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2014 DIGILAW 679 (PAT)

Lallan Pathak v. State of Bihar

2014-06-18

I.A.ANSARI, SAMARENDRA PRATAP SINGH

body2014
JUDGMENT : I. A. ANSARI, J.:–Under challenge, in the present appeals, are the judgment, dated 25.09.2007, of conviction, in Sessions Trial No. 887 of 2004, by learned Sessions Judge, East Champaran at Motihari, and the order, dated 27.09.2007, whereby various sentences have been passed against the accused-appellants. 2. By the impugned judgment, the learned trial Court has convicted the accused-appellant, Mukesh Pathak @ Chutul Pathak, under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959. So far as the remaining two accused-appellants, namely, Lallan Pathak and Krishna Kant Sharma are concerned, they have been, under the impugned judgment, convicted under Section 302 read with Section 34 of the Indian Penal Code. For his conviction under Section 302 of the Indian Penal Code, the accused-appellant, Mukesh Pathak @ Chutul Pathak, has been sentenced to undergo imprisonment for life and, for his conviction under Section 27 of the Arms Act, 1959, the accused-appellant, Mukesh Pathak @ Chutul Pathak, has been further sentenced to undergo rigorous imprisonment for three years. For their conviction, under Section 302 read with Section 34 of the Indian Penal Code, the remaining two accused-appellants, namely, Lallan Pathak and Krishna Kant Sharma, have been sentenced to undergo imprisonment for life. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be set out as under:— (i) On 08.05.2003, at about 02:30 PM, Prem Nath Pathak (since deceased) went out of his house to Mehsi Bazaar for purchasing grill and, at about 4:00 PM, on that very day (i.e. 08.05.2003), sound of firing was heard by Prem Nath Pathak’s wife, Usha Devi (PW 4), her son, Amit Kumar Pathak (PW 9), and their co-villagers. When they all rushed out of their houses, they saw Mukesh Pathak @ Chutul Pathak, who was holding a small fire-arm in his hand, shooting at Prem Nath Pathak. At that time, along with accused Mukesh Pathak @ Chutul Pathak, accused Krishna Kant Sharma and accused Lallan Pathak were also present. While, however, accused Lallan Pathak was standing with Mukesh Pathak @ Chutul Pathak, Krishna Kant Sharma was sitting on a motorcycle, which had no number plate and whose engine had not been switched off. Immediately, after shooting at Prem Nath Pathak, accused Mukesh Pathak @ Chutul Pathak sat on the said motorcycle and fled away, while Lallan Pathak ran away to his house. Immediately, after shooting at Prem Nath Pathak, accused Mukesh Pathak @ Chutul Pathak sat on the said motorcycle and fled away, while Lallan Pathak ran away to his house. Injured Prem Nath Pathak told his wife (PW 4) and others that he had been shot at by Mukesh Pathak @ Chutul Pathak and, then, he fell unconscious. (ii) Though injured Prem Nath Pathak was taken to the Primary Health Centre, Mehsi, the doctor declared him dead. (iii) The reason, behind shooting Prem Nath Pathak, was that the wife of Mukesh Pathak @ Chutul Pathak had died about a month back and police had been investigating the cause of her death and it was suspected by accused Mukesh Pathak @ Chutul Pathak that Prem Nath Pathak and the members of his family were the ones, who had reported to the police and, therefore, Mukesh Pathak @ Chutul Pathak and his family bore a grudge against Prem Nath Pathak. (iv) On being informed about the occurrence, as regards the occurrence, the police arrived at Primary Health Centre, Mehsi, on 08.05.2003, at about 04:10 PM, where Amit Kumar Pathak (PW 9), son of the said deceased, told the police how the occurrence had taken place. The information, so given by Amit Kumar Pathak (PW 9), was reduced into writing in the form of fardbayan. (v) Treating the said fardbayan (Exhibit-4) as First Information Report, Mehsi Police Station Case No. 34 of 2003 was registered, under Sections 302/120B/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against all the said three accused persons, namely, (i) Mukesh Pathak @ Chutul Pathak, (ii) Lallan Pathak, and (iii) Krishna Kant Sharma. (vi) During investigation, police visited the place of occurrence and also held inquest over the said dead body, which was subjected to post mortem examination, and, on completion of investigation, charge sheet was laid, under Sections 302/120B/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against all the accused persons, namely, (i) Mukesh Pathak @ Chutul Pathak, (ii) Lallan Pathak, and (iii) Krishna Kant Sharma. 4. At the trial, when charges, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed against accused Krishna Kant Sharma and accused Lallan Pathak, they pleaded not guilty thereto. 