JUDGMENT Honble Imtiyaz Murtaza, J.— Present appeal has its genesis in Sessions Trial No. 64 of 1999 wherein it would appear, four accused persons namely Basant Lal Dubey, Lalji Dubey, Gyan Prakash Dubey and Om Prakash Dubey were tried by learned Addl. Sessions Judge (E.C. Act) Mirzapur for offences under Sections 302/34, 504, I.P.C. 2. By means of judgment and order dated 26.5.2008, the learned Trial Judge recorded verdict convicting appellants under Section 302/34, IPC and awarded capital punishment and a fine of Rs. 20,000/- each with default stipulation. 3. A composite appeal has been preferred by the appellants impugning therein the judgment and order of the learned Sessions Judge dated 26.5.2008. 4. The occurrence leading to the prosecution case dates back to 26.11.1998. The F.I.R. the author of which is Kamla Kant Dubey resident of village Datti Patti P.S. Vindhyachal District Mirzapur was lodged which was registered at case crime No. 389 of 1998 under Sections 302/34 and 504, IPC alleging therein Brahma Deen, his uncle (husband of paternal aunt) who was childless and was a native of village Bhaidpur, had shifted and started living in village Datti Patti for the last five years. He had executed sale deed of his agricultural land admeasuring 10 Bigha in favour of Rama Kant Dubey for a sale consideration of Rs. 1,50,000/-. It is further alleged that he (deceased) also executed a second sale deed of land admeasuring six Bigha situated in village Jopa in favour of Sushil Kant for a sale consideration of Rs. 1 lac. It is further alleged that since accused Basant Lal had a covetous eye over the land, he set up a person personating as Brahma Deen and played fraud of obtaining sale deed in relation to self same agricultural land as aforesaid in his favour. This triggered a civil dispute and litigation was being slugged out in Civil Court Mirzapur besides proceedings for mutation of names in the revenue record. On account of pending litigation, it is further alleged, accused Basant Lal and his sons namely Lalji, Om Prakash and Gyan Prakash were nurturing vengeance against his family and his uncle Brahma Deen Dubey and as a sequel to animosity as aforesaid, accused Basant Lal and others had done to death his father on 16.11.94 while his father was on way back to his house after ploughing the field. The aforesaid civil litigation was lingering on the date of commission of offence in which Brahma Deen was the only pivotal witness who could turn the scale of justice by his deposition and on the day of occurrence, ostensibly with the intention of annihilating the said witness from the scenario, the accused persons hatched the plan of murdering Brahma Deen. According to further allegation, on 26.11.98 while Brahma Deen was on way to a place near the orchard to answer the call of nature at about 8 a.m., he was seen by the accused persons who were seated on tractor. Upon seeing Brahma Deen Dubey, Basant Lal yelled, exhorting his sons that he (Brahma Deen Dubey) be done to death and he should not escape. Upon being instigated, Om Prakash who was at the driver’s seat, swivelled the tractor and ran it over him. To be doubly sure that Brahma Deen Dubey does not escape alive, Om Prakash drove the tractor over the deceased many a time as a result of which Brahma Deen Dubey died instantaneously. The informant, it is further alleged, was also on way back to a place near the orchard for answering the call of nature alongwith the deceased and upon seeing the incident, he cried for help. However, the accused persons escaped with the tractor from the scene of occurrence. The report of the occurrence was lodged at P.S. Vindhyachal at 9.30 a.m on 26.11.1998. 5. The investigation of the case, it would appear, was taken over by S.O. Om Prakash Singh and he, to begin with, recorded the statement of informant at the police station, and thereafter proceeded to police station alongwith S.I. Mushtaq Ahmad and others. The Panchnama was prepared by S.I. Mushtaq Ahmad on the instruction of S.O. Om Prakash Singh. Thereafter, the papers were processed for post mortem of the deceased and the dead body was entrusted to Constable Sanjay Kumar for being escorted for post mortem examination. The investigating officer thereafter prepared the site plan, and collected blood stained and simple earth and sealed the same accordingly. The investigating officer also took in possession the Bamboo stick, Lota, slipper etc. and prepared memo Ext. Ka 16. In the course of investigation, the investigating officer seized the tractor involved in the occurrence on 27.11.1998 and