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2019 DIGILAW 390 (ALL)

Wasid Ali v. State Of U. P.

2019-02-14

K.J.THAKER, SURESH KUMAR GUPTA

body2019
JUDGMENT : SURESH KUMAR GUPTA, J. 1. By this criminal appeal under Section 374 (2) Cr.P.C., the accused-appellant challenges the impugned judgment and order dated 22.11.2008 passed by Special Judge, Essential Commodities Act, Farrukhabad in S.T. No. 339/1994 (State Vs. Wazid Ali and others) convicting the appellants-accused, Wasid Ali and Munna under Section 302/34 and awarded sentence of life imprisonment and fine of Rs. 10,000/- each and in default of payment of fine, five years additional simple imprisonment. The appellants were also convicted under Section 201/34 I.P.C. and awarded sentence of 7 years rigorous imprisonment and fine of Rs. 3,000/- and in default punishment of two years. All the sentences shall run concurrently. 2. Learned sessions court acquitted the accused, Shamshul and Nawab. Record shows that no State Appeal against acquittal has been filed by prosecution. 3. The prosecution version unfolded by complainant Akhtar Ali (P.W.1) succinctly is that on fateful day i.e. on 2.4.1994 when he was cloaking tobacco in his field then at 4:00 p.m. his son- -in law-Tahsin was returning to his town Noorpur Gadhai from the township Kampil. When his son-in-law reached near the filed of Ishrar Ali then he saw that accused Wasid Ali, Shamshul, Nawab and Munna, who was already hiding in tobacco field armed with sickle, Shamshul and Nawab was also armed with gun suddenly assaulted Tahsin with the intention to kill him and consequently Tahsin's head was severed from body through sickle and Tahsin died immediately. Afterward the dead body of his son-in-law was burnt with 'patai' and his head was thrown into the north side of the field. When he heard the sound of the noise he shouted and ran to save him but accused started firing with intention to kill him so he could not go near the body due to fear. After listening loud noise people started coming from the village then all the accused fired and fled away toward 'katri'. Half burnt body of Tahsin was lying on spot. 4. On the basis of written report (Tahriri) of Akhtar Ali Ex. Ka-1. an F.I.R. has been lodged upon all the accused persons under Sections 302/307 I.P.C. at 17:10 on the same day in the P.S.- Kampil, Sub District-Kayamganj, District- Farrukhabad. 5. After lodging of F.I.R. Investigating Officer reached the spot and started investigation and collected blood stain earth and plain earth from the spot. Panchnama was also drawn. Ka-1. an F.I.R. has been lodged upon all the accused persons under Sections 302/307 I.P.C. at 17:10 on the same day in the P.S.- Kampil, Sub District-Kayamganj, District- Farrukhabad. 5. After lodging of F.I.R. Investigating Officer reached the spot and started investigation and collected blood stain earth and plain earth from the spot. Panchnama was also drawn. The Investigating Officer also prepared police papers and prepared the map of place of occurrence and then sent the dead body for post-mortem examination. During Investigation I.O. also recovered two blood stained sickle from spot. 6. All the named accused in the F.I.R. were arrested on 19.4.1994. After completion of the investigation charge-sheet filed under Section 302/307 I.P.C. against accused, Wasid, Munna, Shamshul and Nawab. 7. After committal of the case before sessions court, sessions court framed charge under Section 302/34, 201/34 I.P.C. against all the accused. Accused does not plead guilty and claimed to be tried. 8. To prove the charge against the appellants the prosecution examined about three witnesses : 1 Deposition of Akhtar Ali 19.12.1998 P.W.1 2 Deposition of Dr. B.L. Katiyar 17.3.2001 P.W.2 3 Deposition of Kaushal Kishore Yadav 29.4.2008 P.W.3 9. So as to support and see that the charge framed by Special Judge E.C. Act culminated into conviction of Wasid Ali and Munna, the prosecution even produced and proved the contents of the following documents. 1 F.I.R. 02/04/94 Ex. Ka19 2 Written Report 02/04/94 Ex. Ka1 3 Recovery memo of blood stained on plain earth 02/04/94 Ex.Ka.8 4 Recovery memo of blood stained on sickle 02/04/94 Ex.Ka.9 5 Post Mortem Report 03/04/94 Ex.Ka.2 6 Report of Forensic Science Laboratory - Ex.Ka.13 7 Panchnama - Ex.Ka.3 8 Photo of dead body - Ex.Ka.4 9 Letter of C.M.O. - Ex.Ka.5 10 Police form - Ex.Ka.6 11 Site plan - Ex.Ka.7 12 Charge-sheet - Ex.Ka.10 13 G.D. - Ex.Ka.12 10. On the evidence of prosecution having been concluded, the learned Sessions Judge examined all the accused as per provision of Section 313 Cr.P.C. in which he has pleaded that they are not guilty. 11. We have heard Sri Sukhbir Singh, learned counsel for the appellants and Sri Ajeet Ray, learned counsel for the State of U.P and perused the record. 12. 