4. At the trial, when charges, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed against accused Krishna Kant Sharma and accused Lallan Pathak, they pleaded not guilty thereto. As against accused Mukesh Pathak @ Chutul Pathak, when charges under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed, he, too, pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 9 (nine) witnesses. The accused persons were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, the accused persons denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. Having, however, arrived at the finding that accused-appellant, namely, Mukesh Pathak @ Chutul Pathak, had been proved guilty of the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, and accused-appellants, namely, Krishna Kant Sharma and Lallan Pathak, had been proved guilty of the offences, under Sections 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, learned trial Court convicted them accordingly. Following their conviction, sentences have been passed against the convicted persons as mentioned above. 7. Aggrieved by their conviction and the sentences passed against them, all the accused, as convicted persons, have preferred appeals. 8. All these three appeals having arisen out of the impugned judgment of conviction, dated 25.09.2007, and the impugned order of sentence, dated 27.09.2007, these appeals have been heard together and are being disposed of by this common judgment and order. 9. We have heard Ms. Anita Kumari Singh, Mr. Kalyan Shankar and Mr. Bhavesh Kumar, learned Counsel appearing on behalf of the appellants, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor for the State. 10. While considering the present appeal, what needs to be noted is that the informant in this case, namely Amit Kumar Pathak (PW 9) is none other than the son of the deceased. Kalyan Shankar and Mr. Bhavesh Kumar, learned Counsel appearing on behalf of the appellants, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor for the State. 10. While considering the present appeal, what needs to be noted is that the informant in this case, namely Amit Kumar Pathak (PW 9) is none other than the son of the deceased. This witness has, however, turned hostile and has not supported the prosecution’s case inasmuch as his evidence is that on the day of the occurrence, while he was at home and 2-4 masons were engaged in the work at their house, his father went to Mehsi Bazaar to bring grill and, at that very point of time, he heard the sound of firing of 2-3 rounds and, on hearing the found of firing, he, along with others, went near the field of Kapildeo Shukla, situated by the side of the road, and saw his father lying on the ground, in injured condition, on being shot. 11. It is the clear and specific evidence of PW 9 that he did not see any other person except the witnesses there and he took his father to hospital. 12. What is extremely important to note, in the evidence of the informant (PW 9), is that according to him, his father did not tell anything to them and he died, while on way to the hospital. It is also in the evidence of PW 9 that police arrived at the hospital and he (PW 9) gave his statement to the police. 13. The prosecution, having declared PW 9 hostile, cross-examined him. In his cross-examination, PW 9 has deposed that he fell unconscious on seeing his father in injured condition, he cannot say anything about the contents of the First Information Report. 14. What is, however, of utmost importance to note, in the evidence of the informant (PW 9), is that according to him, his mother (PW 4) and Panmati (PW 7) had reached the place of occurrence after he (PW 9) had already reached there meaning thereby that if he (PW 9) had not seen the assailants, the question of his mother having witnessed the occurrence or seeing any assailants shooting at her husband did not arise at all. 15. 15. In his further cross-examination, PW 9 has denied to have made any statement to the police to the effect that Mukesh Pathak @ Chutul Pathak was armed with a small revolver and Krishna Kant Sharma was riding a motorcycle of blue colour, he (PW 9) raised alarm, but Mukesh Pathak @ Chutul Pathak fired at his father and threatened to kill if anybody move forward and, thereafter, Mukesh Pathak @ Chutul Pathak boarded on the said motorcycle and fled away and his father told him in injured condition that Mukesh Pathak @ Chutul Pathak had shot him. 16. What is, now, of immense importance to note is that the Investigating Officer of this case has not been examined at the trial. What cannot, however, be ignored is that even if the Investigating Officer had been examined and had proved that the statement, which was attributed to the informant (PW 9) had been made by PW 9 to the police during investigation, the fact remains that the previous statement of PW 9 could not have been treated as substantive evidence. So far as the substantive evidence of PW 9 is concerned, the same does not implicate any of the accused-appellants. 17. Coupled with the above, in the occurrence, as allegedly described by the informant (PW 9), in his statement before the police, he (PW 9) had, admittedly, not implicated accused-appellant Lallan Pathak, though Lallan Pathak’s name appears in the First Information Report. This is, however, an aspect, which we would revert to a little later. Suffice it, at this stage, to point out that the evidence of PW 9 rules out the possibility of his mother (PW 4) having witnessed the occurrence or any part thereof and/or having seen the assailants at or near the place of occurrence. 