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TMI Blog2017 (11) TMI 2045X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the Accused-Appellant. Whereas the deceased is his uncle, the Appellant is his cousin brother. He claims to have accompanied the Appellant from the video show till the place of occurrence. At the relevant time, he was admittedly intoxicated. The testimony of PW1 with regard to the illicit relationship between the Accused persons, his revelation to the mother of the deceased that he and the co-accused were seen in a compromising position in their house with the door open and the reprimand of the mother (PW3) for the secret talks between them (Accused persons) lack in persuasion to conclude that the prosecution had been able to prove such relationship and therefore, the motive for the murder by them - Dehors testimony of PW1, and the motive as alleged by the prosecution, there is no other tangible and clinching material on record in support of the charge against the Appellant and the co-accused. The inference of motive by the High Court drawn from the evidence of PW1 and PW3, in the overall perspective as discussed hereinabove, is apparently flawed. The unhesitant opinion is that the evidence of PW1, as a witness of incident of murder, as projected by him is wholly unac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e incident of murder. Following this information, the investigation took a different turn. The Appellant and the co-accused were arrested and eventually, charge-sheet was laid against them. 5. Notably, on 26.2.2000, Gunahari Behera (PW6) and Makhan Behera (PW8) also came to the police station and reported that PW1 had disclosed to them as well to have witnessed the Appellant and the co-accused committing murder of Santosh Behera (deceased) in his house and thereafter, hanging the dead body from the roof of the nearby shed. The investigating officer in the process of investigation, amongst others caused the inquest of the dead body to be made, prepared a spot map Ex. P-11, effected seizure, amongst others inter alia of a rope and also got the post-mortem of the dead body done before submitting the charge-sheet as mentioned hereinabove. The formal FIR was registered on 26.2.2000 Under Sections 302/203 read with Section 34 Indian Penal Code. 6. At the trial, the Accused persons were charged Under Sections 302/203/34 Indian Penal Code. They having denied the allegations, were made to stand trial. The prosecution examined as many as 16 witnesses, and after recording the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d senior Counsel for the Appellant has emphatically urged that as the testimony of PW1, the sole eye witness, as claimed by the prosecution, is wholly unbelievable, the conviction of the Appellant is palpably illegal and is liable to set-aside. Apart from contending that the FIR filed after six days of the incident was inexplicably delayed rendering the prosecution case unworthy of any credit, the learned senior Counsel maintained that the High Court has grossly erred in accepting that the motive behind the murder was the illicit relationship between the Accused persons, necessitating the elimination of the deceased. The learned senior Counsel was particularly critical of the unnatural conduct of PW1, who incomprehensibly remained indifferent and silent though his uncle was murdered in his view and that the incident, according to him, ranged for about an hour. Further, his unexplained silence about the gruesome murder by the Accused persons for about three days also rendered him wholly untrustworthy, he urged. Mr. Krishnan argued as well that not only PW1 at the relevant time was admittedly in an intoxicated state, his presence at the place of occurrence was not free from doubt. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 739 10. In refutation, the learned Counsel for the Respondent-state has asserted that the evidence of the sole eye witness PW1 is coherent, consistent and cogent and is fully complemented by medical evidence and thus the prosecution having been able to prove the charge beyond all reasonable doubt, the conviction and sentence of the Appellant and his co-accused does not merit interference. Having regard to the vivid narration of the incident in minute details, as provided by PW1, the courts below were perfectly justified in relying on his sole testimony, he urged. As the medical evidence, mentioning the cause of death, is wholly corroborative of the version of PW1, there is no scope to doubt the culpability of the Accused persons, he argued. The learned Counsel dismissed the demur of the defence that the evidence of PW1 was vitiated by contradictions, embellishments and inconsistencies. According to Mr. Misra, the statement on oath of PW1 is amply supported by that of Kumari Nomita Behera (PW2), the daughter of the deceased and PW12, who, in the next morning, did detect the dead body of the deceased in a hanging posture from the roof of the adjacent shed, as deposed by PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Pravati Behera entered first and when the deceased was about to enter, the Appellant struck him twice from the back, as a result of which, he (deceased) fell down. According to the witness, the Appellant sat on the chest of the deceased and pressed his neck by his hands and Pravati Behera covered his mouth with her hands, as a result of which the deceased soon became suffocated and died. The witness stated that thereafter the Accused persons brought a rope, tied it around the neck of the deceased and suspended the dead body from the roof of the adjacent shed. Thereafter, the Appellant locked Pravati Behera in the house from outside and threatened to kill him, if he disclosed the offence to anyone, whereafter the witness returned home. PW1 stated that it was three days thereafter that he narrated the incident to PW5, PW6 and PW8. 12. In cross-examination, the witness in substance stated that his house, that of the deceased, PW12 and other relatives were located nearby and that the courtyard in between his house and that of the deceased measured about 15 cubits. The witness conceded that there were about 150 to 200 houses adjacent to his house, situated at a distance of 20 to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore recording the final conclusions on the basis of the evidence on record, beneficial it would be to briefly note the legal propositions enunciated in the authorities cited at the Bar. 17. That conviction can be based on a testimony of a single eye witness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, have been propounded consistently in Anil Phukhan (1993) 3 SCC 282, Ramji Surya (1983) 3 SCC 629, Patnam Anandam (2005) 9 SCC 237 and Gulam Sarbar (2014) 3 SCC 401 with the apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a ring of truth and it is cogent, credible, trustworthy or otherwise. 18. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan (2014) 14 SCC 589 19. With reference to Section 3 of the Evidence Act, which defines proved , disproved and not proved , this Court in Lokeman Shah and Anr. v. State of West Bengal AIR 2001 SC 1760 recalled its observations in M. Narsinga Rao v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'. 21. The quintessence of the enunciation is that the expression proved , disproved and not proved , lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure proof , full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved. 22. It is on the touchstone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 302/203/34 Indian Penal Code against the Appellant and the co-accused on the disclosures made by PW1, PW5, PW6 and PW8. Apart from the fact that testimony of PW5, PW6 and PW8 can by no means be construed to be substantive in nature, these witnesses having derived the knowledge from PW1, we are inclined to accept the analysis of the materials on record on the aspect of motive as made by the Trial Court. 23. The testimony of PW1 with regard to the illicit relationship between the Accused persons, his revelation to the mother of the deceased that he and the co-accused were seen in a compromising position in their house with the door open and the reprimand of the mother (PW3) for the secret talks between them (Accused persons) lack in persuasion to conclude that the prosecution had been able to prove such relationship and therefore, the motive for the murder by them. The medical evidence to the effect that death had occurred by asphyxia as a result of constriction of the neck and not due to hanging by rope, though conforms to the manner of execution of the offence, as narrated by PW1, in view of inherent improbabilities and incongruities in his evidence, we do not cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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