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2012 DIGILAW 59 (CHH)

SALIKRAM v. STATE OF M. P.

2012-02-15

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon 'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 17th of August, 1994 passed in Sessions Trial No. 332/1991 by the Additional Sessions Judge, Mahasamund. 2. By the impugned judgment, the appellants have been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 3. The facts, briefly stated, are as under: 19 persons were prosecuted for the offences punishable under Sections 148, 302/149, 120-B and 201 IPC on the allegations that on 28.2.1991, at about 8.00 p.m., they formed an unlawful assembly, participated in rioting with deadly weapons and in furtherance of the common object of the said assembly, they committed murder of deceased Amar Singh. There were 6 eyewitnesses to the incident namely- Mehattar Singh (PW-1), Baliram (PW-2), Bhagatram (PW-6), Kunwar Singh (PW7), Tulsiram (PW-12) and Dukhuram (PW-15). Out of the above 6 eye-witnesses, Mehattar Singh (PW-1), Baliram (PW-2) and Bhagatram (PW-6), turned hostile. The learned Sessions Judge did not rely on the testimonies of Kunwar Singh (PW-7), Tulsiram (PW-12) and Dukhuram (PW-15), though they were not declared hostile. The Sessions Judge also did not rely on the testimonies of Mehattar Singh (PW-1) and Bhagatram (PW-6). However, relying on the testimony of Baliram (PW-2), the Sessions Judge came to the conclusion that out of 19 accused persons, only 2 appellants, i.e. Salikram and Mohanlal (A-2 and A-3), participated in assault of the deceased. It was not a case of formation of an unlawful assembly, therefore, 17 accused persons were acquitted and the above 2 accused persons were convicted as aforementioned. 4. Smt. Renu Kochar, learned counsel appearing on behalf of the appellants, argued that Baliram (PW-2) was also declared hostile. There are many contradictions in his evidence. In fact, he was held to be partly reliable and even without any corroboration by further evidence, conviction has been awarded to the appellants. 5. On the other hand, Shri J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. 7. 5. On the other hand, Shri J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. 7. The learned Sessions Judge did not find that the accused persons formed an unlawful assembly, participated in rioting with deadly weapons and the deceased was assaulted in furtherance of the common object of the alleged unlawful assembly. Out of 6 eyewitnesses, the evidence of 5 eyewitnesses was found to be unreliable by the learned Sessions Judge. However, relying on the sole testimony of Baliram (PW -2), the conviction has been awarded. 8. In Vadivelu Thevar Vs. The State of Madras : AIR 1957SC614, the Supreme Court held that the evidence has to be weighed and not counted as Section 134 of the Evidence Act recognized that no particular number of witnesses shall, in any case, be required for the proof of any fact. It is sound principle 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. It was held that generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable, (2) wholly unreliable and (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 equality 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. 9. Further, the same view was reiterated by the Supreme Court in Lallu Manjhi and Another Vs. State of Jharkhand, (2003) 2 SCC 401. It was held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. 9. Further, the same view was reiterated by the Supreme Court in Lallu Manjhi and Another Vs. State of Jharkhand, (2003) 2 SCC 401. It was held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. In the present case, it is not possible for the court either to place implicit reliance on or to totally discard the testimony of the deceased's brother (PW-9), who was the sole eyewitness, as it can neither be called wholly reliable nor wholly unreliable. 10. In the instant case, Baliram (PW-2) is held to be partly reliable by the Sessions Judge. In examination-in-chief, he deposed that he saw 5 accused persons, including the 2 appellants, assaulting the deceased. He did not take the names of other accused persons. It is on this account, he was declared hostile by the Public Prosecutor. When he was faced with his case diary statements (Ex.P/3), he denied to give such statements to the Police and further added that his court statement, which he deposed earlier, was correct. Even he denied the suggestion that other accused persons were also present at the place of occurrence and they had also participated in assaulting the deceased. According to this witness, the 2 appellants were armed with lathis and they assaulted the deceased by lathis. 11. The contents of the postmortem report would show that the deceased had received as many as 14 injuries, out of which, many injuries were incised wounds, which could have been caused by sharp edged weapons. The learned Sessions Judge has taken this fact as one of the grounds for disbelieving the testimonies of other eyewitnesses that their version was not corroborated by the medical evidence. We find same position in relation to Baliram (PW-2) also. The learned Sessions Judge has taken this fact as one of the grounds for disbelieving the testimonies of other eyewitnesses that their version was not corroborated by the medical evidence. We find same position in relation to Baliram (PW-2) also. His version is also not corroborated by the medical evidence as according to him, the appellants were holding lath is and the deceased had sustained many incised injuries. We further note that Baliram (PW-2) has chosen the 2 appellants among the 19 accused persons about whom he had deposed before the Police. This also makes his evidence shaky. 12. On appreciation of the entire evidence, we find that the conviction has been awarded on solitary evidence of Baliram (PW-2), who was held to be partly reliable. His evidence is not corroborated by the medical evidence and other materials available on record. Therefore, on the principles laid down in the above 2 judgments of the Supreme Court, we do not find it safe to rely on the sole testimony of Baliram (PW-2) for convicting the 2 appellants in the above manner. We are of the view that in absence of corroboration to the solitary testimony of partly reliable witness, the conviction of the appellants cannot be sustained. 13. For the foregoing reasons, we allow this appeal and set aside the conviction and sentences awarded to the appellants under Section 302 IPC. 14. The appellants are acquitted of the charges framed against them. The appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal Allowed.