18. Moreover, the informant’s evidence and also his previous statement completely exclude involvement of accused-appellant Lallan Pathak. Further-more, the substantive evidence of PW 9 is that his father had not said anything after he was found lying injured meaning thereby that his father had not made any statement as regards the cause of his death or as to who killed him. In short, in the light of the evidence of PW 9, Prem Nath Pathak had not made any dying declaration. 19. In short, in the light of the evidence of PW 9, Prem Nath Pathak had not made any dying declaration. 19. Bearing the above aspects of the case in mind, let us, now, come to the evidence of PW 7 (Panmati Devi). This witness has deposed, in her examination-in-chief, that on the day of the occurrence, at 2:00 – 2:30 PM, she was on her way to her house from the station and when she reached near her house, she heard that Prem Nath Pathak had been murdered, whereupon she went to the place of occurrence and saw that Prem Nath Pathak had been shot on his navel and also notice some persons, namely, Krishna Kant Sharma and Lallan Pathak standing there with Mukesh Pathak @ Chutul Pathak, who was armed with a country-made pistol, and he (i.e. Mukesh Pathak @ Chutul Pathak) fled away on a motorcycle, which was driven by Krishna Kant Sharma. 20. In her cross-examination, PW 7 has admitted that she had not stated before the police that when she had gone to the place of occurrence, she had seen Prem Nath Pathak with his injury on his navel and that she had seen Mukesh Pathak @ Chutul Pathak, Krishna Kant Sharma and Lallan Pathak standing there and/or that Mukesh Pathak @ Chutul Pathak had fled away, on motorcycle, with a country-made pistol in his hand and the motorcycle had been driven by Krishna Kant Sharma. 21. Notwithstanding what she had deposed in her examination-in-chief, PW 7 has conceded, in her cross-examination, that she had not heard the sound of firing and that she had heard from the persons, who were rushing towards the place of occurrence that Prem Nath Pathak had been murdered, but those persons were not telling the names of the persons, who had killed Prem Nath Pathak. It is the further evidence of PW 7 that when she reached the place of occurrence, hundreds of people have already gathered there and there was, in fact, stampede on the road and while some people were running away by bicycle, others were running away by motorcycles. 22. It is the further evidence of PW 7 that when she reached the place of occurrence, hundreds of people have already gathered there and there was, in fact, stampede on the road and while some people were running away by bicycle, others were running away by motorcycles. 22. What is of immense importance to note, in the evidence of PW 7, is that notwithstanding the fact that in her examination-in-chief, she had named Mukesh Pathak @ Chutul Pathak as a person, who had been seen by her with country-made pistol and who had been run away on a motorcycle with Krishna Kant Sharma, the fact remains that even in her examination-in-chief, she had not named accused Lallan Pathak. This apart, even in her examination-in-chief, PW 7 has clearly deposed that she went to the place of occurrence on hearing that Prem Nath Pathak had been murdered. This shows that PW 7 went to the place of occurrence after Prem Nath Pathak had already been shot and, hence, question of her seeing the assailants standing at the place of occurrence, when hundreds of people had already gathered there, cannot be easily believed, more-so when she does not name Lallan Pathak as one of the persons, who was with accused Mukesh Pathak @ Chutul Pathak and accused Krishna Kant Sharma. 23. Moreover, in her cross-examination, PW 7 concedes that she cannot name the murderer and when she reached the place of occurrence, she saw the members of the family of the said deceased, like the son, daughter, uncle and wife of the said deceased, present there and that their agnates, too, were present there and, amongst the agnates so present, accused Lallan Pathak, accused Mukesh Pathak @ Chutul Pathak and a friend of the agnates, namely, Krishna Kant Sharma, were also present there. 24. More importantly, this witness (PW 7) has deposed that the family members of the said deceased, his agnates, namely, accused Lallan Pathak and accused Mukesh Pathak @ Chutul Pathak were the ones, who had put Prem Nath Pathak on a tractor and took him to hospital. 25. 24. More importantly, this witness (PW 7) has deposed that the family members of the said deceased, his agnates, namely, accused Lallan Pathak and accused Mukesh Pathak @ Chutul Pathak were the ones, who had put Prem Nath Pathak on a tractor and took him to hospital. 