the MLC Ex. PW-17/A filed inVolume-II of additional document goes to show that in the column meantfor recording name initially unknown is mentioned and subsequentlyDevinder Singh @ ladi has been recorded. Likewise in the column madefor recording the name of relative or friend initially Head ConstableF‘Dharam Singh’ is entered and after recording the words ‘V/C’ V-89PCR No. 1008/PCR in the second line words ‘and brothers’ appearsto have been added.

24. This in itself casts serious doubts of shadow on theprosecution story that two brothers of the deceased, namely, ParminderGSingh PW-1 and Amar Singh PW-11 were present on the spot andaccompanied the injured in PCR Van to AIIMS. Had it been so,naturally, they would have given the name of the deceased and theirown names which would have been recorded in the MLC Ex. PW-17/A at the first instance. Doctor Romesh Lal PW-17/A who preparedHthe MLC stated in his evidence that one dead body was brought in the casualty of AIIMS by Head Constable Dharam Singh having multiplesharp deep injuries all over the body and he prepared the MLC PW-17/A.

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25. The facts discussed hereinabove makes the presence of eyewitness at the place of occurrence all the more doubtful and highlyimprobable. Since there are serious doubtful aspects in the conduct ofPW-1 Parminder Singh and his conduct does not appear to be naturalit would not be safe to accept his evidence without corroboration moreparticularly when two other eye witnesses, one being a real brother ofthe deceased has turned hostile.

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26. Further, there is material discrepancy between oculartestimony and medical evidence. Post-Mortem on the dead body of thedeceased Devinder Singh @ ladi was conducted by Doctor M. S. SagarPW-21. On external examination following anti mortem injuries werenoticed:- C

1. Multiple contusions and abraded contusions over bothforearms, both arms and dorsum of both hands.

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2. CLW on right periauricular region of size 3 cm x 2 cmx 0.5 cm.

3. Contusions right mandibular region extending to neck ofsize 6 cm x 3 cm.E

4. Incised wound on the right side of forehead 1 cm belowhairline ofsize 1.5 x 1 cm superficial.

5. Incised wound left upper limb vertically placed of size1.5 x 1 cm xmuscle deep with clean cut invertedFmargins.

6. Incised wound left knee of size 5 cm x .5 cm x bonedeep with cleancut inverted margins.

7. Incised wound left forearm round elbow of size 1 cm x1 cm marginsclean cut and everted.

G8. Incised wound left forearm placed 6 cm below elbowjoint of size 2.5x lx bone deep, with clean cut invertedmargins, with cutimpressions present on theolecraenon.

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9. Incised wound left forearm anterio-medical aspectplaced 5 cmbelow cubital fossa of size 1.5cm x 1cm xmuscle deep with clean cut inverted margins underlinesubcutaneous tissue and muscle clean cut.

10. Incised wound right side of abdomen placed 10 cmbelow coastalmargins in mid axillary plane 3 cm x 1 cminto muscle deep obliquely placed, margins clean cut, notpenetrating the abdominal cavity.

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11. Stab wound right side of chest anterior axillary planeobliquelyplaced of size 3.5 cm x 1 cm, 22 cm belowcavicular with clean cut everted margins passingthrough 7[th] intercoastal plane entering into left lower lobeof lung going into pericardium with presence of hemo-pericardium and incised wound left pentricle around apexof size 2 cm x 1.5 cm x whole thickness of ventricle.

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12. Stab wound of size 4 cm x 1 cm x skin deep placedtransversely 8 cm below injury no. 11.

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13. Incised wound 1 cm x 1 cm with clean cut invertedmargins placed 2cm lateral and 1.5 cm below injury no.12.

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14. Stab wound left side of abdomen in posterior axillaryline placed 25 cm below clavicular margins of size 4 cmx 1 cm going into abdominal cavity producing multipleincised wound of small and large intestines.

15. Incised wound of size 4 cm x 1.5 cm in left side ofabdomen 6 cmbelow and 2 cm medial to injury no. 14.

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Internal examination of the deceased revealed:- There were homo-thorax on left side with about 500 ccof blood beingpresent. There was stab wound of leftlung lower lobe of size 3 cm x 1.5 cm x 4 cm. Hemo-Gcardium was also present with 400 cc of blood and bloodclots. There was stab wound of heart over apex of size2.5 cm x 1cm x whole thickness of left ventricular wallwith cutting of cordae-tendenae. In the abdominalcavity, there was hemo-periteneum about 400 cc of bloodHand blood clots with multiple incised wound of small andlarge intestines.

It was opined that cause of death was shock as a resultof multipleantemortem injuries produced by sharp edgedweapon.

Injury no.11 and 14 are sufficient to cause death in theordinary courseof nature individually as well ascollectively.

