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TMI Blog2019 (8) TMI 1891X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of materials available against the Appellants on the sole testimony of PW-1 which is common to all the Accused in so far as assault is concerned, we do not consider it safe to accept her statement as a gospel truth in the facts and circumstances of the present case. If PW-1 could have gone to the police station alone with her sister-in-law at an unearthly hour, there had to be an explanation why it was delayed by six hours. Given the harsh realities of times, it is found virtually impossible that two women folk went to a police station at that hour of the night unaccompanied by any male. These become crucial in the background of the pre-existing enmity between the parties leading to earlier police cases between them also. The poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in convicting with the aid of Section 34 in absence of a charge framed under that Section. There is no evidence of any common intention, displaying a prior meeting of minds to commit the assault. PW-1 and PW-8 were not eye witnesses. They reached after the occurrence. Their claim to be eye witnesses is highly improbable from their own evidence. An alternative submission was made that in any event at best it was a case for conviction Under Section 304 Part-II I.P.C. Reliance was placed on Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145, and Sakharam Nangare v. State of Maharashtra, 2012 (9) SCC 249. 3. Learned Counsel for the State submitted that PW-1 and PW-8, the eye-witnesses to the occurrence had stated that Appellant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er two have been given up by the prosecution and have not been examined. All four are stated to have moved away from the place of assault out of fear, as claimed. If three of them were possessed of weapons there has to be an explanation why they did not act in self defence when the assault is alleged by lathis, gandasi and guns. It is also difficult to accept that her husband PW-8 and Palli continued to hide in fear while PW-1 accompanied by her sister-in-law alone shortly returned to the place of occurrence to check on the deceased. An additional fact which is not only improbable but highly unnatural according to normal societal rural customs and mores is that PW-1 accompanied by her sister-in-law alone went to the police station at 3.00 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself observed that her deposition does not contain the entire truth and it makes the court to sit up and to find out the kernel out of the chaff . This observation assumes significance in view of the acquittal of the remaining Accused by the Trial Court itself, excluding the juveniles. 8. The question that arises to our mind is that in the mob assault by 13 persons who had surrounded the deceased at night, PW-1 was the sole eye-witness. Even if a light was burning some of them undoubtedly must have had their back to PW-1 making identification improbable if not impossible. The witness has been severely doubted both by the trial court and the High Court to grant acquittal to the other Accused. Can the evidence of a solitary doubtful eye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding incised wounds, by two Accused is considered highly improbable. 10. Therefore, in the entirety of the facts and circumstances of the case, the relationship between PW-1 and the deceased, the existence of previous animosity, we do not consider it safe and cannot Rule out false implication to uphold the conviction of the Appellants on the evidence of a doubtful solitary witness, as observed in State of Rajasthan v. Bhola Singh and Anr., AIR 1994 SC 542, (Crl. Appeal No. 65 of 1980 decided on 25.08.1993): 4. From the above-stated facts, it can be seen that the case is rested entirely on the solitary evidence of P.W. 1. The High Court has pointed out several infirmities in the evidence of P.W. 1. It is well-settled that if the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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