25. Thus, the substantive evidence of PW 7 excludes the involvement of the three accused as assailants; rather, her evidence is that accused Lallan Pathak and accused Mukesh Pathak @ Chutul Pathak had put the said deceased, on a tractor and it was, then, that the said deceased was taken to the hospital. 26. Situated thus, it is clear that the earlier assertion of PW 7, in her examination-in-chief, that on hearing that Prem Nath Pathak had been murdered, she went to the place of occurrence and she saw Prem Nath Pathak with injury on his navel and that accused Mukesh Pathak @ Chutul Pathak was standing near the place of occurrence with a country-made pistol in his hand and fled away on the motorcycle, driven by accused Krishna Kant Sharma, were wholly untrue, when PW 7 had herself admitted, in her cross-examination that accused Mukesh Pathak @ Chutul Pathak, accused Lallan Pathak and accused Krishna Kant Sharma were present at the place of occurrence and so were present, amongst others, the son and wife of Prem Nath Pathak and that even Lallan Pathak and Mukesh Pathak @ Chutul Pathak had helping in putting the said deceased on a tractor for being shifted to the hospital. 27. What emerges from the above discussion of the evidence on record is that PW 7 has not given any incriminating evidence against the appellants; rather, her evidence, while acknowledging the presence of all the three accused persons at the place of occurrence, excludes their involvement as assailants and also shows that Lallan Pathak and Mukesh Pathak @ Chutul Pathak had helped in putting injured Prem Nath Pathak on a tractor to be taken to hospital. 28. In the backdrop of the above evidence on record, let us, now, come to the evidence of PW 4 (widow of the said deceased). 28. In the backdrop of the above evidence on record, let us, now, come to the evidence of PW 4 (widow of the said deceased). Her evidence is that on the day of the occurrence, her husband had gone to Mehsi Bazaar at about 02:30 PM for purchasing grill and at about 4:00 PM, she was on the roof of her house, where labourers were working, and her son, Amit Kumar Pathak (PW 9), was also at home, she heard the sound of firing coming from slightly east side of her house and she went to the site of firing and her son accompanied her. 29. What is important to note, while considering the evidence of PW 4, is that she claimed that she saw accused Mukesh Pathak @ Chutul Pathak shooting her husband and that he, again, shot her husband on his abdomen and though she and her son chased them, they fled away and that accused Lallan Pathak said that he would fire one more shot and while Lallan Pathak fled away to his house, the remaining two, namely, accused Mukesh Pathak @ Chutul Pathak and accused Krishna Kant Sharma fled away on a motorcycle and her husband told her that Chuturwa had shot him and, having made this statement, he fell unconscious and though they took her husband to the doctor, he was found dead. 30. What is, now, of utmost relevance is that in her cross-examination, PW 4 has admitted that when she heard the sound of firing, she was on the roof of her house and the place of occurrence was visible from the roof. It is in her evidence that she was standing in the middle portion of the roof, when the first shot was fired. What is of great significance to note, while considering the evidence of PW 4, is that she admits, in her cross-examination, that she went to the place of occurrence after getting down the cemented stairs from the roof and she heard the sound of second firing, while getting down the stairs. In fact, she has deposed that she had heard the firing of three shots, but the third shot was fired in her presence. 31. In fact, she has deposed that she had heard the firing of three shots, but the third shot was fired in her presence. 31. When one minutely examines the evidence of PW 4 for the purpose of determining as to how far her evidence could be relied upon, it becomes abundantly clear that she admits that two shots had already been fired at and two injuries had been sustained by her husband before the third shot was fired in her presence. Logically extended, it would mean that her evidence, that she had seen the occurrence of firing from the roof, is utterly false inasmuch as she has, in her further cross-examination, admit that two shots had already been fired before she saw the third and final shot being fired at her husband. 32. Situated thus, it is clear that the evidence of PW 4 cannot be implicitly relied upon. This apart, her evidence is belied by the evidence of her son (PW 9) and also by the evidence of PW 7. 33. Coupled with the above, PW 7 has asserted that her husband was not unconscious at the time of sustaining second bullet and he died sometime thereafter. 34. The above impression that PW 4 cannot implicitly relied upon gets strengthened, when we notice that though she claims that the occurrence had taken place, because of land dispute; yet she had claimed in her examination-in-chief, that her husband’s relation with Lallan Pathak was good until before the occurrence. She, again, withdraws from her evidence at later stage of her cross-examination and claims that a land dispute had been going on about a year before the occurrence took place. 