one of the accused was also taken into custody for interrogation. The investigating officer also took in possession the Bamboo stick, Lota, slipper etc. and prepared memo Ext. Ka 16. In the course of investigation, the investigating officer seized the tractor involved in the occurrence on 27.11.1998 and one of the accused was also taken into custody for interrogation. On 28.11.1998 the investigating officer recorded statements of witnesses of inquest. Thereafter, he came to know that the other accused persons had surrendered in the Court and therefore, their statements were also recorded in jail. After completing the investigation, the charge-sheet was submitted in the Court. The case was committed to the Court of Sessions on 24.3.1999. 6. The post mortem on the dead body of the deceased was conducted by Dr. K.N. Mehrotra on 27.11.1998 at 12.30 noon and following ante mortem injuries were found on the person of the deceased : 1. 5 cm. x 2 cm. lacerated wound eye and forehead, eye ball is protruding and bursted 2. 7 cm. x 7 cm. contusion with swelling on left eye. 3. 19 cm. x 4 cm. abrasion on front of right knee and upper-leg. 4. 9 cm. x 7 cm. abrasion left upper leg at a medial aspect 13 cm. below nee joint. 5. 3 cm. x 1 cm. abrasion over posterior of right lower arm 6. 5 cm. x 7 cm. contused swelling over left chest underlying ribs were broken. 7. The prosecution, in order to substantiate its case, examined as many as six witnesses namely, P.W. 1 Kamal Kant Dubey, P.W. 2 Sushil Kant Dubey, P.W. 3 Shyam Narain, P.W. 4 Dr. K.N. Mehrotra, P.W. 5 S.I. Heera Lal and P.W. 6 Om Prakash. Out of the witnesses, P.W. 1 Kamal Kant Dubey is the lone ocular witness. 8. The accused in their statements recorded under Section 313, Cr.P.C. denied the incriminating evidence appearing against them. They pleaded that they have been falsely implicated in the case and claimed to be innocent. However, the accused persons did not adduce any evidence in support of their defence. 9. The trial Court on appraisal of the entire evidence on record held the accused persons guilty of charges and convicted them under Section 302/34, IPC and awarded capital punishment. 10. Being aggrieved by the judgment and order of the trial Court, the accused persons preferred the present appeal. 11. 9. The trial Court on appraisal of the entire evidence on record held the accused persons guilty of charges and convicted them under Section 302/34, IPC and awarded capital punishment. 10. Being aggrieved by the judgment and order of the trial Court, the accused persons preferred the present appeal. 11. We have heard Sri Gopal Chaturvedi, learned Senior Advocate assisted by Sri A.S. Pandey and R.S. Pandey, learned counsel appearing for the appellants and Sri D.R. Chaudhary, learned A.G.A. appearing for the State. 12. The learned counsel for the appellants began his arguments canvassing that the entire prosecution case hinges on single eye-witness which is not sufficient and convincing to warrant the conviction of the appellants. It is further canvassed that the evidence of P.W. 1 could not be accepted as he is both interested and partisan witness related to the deceased. It is further canvassed that the ocular witness in his deposition has given a concocted version which casts severe doubts about truthfulness of the prosecution case. It is further canvassed that there is no reliable evidence brought on record to prove that the appellants also shared common intention to murder the deceased and in absence of such evidence, the appellants could not be convicted for offence punishable under Section 302 read with Section 34, IPC. The learned counsel also argued that capital punishment errs on the side of severity and the facts and circumstances do not warrant death sentence as awarded by the trial Court. Per contra, learned A.G.A. supported the prosecution case and also canvassed for the correctness of the view taken by the trial Judge and award of capital punishment. 13. In order to appreciate the aforesaid rival contentions of the learned counsel for the parties, we have independently scrutinised the oral and documentary evidence appearing on record. 