11. We have heard Sri Sukhbir Singh, learned counsel for the appellants and Sri Ajeet Ray, learned counsel for the State of U.P and perused the record. 12. It is contended by the learned counsel for the appellant that entire case of the prosecution hinges on the statement of P.W.-1 which is not corroborated by medical evidence and other circumstances such as his presence is doubtful and other factors which were completely not taken into consideration by court below and thus impugned order suffers from manifest illegality and mis- appreciation of evidence on record. 13. It is also stated by the learned counsel for the appellant that it is throughout case of the prosecution as alleged in the F.I.R. as well as in the statement of P.W.-1, the only eyewitness examined by prosecution, that all the 4 accused persons were armed with sickle and all of them assaulted victim and severe his head but only appellants were convicted and two other accused Shamshul and Nawab were acquitted on the ground that it is also alleged they were also armed with firearm and there is no firearm injury, although it is specifically stated by P.W.-1 that both theses persons fired towards him and he was so scared that he ran away and did not return back and thus conviction of the appellant is bad in law. 14. It is vehemently stated by the learned counsel for the appellants that medical evidence does not corroborate the ocular version as according to the prosecution case occurrence took place on 2.4.1994 at 4:00 p.m. and postmortem was conducted on next day i.e. within 24 hours but according to postmortem examination and statement of P.W.-2, rigor-mortis has passed off from entire body and thus time of occurrence is not corroborated by medical evidence, which completely rules out the presence of P.W.-1 who claims that he saw the occurrence. 15. It is vehemently argued by the learned counsel for the appellants that in addition to passing rigor mortis through body only two incised wounds were noted by doctor and although dimension and nature of injuries clearly indicates that they are result of heavy cutting weapon and both the injuries are not possible by assault by sickle. It has been further argued that F.I.R. is based on conjectures and surmises and not based on eye version account and thus medical evidence completely demolishes the case of prosecution. It has been further argued that F.I.R. is based on conjectures and surmises and not based on eye version account and thus medical evidence completely demolishes the case of prosecution. 16. It is also stated by the learned counsel for the appellants that manner of assault and subsequent burning of death body completely indicates that it was killing at leisure indicating that assailants who were ever they were had sufficient time to kill the deceased and to burn dead body in order to disfigure it and this also rules out the presence of P.W.-1. It has further been stated that the enmity between parties was not of a such matter that they would cut neck of deceased completely and thus this killing was done by some unknown assailants for some ulterior motive and just on the suspicion and admitted on the basis of enmity, appellants and other co-accused were named. 17. It is vehemently contended by the learned counsel for the appellants that the statement of P.W.-1 suffers from various glaring infirmities and discrepancies and contradictions and his presence near the place of occurrence is doubtful as there is no field of the first informant near the place of occurrence were he is said to be cutting and plucking tobaccoo and thus by no stretch of imagination first informant can see the occurrence. It has been further contended that part of the statement of P.W.-1 the only eyewitness is disbelieved by the court below while acquitting Shamshul and Nawab and court below unnecessarily and illegally believed rest of the statement of P.W.-1 and convicted the appellants completely overlooking other circumstances, which clearly points out that deceased was done to death by unknown assailants at a lonely and deserted place. 18. It has also been argued by the learned counsel for the appellants that the F.I.R. is anti-time as occurrence has taken place on 2.4.1994 at 4:00 p.m. and then he got scribed by other persons and then proceeded to police station on foot which is at a distance of 4 k.m. and lodged F.I.R. at 5:10 p.m. which is highly improbable. It is also stated that scribe of the case has not been produced and no other independent witness was produced in support of prosecution case. It is also stated that scribe of the case has not been produced and no other independent witness was produced in support of prosecution case. It has further been stated that serologist report also does not support prosecution case and sickles found at the place of occurrence are not mentioned in the F.I.R. nor proper recovery was made nor they were produced in the court. 