JUDGMENT Mukhtar Ahmad, J. 1. The appellants Ram Sewak and Panni Lal have preferred this criminal appeal against the judgment and order dated 30.04.1983 passed by VIII Additional Sessions Judge, Kanpur in S.T. No. 165 of 1980 under Section 302/34/201 IPC, whereby both the appellants were convicted and each of them was sentenced to undergo life imprisonment under Section 302/34 I.P.C. Appellant Ramsewak was further convicted under section 201 IPC too and sentenced to undergo for 2 years rigorous imprisonment. Appellant Ramsewak has died during the pendency of this appeal and appeal has been abated in his respect vide order dated 04-12-2007, as such this appeal survives only on behalf of appellant Panni Lal. 2. The prosecution story hinges on the facts that on 09.2.1980, the first informant- Raja Ram (PW-1), gave a written information (Ex Ka-1) at the police station, Kakwan, district Kanpur by saying that Sudama was his bhaujai (brother’s wife) in relation, whose husband had expired about 3 years ago and thereafter her agriculture was being looked after by him. Some litigation in respect of the land was there between Sudama and her jeth Ram Sewak accused in which she succeeded and her name was mutated in revenue records. It was further stated that for about last 6 months Sudama used to come in his house for sleeping in the night and in remaining period she used to live in her own house. Usually she used to come for sleeping at about 8p.m. On the day of incident i.e. 09-2-1980 when she didn’t come to his house up to 8 p.m. then he and his brother Nathu Ram went to see her towards her house and saw in the light of torch that Sudama was lying on the door of the room and Ram Sewak was slaughtering her neck by gadasa, Panni lal was catching hold her hairs and head and blood was oozing. Seeing all this applicant and his brother came out of the house and raised the alarm, thereafter Panni Lal and Ram Sewak came out of the house and ran away towards Kakwan Canal. Accused Ram Sewak was having head of the deceased. It was also asserted that Ramsewak was trying to get his name mutated in respect of the land of Sudama but could not succeeded and due to this grudge he committed murder of Sudama. On the basis of written tahrir (Ex. Accused Ram Sewak was having head of the deceased. It was also asserted that Ramsewak was trying to get his name mutated in respect of the land of Sudama but could not succeeded and due to this grudge he committed murder of Sudama. On the basis of written tahrir (Ex. k-1), an first information report (Ex-Ka-5) was registered against the accused persons under section 302 IPC. The investigation was taken over by S.O. Ram Swaroop Singh (PW-5), who recorded the statement of the informant, visited the spot, prepared site plan. He also arrested accused Ram Sewak in the same night, recovered blood stained langot and underwear from his body, also recovered head of the deceased and blood stained Gadasa on the pointing out of accused Ram Sewak and papered fards. From the place of occurrence blood stained and plain earth, blood stained clothes and wearing ornaments of the deceased were also recovered and recovery memo were prepared. Inquest of the dead body (Ex-Ka-8) was also conducted. Thereafter, the dead body along with head was sealed and sent for post mortem examination through Constables Ram Chander Tiwari and Phool Singh (Pw-6). Specimen seal, memo supurdagi Lash, photo Lash, letter to CMO were also prepared and handed over to the aforesaid Constables. Autopsy of the deceased- Sudama was conducted on 11.2.1980 by Dr. C.T Mirpuri (PW-3). He observed that deceased was of about 25 years of age having average built and had died about 2 days before the post-mortem, head was separate from the neck, rigor mortis was passed away from the upper portion of the body however was present in lower part. He found following ante mortem injuries on the dead body of the deceased : “1- Incised wound 11 cm x 4 cm cavity deep on the left side face extending from frontal region to temple of left ear 3 cm away left eyebrow. 2- Lacerated wound 7 cm x 2-1/2 cm x bone deep on left side head 3-1/2 cm away from left ear extending from occipital region left side. 3- Lacerated wound 1-1/2 cm x 1/2 x bone deep on back of head on occipital region. 4. Incised wound 5 cm x 1-1/2 cm x bone deep with underlying fracture of mandible left side face below ear. 3- Lacerated wound 1-1/2 cm x 1/2 x bone deep on back of head on occipital region. 4. Incised wound 5 cm x 1-1/2 cm x bone deep with underlying fracture of mandible left side face below ear. 5- Lacerated wound separating head from the neck through x through below chin either side extending across mandible mastoid and occipital the back of either side cutting underlying organs including trachea esophagus thyroid muscle and big vessels including ear, face and atlas vertebra. 6- Incised wound 9 cm x 5 cm x bone deep cutting acronium process of scapula on right side on right shoulder. 7- Incised wound 7 cm x 2-1/2 cm x muscle deep on right side back and right scapula.” 3. On the internal examination, fracture below the injury No. 1 was noted. Brain membrane was lacerated, Lungs were also found lacerated. In the stomach about 6 ounce semi digested food was found. Small and large intestines were found empty. It was opined by the doctor that the death occurred due to shock and hemorrhage as a result of ante mortem injuries. 