14. P.W.1 Kamla Kant Dubey in his deposition stated that the deceased was related to him as his uncle (husband of paternal aunt) who was a native of Bhaidpur village within the circle of P.S. Vindhyachal and he had agricultural land in village Jopa. It is further deposed that since he was childless, he executed sale deed of his agricultural land admeasuring six Bigha in favour of Rama Kant Dubey for sale consideration of Rs. It is further deposed that since he was childless, he executed sale deed of his agricultural land admeasuring six Bigha in favour of Rama Kant Dubey for sale consideration of Rs. 1 lac and again he executed sale deed of agricultural land admeasuring 10 bigha in favour of Sushil Kant Dubey for a sale consideration of Rs. 1.50 lac. This was resented by accused Basant Lal and he got a sale deed executed fraudulently by setting up a person personating himself as Brahma Deen Dubey in Calcutta. When the fraud was debunked, a civil litigation erupted which was on the date of incident, pending in the Court of Munsif at Mirzapur. Besides the above litigation, the mutation proceedings were also being slugged out between accused Basant Lal on one hand and Rama Kant and Brahma Deen on the other hand. It is further deposed that this furnished foundation for nurturing of vengeance by the accused persons towards the family of the informant and deceased and on account of enmity, Brahma Deen had shifted to village Datti Patti about five years back. It is further deposed that on account of enmity, the accused persons had also thwacked the deceased prior to the occurrence and a criminal case was also pending against the accused persons. The witness also deposed that on 16.11.1994, while his father Kedar Nath Dubey was on way back after ploughing the field on a tractor, the accused persons had committed murder of his father and in that incident, the informant had also suffered injuries. He further deposed that since the accused persons were seething with anger on account of civil litigation on account of fraudulent sale deed executed by setting up a person pending in the Court of Munsif at Mirzapur, in which Brahma Deen deceased was the pivotal person who could turn the scale of justice against the accused persons, they committed murder of Brahma Deen. Narrating the incident, the witness deposed that on 26.11.1998 at 8 a.m. when he and deceased were on their way to a place near Orchard for answering the call of nature, the accused persons were seen riding their tractor and on seeing them, the accused persons swivelled the tractor to their side from the thorough fare running parallel to canal and when they approached nearer, accused Basant Lal gave exhortation to his sons to kill Brahma Deen Dubey. Responding to the exhortation, Om Prakash Dubey who was at the Driver’s seat, initially dashed the tractor against Brahma Deen and when he fell down on the ground, the tractor was driven over him repeatedly as a result of which he died instantaneously. 15. P.W. 2 is Sushil Kant Dubey. He also deposed that the deceased was related to him as his uncle. The witness is younger brother of P.W. 1. He supported the prosecution case in all material particulars about pending litigation and consequent enmity stating that the accused persons bore animus against them on account of sale deed executed by the deceased in relation to the agricultural land situated in village Jopa. He also reiterated the self same facts as narrated by P.W. 1 in his statement happening prior to the day of occurrence. On the day of occurrence, he deposed that he was at his house and on being informed by his brother, he rushed to the place of occurrence and saw the dead body in mutilated condition. He also deposed that he scribed the report on the dictation of P.W. 1 his elder brother. 16. P.W. 3 is Shyam Narain, son of Rama Nand Tiwari resident of Dogar Keri P.S. Lalganj. He deposed that on the day of occurrence he was present in the village as he happened to be in the village Datti Patti in order to assist in cutting Bamboo crop. At about 8 a.m. when he was on way to Koth of Bans situated towards south of the road, he heard yelling and hollering. On paying rapt attention to the cries, he discerned it to be the voice of Kamla Kant Dubey P.W. 1 who was crying that the accused persons have killed Brahmadeen by driving tractor over him. He deposed that the accused persons escaped towards west side on the tractors. He explained that one week prior to the occurrence, he had purchased Bamboo crops from Brahma Deen and on that day, he had gone to the village on a cycle for assisting in harvesting the bamboo crop. 17. P.W. 4 is Doctor K.N. Mehrotra who conducted post mortem report. He proved the post mortem report and injuries noted therein. In his deposition he stated that the deceased was aged about 90 years. He opined that the causative factor of death was the shock and haemorrhage. 