19. It has been further contended that learned court below has not properly appreciated the evidence on record and recorded findings, which are not just, proper and legal. It has also been contended that prosecution has not been able to prove its case beyond reasonable doubt and thus impugned judgment is not tenable in the eyes of law and same is liable to be set aside. The findings recorded by the learned lower court are perverse and are based upon conjectures and surmises and thus conviction and sentence passed on such finding is illegal. Impugned judgment is against the weight of evidence and material on record and there are glaring discrepancies and inconsistencies in the order hence the same is liable to be quashed. 20. Per contra learned A.G.A. contended that this is the case of direct evidence. Prosecution establish motive behind this crime. Appellants have failed to establish his case and there is no material contradiction of the evidence of P.W.-1. Oral evidence of P.W.-1 has been corroborated by medical evidence. Weapon of assault was also recovered from place of occurrence. It has also been contended by the learned A.G.A. that prompt F.I.R. has been lodged against the accused persons. There is not any ground for embellishment of the above accused. Appellant was failed to prove their case and conviction of the accused is liable to be upheld. 21. The testimony of witnesses, medical evidence and other relevant factors considered by the Sessions Court are considered by this Court also in light of the latest decisions of the Apex Court. The evidences are being re-appreciated and reevaluated by us. The evidences of all witnesses have been discussed by the trial court in detail. We have shifted the evidences very closely. The evidences are not reproduced here, but with a view to see that the judgment does not become bulky, the testimonies are not reproduced verbatim but the same have been read over again and again by us. 22. The evidences of all witnesses have been discussed by the trial court in detail. We have shifted the evidences very closely. The evidences are not reproduced here, but with a view to see that the judgment does not become bulky, the testimonies are not reproduced verbatim but the same have been read over again and again by us. 22. In the light of the decision rendered by the Apex Court in R. Shaji Vs. State of Kerala, (2013) AIR SC 651, it would be relevant for us to not only refer to the testimony of witnesses but also to give our finding on the aspect where guilt is proved to the hilt or not. In that decision, the Apex Court held that in the matter of appreciation of evidences of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. 23. Autopsy of the dead body was conducted by P.W.-2, Dr. B.L. Katiyar on 3.4.1994 at 1:15 p.m. As per postmortem -Ex.Ka.-2 two incised wounds have been found : (1) incised wound through in through from middle of neck at the level of C4 amputated part present, Amputated part head face upper part of neck without burns present, On cut surface blood clot present, Food matter coming out from esophagus. (2) incised wound 6 c.m. X 1 c.m.x bone deep right side of face involving Zygomatic region margine clear cut both angle sharp. Post Mortem injury : P.M. burns all over body from middle part of neck upto dorsum of both feet muscle exposed and pale. Signing of hair on all parts of body. As per postmortem report and doctor's opinion death of Tahsin Khan has possibly been taken at 4:00 p.m. on 2.4.1994 due to shock and hemorrhage as a result of ante-mortem injury. 24. Signing of hair on all parts of body. As per postmortem report and doctor's opinion death of Tahsin Khan has possibly been taken at 4:00 p.m. on 2.4.1994 due to shock and hemorrhage as a result of ante-mortem injury. 24. Kaushal Kishore Yadav, Inspector was examined as P.W.-3, who has stated in his deposition that he had already carried out the investigation of this case and Panchnama has been conducted in presence of Panch Jan and recorded the statement of the witnesses P.W.-1 and prepared site plan. Thereafter he prepared recovery memo also. The blood stain earth and blood stain sickle was also recovered from the place of occurrence. All the recovery memo were signed. After proceeding of the Panchnama dead body was sent for medical examination. On 19.4.1994 intimation regarding surrender of accused from the court was issued then statement of the accused was recorded on 28.4.1994 and after completing the investigation the charge-sheet no. 44 was submitted in the court. From the inquest it appears that death of the Tahshin was caused by severing his head and by gun shot injury but there was no trail of blood at the place of occurrence. 