4. After concluding the investigation the I.O. submitted charge sheet under section 302 IPC against both the accused persons. The Chief Judicial Magistrate Kanpur after providing necessary copies to the accused persons committed the case to the Sessions Judge, ultimately transferred to the court of VIII Additional Session Judge, where charges against both the accused persons under section 302/34 and 201/34 IPC were framed. The accused persons pleaded not guilty and claimed to be tried. 5. In order to substantiate the charges against the accused persons, the prosecution examined 6 witnesses. PW-1 Raja Ram is the first informant and distant relative of the deceased. He is produced as eyewitness as well as to prove written tehrir (Ex Ka-1) and first information report (Ex-Ka-5). PW-2 Natthu Ram was also produced as eye witness of the incident but he expired before his cross examination as such his oral testimony could not be completed and due to this reason his evidence was not taken into consideration by the Trial Judge. PW3-Dr. C.T. Mirpuri who conducted autopsy on the dead body of the deceased and he has proved the post mortem report (Ex-ka-2). PW3-Dr. C.T. Mirpuri who conducted autopsy on the dead body of the deceased and he has proved the post mortem report (Ex-ka-2). PW-4 Sipahi lal has been examined as witness of recovery of the langot and underwear of accused Ram Sewak, head of the deceased and blood stained gadasa and wearing ornaments. PW-5, S.S.I. Ram Swaroop Singh is the Investigating Officer who submitted the charge sheet against the accused persons. PW-6 Constable Phool Singh is the witness who had taken the dead body for post-mortem. 6. After concluding the prosecution evidence, statements of the accused persons under section 313 Cr. P.C. were recorded and all the incriminating circumstances were put to them, which they denied and claimed their false implication. 7. Defense chosen not to lead any evidence. 8. Learned Sessions Judge after hearing both the parties and appreciating the evidence on record, found the prosecution case proved beyond the reasonable doubt, convicted the appellants and awarded sentence as stated above. 9. Aggrieved by the impugned judgment and order of conviction and sentence, the instant criminal appeal has been preferred. 10. We have heard Sri A.B.L. Gaur Senior Advocate assisted by Shri Ashutosh Vaish, learned Counsel for the surviving appellant Panni Lal, Mr. L.D. Rajbhar learned AGA and have gone through the record and impugned judgment and order too. 11. Learned Senior counsel appearing on behalf of the appellant has assailed the impugned judgment on various grounds. He has submitted that there is no evidence worthy of credence to establish the prosecution case and impugned judgment lies more on surmises than on facts proved beyond reasonable doubt. He further submits that Pw-1 Raja Ram is examined by the prosecution as eye witness but he is relative of the deceased as such he is highly interested witness. Further, his presence on spot at the time of occurrence is highly doubtful and his testimony has severe contradictions and discrepancies, so his testimony do not inspire confidence. Further, his evidence is not corroborated with other evidence and as such, entire prosecution story becomes doubtful. 12. Per contra, learned A.G.A. has opposed these arguments and supported the judgment and order impugned. Further, his evidence is not corroborated with other evidence and as such, entire prosecution story becomes doubtful. 12. Per contra, learned A.G.A. has opposed these arguments and supported the judgment and order impugned. It has also been argued that mere relationship cannot be the ground of discarding the evidence of a witness further minor contradictions in the testimony of the witnesses are bound to occur which also shows that the witnesses are not tutored and they have come to the Court for disclosing the fact in their own way. Minor discrepancies not touching the core of case cannot be the ground for rejection of evidence in entirety. It is further submitted that the testimony of the witnesses of the fact is supportive to the medical evidence. 13. In this matter in written tehrir PW1 says that Sudama was his bhaujai (Brother’s wife) and in oral testimony deposed that she was his cousin (Maternal uncle’s daughter) in relation, but we are of the view that only on the basis of relationship, the witnesses cannot be termed as interested witnesses and their testimony cannot be discarded only on account of relationship. However, scrutiny of his testimony would require great care and caution. 14. At this juncture it is also a point of discussion that prosecution case is based upon the solitary evidence of PW-1 as other witness of the incident Nathu Ram PW2 expired before his cross examination so his incomplete testimony cannot be taken into consideration, which has also been held by learned trial Court. Now it is to be considered as to whether sole testimony of PW1 is reliable and may be base of conviction? In respect of testimony of sole witness the Hon’ble Supreme Court has observed in Sunil Kumar v. State Govt. of NCT of Delhi 2003 (11) SCC 367 the Apex Court has held that: “....... as a general rule to 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 (in short the ‘Evidence Act’). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). But, if there are doubts about the testimony the courts will insist for 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 time honoured 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.” 15. In State of Rajasthan v. Om Prakash 2007 (12) SCC 381 the Hon’ble Supreme Court has observed that testimony of a solitary witness can be basis of conviction even is related to the deceased. 