17. P.W. 4 is Doctor K.N. Mehrotra who conducted post mortem report. He proved the post mortem report and injuries noted therein. In his deposition he stated that the deceased was aged about 90 years. He opined that the causative factor of death was the shock and haemorrhage. He also opined that the deceased may have died 30 hours prior to the post mortem conducted on the body. He also deposed that there could be variation of six hours both way with regard to timing of death. He also opined that the deceased died as a result of injuries suffered by him. 18. P.W. 5 is S.I. Heera Lal. He deposed that on the day of occurrence, he was posted as Head Moharrir in the police station and he prepared the F.I.R. on the basis of written report Ex. Ka 1. He refuted the suggestion that he prepared the chik F.I.R. subsequently. 19. P.W. 6 is S.S.I. Om Prakash. He deposed that he investigated the case and on his instruction, S.I. Mushtaq prepared the inquest report. He also proved the Exts. 7 to 12, Ka 13, Ka 14, Ka 15, Ka 16 etc. He also deposed that the accused persons went missing soon after the occurrence and out of them Basant Lal and Lalji surrendered in the Court on 9.12.98. Subsequently, proceeding under Section 83 were embarked upon for securing presence of Om Prakash accused. He also deposed that after the occurrence, he noticed rutted marks of tractor wheel. 20. As regards the submission that there is a clear contradiction between medical testimony and the ocular account, it would be useful to discuss what has been opined by the Doctor conducting autopsy. 21. In the case in hand, the death of the deceased is not in the realm of doubt. The counsel for the appellant has propounded that it was a case of accidental death by some unknown persons and in order to falsely implicate the appellants, P.W. 1 Kamal Kant Dubey has given the case a complexion of murder by the appellants. Regard being had to the arguments, we have gone through the post mortem report from which it transpires that the deceased had sustained in all six ante mortem injuries. 22. The injury No. 1 is a lacerated wound of the dimension of 5 cm x 2 cm on right eye and forehead. Regard being had to the arguments, we have gone through the post mortem report from which it transpires that the deceased had sustained in all six ante mortem injuries. 22. The injury No. 1 is a lacerated wound of the dimension of 5 cm x 2 cm on right eye and forehead. Injury No. 2 is also on left eye of the dimension of 7 cm. x 7 cm. Injury No. 3 is of the dimension of 19 cm. x 4 cm. It is abrasion on front of right knee and upper leg. Injury No. 4 is of the dimension of 9 cm. x 7 cm. It is abrasion on left upper leg at a medial aspect 13 cm below knee joint. Injury No. 5 is also an abrasion of the dimension of 3 cm. x 1 cm. It is over posterior of right lower arm. Injury No. 6 is a contused swelling of the dimension of 5 cm. x 7 cm. over left chest. It would crystallize from the above injuries that only injury No. 1 and injury No. 6 caused internal damage. The other injuries have not had the effect of causing any internal damage. 23. The counsel for the appellant submits that ante mortem injuries is in conflict with ocular account. In this connection, we may advert again to the prosecution case according to which the deceased was repeatedly crushed under the wheels of the tractor. Our particular attention was drawn to injury No. 1 which could be result of the crushing by the wheel of tractor but in so far as injury No. 6 is concerned, it is only on the left part of chest resulting in internal damage to the ribs but had he been crushed under the tyres, then right chest should have also sustained similar injuries. By this reckoning, the medical evidence belies the prosecution case that the deceased was repeatedly crushed under the wheels of the tractor. In the circumstance the submission of the learned counsel gains ground that the deceased came under the wheel of the unidentified tractor by accident and the version of P.W.1 with regard to this vital fact appears to be inherently improbable and intrinsically incredible and therefore, the same cannot be accepted. 24. In the circumstance the submission of the learned counsel gains ground that the deceased came under the wheel of the unidentified tractor by accident and the version of P.W.1 with regard to this vital fact appears to be inherently improbable and intrinsically incredible and therefore, the same cannot be accepted. 