25. This Court is mindful of the fact that in trial for the offence of murder, where the witnesses are close relatives of victim, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon them. However, relationship is not a factor to affect the credibility of a witness. A father in law of deceased will normally not rope innocent person and let the real culprit go unpunished this aspect has to be also borne in mind while analysing the evidences of PW1, father in law. It is trite law in criminal jurisprudence that version of an eyewitness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eyewitness is proved to be natural and the statement given by such witness is nothing but, truthful disclosure of actual facts leading to occurrence, then such statement can not be brushed aside. In his cross examination, PW-1 has categorically denied the suggestion that he could not have noticed the incident in question. 26. Learned counsel vehemently argued that no independence and material witness have been produced by the prosecution. In his cross examination, PW-1 has categorically denied the suggestion that he could not have noticed the incident in question. 26. Learned counsel vehemently argued that no independence and material witness have been produced by the prosecution. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses is, whether the prosecution is bound to examine all the listed/cited witnesses. Hon'ble Apex Court, in Abdul Gani & Ors State of Madhya Pradesh, AIR 1954 SC 31 , has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would, take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses. 27. In Sardul Singh Vs. State of Bombay, (1957) AIR SC 747, a similar view has been reiterated, observing that a court cannot, normally compel the prosecution to examine a witness which the prosecution does not choose to examine, and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials. 28. In Masalti v. State of U.P., (1965) AIR SC 202, the Hon'ble Supreme Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. "In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr.P.C.". (See also : Bir Singh & ors v. State of U.P., (1977) 4 SCC 420 29. In Darya Singh & Ors. State of Punjab, (1965) AIR SC 328, Hon'ble Supreme Court reiterated a similar view and held that if the eye-witness(s) is deliberately kept back, the Court may draw inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. 30. In Raghubir Singh Vs. State of U.P., (1971) AIR SC 2156, Hon'ble Supreme Court held as under: "...Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has not shown how the prosecution story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version....." (Emphasis added) 31. In Harpal Singh v. Devinder Singh & Anr., (1997) AIR SC 2914, Hon'ble Supreme Court reiterated a similar view and further observed: "....The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness....." 32. In Mohanlal Shamji Soni v. Union of India & Anr., (1991) AIR SC 1346, Hon'ble Supreme Court held: "10. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. In Mohanlal Shamji Soni v. Union of India & Anr., (1991) AIR SC 1346, Hon'ble Supreme Court held: "10. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be un-favourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.... In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." 33. In Banti @ Guddu v. State of U.P., (2004) AIR SC 261, Hon'ble Supreme Court held: "In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. ......If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution. He has to state what evidence he proposes to adduce for proving the guilt of the accused. ......If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution. When the case reaches the stage envisages in Section 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear form the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the presence cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. ......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice. ......It is open to the defence to cite him and examine him as a defence witness........" 34. The said issue was also considered by Hon'ble Supreme Court in R. Shaji (supra), and the Court, after placing reliance upon its judgments in Vadivelu Thevar V. State of Madras, (1957) AIR SC 614; and Kishan Chand v. State of Haryana, (2013) 1 JT 222 (SC), held as under: . "22. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this, does not carry any weight." 35. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extra- ordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness, if it is so warranted in the interests of justice. In fact, the evidence of the witnesses, must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same. 36. One of the argument of the learned counsel for the appellants is that ocular evidence of the P.W. -1 regarding time of occurrence does not corroborate with medical evidence as per version of P.W.