27. Thus, there are total 15 injuries inflicted by three assailants,two having hockey sticks and one knife as per prosecution story.Parminder Singh PW-1 emphatically stated that whole incident barelylasted five minutes. It would be practically impossible to inflict 15 injuriesof the type by three assailants simultaneously attacking the deceasedwithin a short span of 5 minutes particularly when the victim being anormal healthy person naturally must have offered resistance. Inflicting15 injuries on the body of the deceased by three accused persons wouldrequire a considerable amount of time. This itself suggest that threeaccused had sufficient time at their disposal to conduct the crime andthe entire incident could not have taken place within five minutes asstated by eye witness Parminder Singh PW-1. This fact coupled withthe fact that two brothers of the deceased remained a mute spectatorwhen the third brother was being assaulted is clear indication of thefact that PW-1 Parminder Singh was not present on the spot and notan eye witness of the incident.

28. Dr. M.S. Sagar in his Post-Mortem report has opined thatthe cause of death was due to shock due to multiple ante mortem injuriescaused by sharp edged weapon and injuries No. 11 and 14 wereindividually and collectively sufficient to cause death in ordinary courseof nature. He further opined in his statement that injuries have beencaused by sharp edged weapon and since no weapon was shown tohim, he has not given any opinion. Admittedly the tip of knife whichwas recovered on the disclosure statement of accused appellantInderjeet Singh was broken and it was not pointed but blunt. Whetherthe type of stab and incised wound found on the body of the deceasedcould have been inflicted by a knife with a broken tip, is in our opinion,extremely doubtful. The opinion of the Doctor has not been obtainedas to whether such injuries could have been caused by knife with abroken tip by showing him the same.

29. In the facts and circumstances of the case this was seriouslapse on the part of the investigating officer. Though normally minor AB

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Alapses on the part of the investigating officer should not come in theway of accepting eye witness account, if otherwise reliable. But in thecircumstances of the case at hands where the conduct of sole eyewitness is unnatural and there are various other surroundingcircumstances which make his presence at the site of incident doubtful,such a lapse on the part of the investigating officer assumed significanceBand is not liable to ignored.

30. While emphasizing the importance of eliciting the opinion ofmedical witness in such circumstances this Court in the case ofKartarey and Ors. V/s State of U.P.[3]

Chas observed as under:-

“We take this opportunity of emphasizing the importance ofeliciting the opinion of the medical witness, who hadexamined the injuries of the victim, more specifically on thispoint, for the proper administration of justice particularlyDin a case where injuries found are forensically of the samespecies, example stab wound, and the problem before of theCourt is whether all or any those injuries could be causedwith one or more than one weapon. It is the duty of theprosecution, and no less of the Court, to see that the allegedweapon of the offence, if available, is shown to the medicalEwitness and his opinion invited as to whether all or any ofthe injuries on the victim could be caused with that weapon.Failure to do so may sometimes, cause aberration of thecourse of justice”.

31. The same has been again asserted by this Court in IshwarFSingh V/s State of U.P.[4] by observing as under:- “It is the duty of the prosecution, and no less of the Court,to see that the alleged weapons of the offence, if available,is shown to the medical witness and is opinion invited as towhether all or any of the injuries on the victim could beGcaused with that weapon. Failure to do so sometimes, causeaberration of the course of justice. On the basis of theevidence on record it is difficult to say whether the injury tothe deceased was caused by the knife with a broken tip which 3 (1976) 1 SCC 172H4 (1976) 4 SCC 355

was ceased. These variations relate to vital parts of theprosecution case, and cannot be dismissed as minordiscrepancies. In such a case, the evidence of the eye witness“cannot be accepted at its face value”, as observed by thisCourt in Mitter Sen and others V/s State of U.P.”[5]

32. The conviction of the appellants rests on the oral testimonyof PW-1 who was produced as eye witness of the murder of thedeceased. Both the Learned Sessions Judge, as well as High Court haveplaced reliance on the evidence of PW-1 and ordinarily this Court couldbe reluctant to disturb the concurrent view but since there are inherentimprobabilities in the prosecution story and the conduct of eye witnessis inconsistent with ordinary course of human nature we do not think itwould be safe to convict the appellants upon the incorroborated testimonyof the sole eye witness. Similar view has been taken by a Three JudgeBench of this Court in the case of Selvaraj V/s The State of TamilNadu[6][. ]Wherein on an appreciation of evidence the prosecution storywas found highly improbable and inconsistent of ordinary course ofhuman nature concurrent findings of guilt recorded by the two Courtsbelow was set aside.

33. On the facts of the present case it can be said withouthesitation that prosecution has miserably failed to prove the allegedoffences beyond doubt by adducing cogent and trustworthy evidence.

34. In view of the forgoing discussions, we are not able toappreciate the reason given by the Courts below for convicting theappellants for the alleged offences. On the contrary, we are of theconsidered view that prosecution has failed to establish the guilt of theaccused beyond reasonable doubt. The incident does not appear to havehappened in the manner in which the prosecution wants the Court tobelieve it had happened.

35. Since, the prosecution has miserably failed to prove the guiltof the accused beyond doubt the appellants therefore must be givenbenefit of doubt. In the circumstances, we set aside the impugnedorders of the Courts below and allow these appeals. The appellantsare directed to be released forthwith unless required in any other case.

Ankit Gyan

Appeals allowed.

5 (1976) 1 SCC 723

6 (1976) 4 SCC 343

A

BC

D

E

F

G

H