35. So far as PW 1 is concerned, he is merely a witness to the inquest report, which has been proved as Exhibit-1. 36. As far as PW 3 is concerned, he has merely deposed that the First Information Report was drawn by the then Officer-in-Charge, Sudarshan Rai, which has been proved as Exhibit-2. 37. As far as PW 2, PW 5 and PW 6 are concerned, they have not supported the case of the prosecution inasmuch as they have denied to have witnessed the occurrence. 38. What emerges from the above discussion is that the prosecution’s case comes to rest on the sole testimony of PW 4, widow of the said deceased. 37. As far as PW 2, PW 5 and PW 6 are concerned, they have not supported the case of the prosecution inasmuch as they have denied to have witnessed the occurrence. 38. What emerges from the above discussion is that the prosecution’s case comes to rest on the sole testimony of PW 4, widow of the said deceased. Apart from the fact that her evidence is self-contradictory, which we have already noticed above, what is of paramount importance to note is that her evidence is neither supported by her son (PW 9), who is informant of this case, nor by any of the independent witnesses including PW 7 inasmuch as even the evidence of PW 7 shows, as already discussed above, that none of the present appellants was an assailant. 39. Section 294 of the Code of Criminal Procedure dispenses with the proof of admitted document. In the case of Kehar Singh and Others Vs. State (Delhi Administration), [ (1988) 3 SCC 609 ], the Supreme Court has clearly held that when the cause of death is not in dispute, the post mortem examination, in the facts of a given case, loses all its significance and that post mortem report becomes important only in the cases, where the cause of death is to be established or is a matter of controversy. The relevant observations appearing, in this regard, at paragraph 3, in Kehar Singh (supra), read as under:— “It is apparent that in the facts of the case as the evidenced stands the question of post-mortem or whether a fuller post-mortem was necessary or not loses all its significance. There is no dispute that she died as a result of the gunshot injuries which was inflicted by Beant Singh and Satwani Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of the death, the post-mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy.” 40. By taking resort to the provisions of Section 294 of the Code of Criminal Procedure, the learned trial Court has taken, on record, the report of the post mortem examination on the basis of admission by defence. The post mortem report (Exhibit-3) is, thus, undisputed. 41. By taking resort to the provisions of Section 294 of the Code of Criminal Procedure, the learned trial Court has taken, on record, the report of the post mortem examination on the basis of admission by defence. The post mortem report (Exhibit-3) is, thus, undisputed. 41. Moreover, the fact that Prem Nath Pathak had been shot to death by use of a fire-arm has not been disputed and, hence, there was no impediment in treating the post mortem report, during the trial of the present case, as an admitted document. The post mortem report shows that the said deceased had sustained the following gun shot injury and that shock and hemorrhage, which resulted from the injuries, so sustained, became the cause of death, the injuries being as follows:— “1. In the abdomen (right side of umbilicus) small inverted margin. No burn or staining of the skin. 2. Post wall of left iliac region (larger inverted margin) 3. Small wound at the right parietal region (skull bone not perforated and fractured). No track of pellet found. No blood in the intracranial cavity. Brain and meninges intact. No pellet probably reflected back on the skull bone. 4. Abdominal cavity full of dark blood. Mesentery perforated and lacerated at many places. No visceral injury. 5. Thoracic cavity. No thoracic viscera or major blood vessels injured 6. No bony injury.” 42. The findings of the doctor and his opinion, with regard to the cause of death, have not been in dispute at the trial. We, too, do not notice anything inherently improbable or incorrect in the findings of the doctor or with his opinion, with regard to the cause of death given by him. Situated thus, we have no hesitation in holding that Prem Nath Pathak died on being shot by bullets. 43. In the circumstances mentioned above, we are required to determine if the accused-appellants were the ones, who had put to death the said deceased. 44. It is true that no particular number of witnesses is required to prove or disapprove a fact and even if the testimony of one witness is wholly believed by the Court, conviction can be based on the sole testimony of such a witness. 45. 