24. The learned counsel for the appellants next submitted that the testimony of sole eye-witness namely P.W.1 is not wholly reliable citing the instance that he has introduced in his statement given in Court P.W. 3 Shyam Narain as the person present at the time of occurrence. The learned Sessions Judge in his judgment has categorically converged to the conclusion having reckoned with the materials on record that the presence of P.W. 3 at the time of occurrence was within the realm of doubt and in vindication of his stand, the learned Sessions Judge has observed in his finding that firstly, his name did not find place in the F.I.R. and secondly, his name was not mentioned in his statement by the informant recorded under Section 161 of the Cr.P.C. In disbelieving the P.W. 3, it was also highlighted in his judgment by the learned Sessions Judge that the shop of the first informant was adjacent to the shop of Shyam Narain P.W. 3 and he had been known to the family of the first informant for a period spanning over 15 years and that the story of purchasing bamboo crop was introduced by the witness under scrutiny. It is in this context that the learned Sessions Judge disbelieved his testimony. The learned counsel further submitted that P.W. 1 has also modulated his statement to suit the prosecution case. To be precise, he submitted that in the first information report, the role of exhortation is assigned to Basant Lal and Om Prakash. In statement under Section 161, Cr.P.C. he did not specifically name Lalji and Gyan Prakash as the persons who had exhorted at the time of occurrence. Again in the first information report, the case of the prosecution was that the deceased and informant had gone to answer the call of nature. He also mentioned that in the midst of relieving himself, he got up and fled towards the village raising alarm. Again in the first information report, the case of the prosecution was that the deceased and informant had gone to answer the call of nature. He also mentioned that in the midst of relieving himself, he got up and fled towards the village raising alarm. In the site plan, the place of first informant is mentioned at the chak road while the Sessions Judge has erroneously mentioned in his judgment that in the site plan, the places have been shown where the deceased and first informant were easing themselves and it is not mentioned in the site plan that first informant and the deceased were answering the call of nature. 25. The learned Sessions Judge has recorded the finding that the tractor of Basant Lal was involved in the commission of crime and the accused persons reached the place of occurrence on the tractor of Basant Lal. In para 44 of the judgment, he placed reliance on certain orders passed by the Magistrate releasing the tractor No. UKG 2158 in favour of Basant Lal and it was also mentioned that some technical examiner’s report was also submitted in regard to offending tractor. In connection with his finding, the learned Sessions Judge has referred to an application of release moved before the C.J.M. Mirzapur alleged to have been moved through his Advocate seeking release of the tractor on the ground that the same is required for harvesting and thrashing of the standing crops. In the context of this finding, it must be noticed here that P.W. 6 Om Prakash Singh, investigating officer has clearly stated that he searched for the tractor on 26.11.98 and during investigation and till submission of the charge-sheet, the tractor was not shown to have been recovered. No such technical report as alleged by the Sessions Judge is to be found on the record. The esoteric aspect of the matter is—how the learned Sessions Judge recorded the finding that the tractor in question was subjected to technical examination when there is nothing on record of its being recovered or sent for technical examination. Further there is nothing anywhere in the testimonies of any of the witnesses that the tractor was seized or recovered or it was technically examined. Further there is nothing anywhere in the testimonies of any of the witnesses that the tractor was seized or recovered or it was technically examined. Moreover, this fact that the tractor of Basant Lal was involved in the crime or there was any application for its release in favour of Basant Lal or that some report of technical examiner was submitted, was not posed to the accused Basant Lal under Section 313, Cr.P.C. Needless to say, it has been held by the Apex Court in various decisions that unless incriminating circumstance is put to the accused under Section 313, Cr.P.C. that cannot be read against him. 26. The motive for committing the crime has been proved by P.W. 1 Kamla Kant and P.W. Susheel Kant Dubey and P.W. 2 is not an eye-witness. The counsel for the appellant argued that proof of motive by itself is not sufficient to hold appellant guilty and motive is a double edged weapon and it cuts both ways. The existence of a motive on the part of an accused may be held to be the reason for committing the crime, the same may also lead to false implication. 