16. In Jarnail Singh v. State of Punjab 2009 (1) SC 244 the Hon’ble Apex Court held that “it is no doubt true that conviction could be based on the sole testimony of a solitary witness but in order to the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong, reliable and free from any blemish.” 17. In view of the law referred above it comes out that it is now well-settled principle of law that conviction can be based on the basis of the testimony of a sole eye witness but it must be reliable, credible and trustworthy. 18. Now we have to consider the evidence of PW-1, by whom the manner of occurrence was deposed at the trial. It has been stated by this witness that Smt. Sudama was his cousin, (daughter of his maternal uncle) in relation, she was married to Ram Swaroop, brother of accused Ram Sevak. He also deposed that Ram Sevak is son of his uncle in relation and Ram Sevak and Panni Lal were friends. He further states that Ram Swaroop expired 5-6 years before the incident and some litigation ensued between Ram Swaroop and Sudama and he used to do pairvi of the case on behalf of the Smt. Sudama. Ultimately Sudama succeeded and her name was mutated in the revenue record. It was the main reason that Ram Sevak was having grudge against her. Ultimately Sudama succeeded and her name was mutated in the revenue record. It was the main reason that Ram Sevak was having grudge against her. He further deposed that for 2-3 months Sudama used to come to his house for sleeping in the night which is about 200 steps from the house of Sudama. She was issueless and usually used to come about 6-7 p.m. On the day of incident when Sudama did not come up to 8.00 pm then he and his brother Nathu Ram PW-2 went towards the house of Sudama. He was having torch, they reached to her house, flashed the torch on the door and saw that Sudama was lying on the door of the room, Panni Lal was catching hold the hairs/head and appellant Ram Sevak was cutting her nearby Gadasa, seeing this he and his brother Nathu Ram came out of the house and shouted then accused persons ran away towards Kakwan canal, he and PW-2 Nathu Ram also tried to chase them for 8-10 steps but they succeeded in escaping there from. Ram Sevak was having head of Sudama and blood was oozing. It is also stated by him that he wrote a written report Exhibit-KA-1 and went it to the police station at about 8.30 and FIR was registered against both the accused persons. He further deposed that gadasa (material Ex. -1) was also lying on the spot. In cross examination it has been stated by this witness that Sudama use to eat the food in her own house and she used to come only for sleeping in the night. It was also stated that Sudama has executed a sale deed in favour of Rameshwar and this witness was one of the attesting witness of the sale deed. It was further deposed by this witness that head of the Sudama was recovered from inside Patel (long grass) which was lying about 15-16 steps away from his house. In para 20 of his oral testimony he has stated that gadasa was lying near the head of the deceased and he had not seen the gadasa near the dead body before going to the police station. It was also stated that Investigating Officer had inspected the torch but he is not remembering as to whether any Fard was prepared or not or whether it was kept by Investigating Officer or was returned to him. It was also stated that Investigating Officer had inspected the torch but he is not remembering as to whether any Fard was prepared or not or whether it was kept by Investigating Officer or was returned to him. In para 22 he deposed that Sudama was not crying at the time of incident and he and his brother did not try to save Sudama. accused person did not say anything to them. In para 25 he further deposed that after lodging the FIR Investigating Officer Ram Swaroop Singh S.O had reached the spot with 2-3 constables at about 9.00 p.m. He remained with Investigating Officer up to the school where we have seen the sign of blood thereafter he came back and Investigation Officer went therefrom. He reached his house at about 9.30 p.m. where a crowd was found and it was informed that head of the Sudama was recovered. He further states that before reaching the house, the head of the deceased was recovered and he don’t know that with whose help head was recovered. 19. Learned counsel for the appellant has argued that there is grave contradictions in the evidence of this witness. Following points emerges for the consideration in this regard: “A. That the incident is said to have taken place in the night and only source of light is shown the torch of PW1, who has deposed in his testimony in para 20, that it was a dark night and except his torch, there was no other source of light but entire prosecution evidence is silent in respect of torch, neither it was recovered by Investigating Officer nor it was given or shown by this witness to him and no fard was prepared and prosecution version of watching the incident by the eye witnesses becomes highly doubtful. B. That as per PW1 (para 25) he, after lodging the FIR had reached to his house at about 9.30 p.m. and before his arrival to the house, the head of deceased Sudama was recovered and he did not know that who helped the recovery but witness of recovery Sipahi Lal PW 4 says in this regard that in night at about 10/10.30 p.m. he was returning from his fields and when reached near the hospital, daroga ji flashed the torch on him and