44. It is true that no particular number of witnesses is required to prove or disapprove a fact and even if the testimony of one witness is wholly believed by the Court, conviction can be based on the sole testimony of such a witness. 45. In the case at hand, as already indicated above, the conviction of the accused-appellants is based on the sole testimony of PW 4; whereas the evidence of PW 4, which we have already pointed out above, had not been supported even by her son (PW 9), who is the informant of this case, and also by independent witnesses, such as, PW 7. This apart, even her own evidence is inconsistent, incoherent and contradictory. 46. In the circumstances indicated above, PW 4 cannot be treated to be a witness, who can be regarded as wholly reliable. Her testimony, therefore, could not have been made basis of conviction of the accused-appellants. At best, PW 4 would have fallen in the category of those witnesses who are neither wholly reliable nor wholly unreliable. 47. It is trite that the witnesses, ordinarily, fall into three distinct categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If the witness is wholly reliable, his evidence can be implicitly relied upon and such a witness’s testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable, no reliance can at all be placed on his evidence and his evidence has to be rejected outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable, his evidence cannot be accepted as true unless his evidence is found to have been corroborated by some credible independent evidence, direct or circumstantial. 48. The evidence of the eye-witnesses, which the prosecution has adduced in the present case, cannot be safely relied upon unless the same is found to have been corroborated by some credible independent evidence, direct or circumstantial. 49. It is also an undisputed position of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. 49. It is also an undisputed position of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. Thus, when a witness is neither wholly reliable nor wholly unreliable, his evidence cannot be taken to have been corroborated by a witness of the same brand, namely, a witness, who is neither wholly reliable nor wholly unreliable, for, evidence is not to be counted, but weighed. It is not the number of the witnesses, which determines the outcome of a trial; rather, it is the inherent falsity or truth of the evidence given by the witness, which decides the outcome of trial. If each one of a large number of witnesses is found to be wholly unreliable, their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other. 50. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [ AIR 1976 SC 989 ], wherein the Supreme Court has observed as follows :— “It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable.” (Emphasis is added) 51. Situated thus, it is clear that merely because some persons, claiming themselves to be eye-witnesses, have given evidence describing the occurrence, their evidence cannot be made basis for holding them truthful witnesses, when their evidence is inconsistent, contradictory and belied by each other’s evidence, particularly when their evidence is found to have not been corroborated by credible independent evidence, direct or circumstantial. 52. 52. Because of the nature of evidence, which is available on record, the least, which ought to have been done by the learned trial Court, was to accord benefit of reasonable doubt to the accused persons inasmuch as we are clearly of the view that in the light of the evidence on record, which we have discussed above, it was too hazardous to convict any of the accused-appellants, particularly, when we find that the evidence, which the prosecution has adduced, is an ad-mixture of half-truth and untruth and it is not only difficult, but wholly impossible to disengage the truth from the falsehood. The benefit of such a situation ought to have been given to the accused-appellants. 53. In the backdrop of what have been discussed and pointed out above, we are firmly of the view that the prosecution had failed, in the present case, to bring home the charges against the accused-appellants beyond reasonable doubt and that the accused-appellants were entitled to be accorded benefit of doubt. 54. Because of what have been discussed and pointed out, these appeals need to be allowed. 55. In the result and for the foregoing reasons, we allow these appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences which they stand convicted of, and they are accordingly acquitted of the same under benefit of doubt. 56. Let the accused-appellant, namely, Mukesh Pathak @ Chutul Pathak, be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 57. So far as accused appellants, Lallan Pathak and Krishna Kant Sharma, are concerned, they are already on bail. The bail bonds of the accused appellants, Lallan Pathak and Krishna Kant Sharma, are hereby cancelled and their sureties shall stand discharged. 58. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Courts Record. S. P. SINGH, J.:–I agree. ?