27. The next emphatic submission of the learned counsel that the conviction in the present case cannot be based on single testimony when there is no corroboration thereof. It brooks no dispute and it is well enunciated by the various decision of the Apex Court that single testimony could be relied upon by the Court for convicting the person provided it inspires full confidence and it should be of very high quality on which implicit reliance can be placed. It is also settled that when the witness is neither reliable nor unreliable it needs corroboration and the conviction on the testimony of solitary witness is legal if he is wholly reliable. 28. In Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , the Apex Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under : (AIR p. 619, paras 11-12) “Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely : (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses." 29. Vadivelu Thevar case (supra) was referred to with approval in the case of Jagdish Prasad v. State of M.P., AIR 1994 SC 1251 . The Apex Court held that as a general rule, the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony, the Courts will insist on corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time­honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time­honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. 30. In the light of the above, we proceed to examine whether the P.W. 1 falls in the category of wholly reliable witness or otherwise. As noticed supra, the statement of P.W. 1 is replete with various infirmities which clearly indicates that P.W. 1 Kamal Kant Dubey is not wholly reliable. He has modulated the statement to suit the prosecution case. He has attributed the role of exhortation to two accused which he did not specifically mention in the F.I.R. and in his statement under Section 161, Cr.P.C. Sessions Judge has also recorded the finding of involvement of two accused namely Lalji and Gyan Prakash on conjectures and surmises. The learned Sessions Judge has also held in paragraph 40 ostensibly overstraining the human nature that “it is quite natural that it is not possible that one person may exhort and other may keep mum”. The learned Sessions Judge further held that Lalji and Gyan Prakash must not have kept their mouths shut and they must have committed some overt acts and therefore, there is nothing to doubt the testimony of the witness. The learned Sessions Judge also found as would appear from para 41 of the judgment that P.W. 3 was not present at the time of occurrence and that from the evidence on record, it leaves no manner of doubt that he has introduced P.W. 3 as eye-witness to lend cogency to the prosecution case. 31. In sum, the ocular account of P.W. 1 stands falsified on vital points firstly that he introduced the P.W. 3 as being present on the occurrence who had already been rightly disbelieved by the learned Sessions Judge and secondly, his evidence is incongruous with the medical evidence that the deceased was repeatedly crushed under the wheels of the tractor. 31. In sum, the ocular account of P.W. 1 stands falsified on vital points firstly that he introduced the P.W. 3 as being present on the occurrence who had already been rightly disbelieved by the learned Sessions Judge and secondly, his evidence is incongruous with the medical evidence that the deceased was repeatedly crushed under the wheels of the tractor. He has also changed the place of occurrence inasmuch as in the F.I.R. occurrence is shown to have taken place when he and deceased were going on Chak road and later-on, he had improved upon the same stating that he and the deceased were answering the call of nature. Lastly, it may be noted that the P.W.1 has also assigned role of overt-acts to the two accused Lalji and Gyan Prakash i.e., that of exhortation, for the first time in his statement before the Court in the trial notwithstanding the fact that this very witness did not specifically name the aforesaid accused in his statement under Section 161, Cr.P.C. 32. For the reasons discussed above, we allow this appeal and give clean acquittal to the appellants. The appellants who are in jail shall be released forthwith unless wanted in any case. 33. In the light of the above discussion, Reference No. 6 of 2008 is rejected. ————