asked his name. At that time accused Ram Sewak was in his custody and head of Sudama was lying in patail. A surprising point has also come out that at the time of inquest, head of deceased was there and was sealed along with remaining part of the body but perusal of inquest shows that it was started at 9.30 p.m. Fard of head Ex Ka-3 discloses that head was recovered on the pointing out of accused Ram Sewak at 10.30 p.m. In view of this all it comes out that time of recovery of head and on pointing out of accused Ram Sewak both becomes doubtful. C. It is the prosecution version that blood stained gadasa was recovered at 0.45 a.m. on the instance of accused Ram Sewak near the dead body of the deceased and at that time he also confessed the guilt as has been stated in fard Ex Ka-4 but PW1 in his oral testimony has stated in para No. 20 that gadasa was lying near the head of the deceased and he did not see the gadasa near the dead body of the deceased. In this regard PW-4 Sipahi Lal, witness of recovery has stated that gadasa was recovered in the house of Sudama near her dead body. I.O. Ram Swaroop Singh PW-5 in his deposition has also stated that gadasa was recovered near dead body. As such version of PW-1 that gadasa was recovered near the head becomes false. Further in inquest report it is mentioned that near the body, a blood stained gadasa was lying on the spot. Time of starting the inquest is 9.30 p.m. so again recovery of the same gadasa at 0.45 p.m. becomes not only doubtful but false. D. It has also been contended by learned counsel for the appellant that as per prosecution deceased used to come to the house of PW-1 for sleeping at about 6-7 p.m. and she used to take meal in her own house but presence of semi digested food in her stomach reflects that she ought to have taken the food at least 4-5 hours before the incident. In this respect we are of the opinion that when she had taken the food, the same may not be within the knowledge of PW-1 and no inference can be drawn in this regard. In this respect we are of the opinion that when she had taken the food, the same may not be within the knowledge of PW-1 and no inference can be drawn in this regard. E. Now the recovery of blood stained underwear and banyan of accused appellant Panni Lal and his confession of the guilt is also to be considered. The recovery memo of the same is Ex. Ka-13. It is stated there in that Panni Lal had also admitted the guilt and underwear and banyan which he was wearing were having blood spots and were taken in custody by the police but no witness of the fard has been examined by the prosecution. As far as Investigating Officer is concerned he in his oral testimony has stated that on 10.2.1980 accused Panni Lal was arrested by him and his blood stained underwear and banyan Exhibit-14, 15 were taken into possession and fard Ex. ka13 was prepared but nothing has been stated by this witness in respect of the confession of the guilt by the appellant. Hence recovery and confession of the present appellant Panni Lal become doubtful. F. One point in respect of the conduct of the PW-1 is also to be considered. This witness in his oral testimony in para 14 has stated that he and PW-2 tried to chase the accused persons up to about 8-10 steps but they succeeded in running towards the canal, while in para No. 21 he says that he never tried to catch the accused persons as he may also be murdered by them. This witness also says that Sudama was not crying nor they tried to save the Sudama due to fear. These version of this witness seems to be unnatural.” 20. Learned senior counsel for the appellant has vehemently argued that main role of committing the murder was assigned to the appellant Ram Sewak and head of the deceased is also alleged to have been taken away by him, further weapon of assault i.e. gadasa as well as head is also said to have been recovered on his pointing out but role assigned to the surviving appellant is of only catching hold the hairs/head of the deceased and no active participation has been attributed to him, further role of catching hold is a very weak type of evidence. 21. 21. In the matter in hand, admittedly main role of committing murder has been assigned to co-accused Ram Sewak and role of catching hold only has been attributed to the surviving appellant and in view of the discussion made herein above, we come to the conclusion that prosecution has failed to establish the source of light, as to where Gadasa was lying and from where it was recovered, the recovery of head was on the pointing out of appellant Ram Sevak? And from which place, and what was the time of recovery? and it would not be safe to rely on the sole testimony of PW-1 Raja Ram. Our independent analysis of the evidence on record, coupled with infirmities which we have noticed above has created an impression to our mind that prosecution has not been able to prove the guilt of the appellant beyond reasonable doubt. Consequently, appellant Pannilal is entitled for benefit of doubt. 22. Accordingly appeal succeeds and is hereby allowed. The conviction and sentence awarded against the appellant Panni Lal vide impugned judgment and order dated 30.04.1983 passed by VIII Additional Sessions Judge, Kanpur in S.T. No. 165 of 1980 under Section 302/34 IPC is hereby set aside and he is acquitted accordingly. His bail bonds are hereby cancelled and sureties are discharged from their liabilities. 23. Let this order be communicated to Court concerned. The record of this case be also sent back to trial Court immediately.