-2. Rigor mortis was passed off from entire body. 36. One of the argument of the learned counsel for the appellants is that ocular evidence of the P.W. -1 regarding time of occurrence does not corroborate with medical evidence as per version of P.W.-2. Rigor mortis was passed off from entire body. According to the Medical Jurisprudence And Toxicology duration of rigor mortis is variable from age to age and according to it in temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. In deaths from lightning or electrocution, if accompanied with severe convulsions, the rigor mortis may appear quickly and pass away early. 37. Generally rigor mortis is processed after more than 24 hours. According to the statement of P.W.-2 Dr. B.L. Katiyar Rigor Mortis was passes away from dead body so as far medical jurisprudence death of the deceased was done more than 24 hours ago. So in these circumstances presence of P.W.-1 is doubtful. So the ocular evidence of P.W. -1 is inconsistent with medical evidence. This possibility is never denied that deceased Tahsin was murdered by some unknown persons, much before the time as alleged by prosecution and therefore, it cannot be ruled out that the appellants have been falsely implicated. No trail of blood found at place of occurrence. So the place of occurrence is also doubtful. 38. P.W. -1, who is eyewitness account revealed that all the four accused persons were armed with sickle and all of them assaulted victim and severed his head but only two incised wounds were noticed by doctor. Dimension and nature of injuries shows that murder of deceased was caused by heavy cutting weapon/ sharp edged weapon. P.W.-2 in his statements stated that injuries inflicted on the neck by heavy cutting weapon but cutting by sickle is seldom possible. In this case medical evidence is not in consonance with ocular evidence of P.W.-1. 39. Now, the question arise in this appeal that what is time of death of the deceased. P.W.-2 in his statements stated that injuries inflicted on the neck by heavy cutting weapon but cutting by sickle is seldom possible. In this case medical evidence is not in consonance with ocular evidence of P.W.-1. 39. Now, the question arise in this appeal that what is time of death of the deceased. Learned counsel for the appellant has submitted that according to the prosecution the death of the deceased occurred on 2.4.1994 at 4:00 p.m. and postmortem was done on 3.4.1994 at 1:15 p.m. according to the statement of the Doctor, P.W.-2 it is clear that the rigor mortis was passed over the dead body and it means that the death of the deceased occurred for more than 24 hours. It is also clear that death of the deceased was caused at least 3 to 4 hours before 4:00 p.m. on 2.4.1994 and thus it is crystal clear that death as alleged by the prosecution is false. Hence prosecution case is doubtful in this score only. 40. On appreciation of evidence it appears that that medical discrepancies should not be given doubt for any emphasis and such evidence should be taken from the point of view of trustworthiness. If the evidence of witness is incredible and cannot be accepted by the test of prudence then it may create a dent only on the prosecution version. Every man cannot take give exact material evidence and therefore, minor contradiction and inconsistent can create doubt upon the prosecution case and should not be taken to be a ground to discard the prosecution evidence. Only serious contradiction and omission which merely affect the case of prosecution creates serious mind of court about truthfulness and it creates that there is clear improvement and it is not safe to rely on such evidence. In this case evidence of witness is full of discrepancies, contradiction and improbable version, which drought to irresistible conclusion that evidence of witnesses cannot be base to convict the accused-appellants. 41. It is true that conviction can be based upon the testimony of single witness, if it is based upon the conduct of relevance and in that circumstances number of witness is not important but the quality of the evidence is important, which has been propounded consistently. With the apparent emphasis that evidence be weighted and will not be counted. 41. It is true that conviction can be based upon the testimony of single witness, if it is based upon the conduct of relevance and in that circumstances number of witness is not important but the quality of the evidence is important, which has been propounded consistently. With the apparent emphasis that evidence be weighted and will not be counted. The conclusive test being whether it has 16 rings of truth and it is cogent, credible, trustworthy or otherwise. 42. We are the of the considered opinion that the evidence of P.W.-1, who is eyewitness of incident of murder and as the manner he is projected the incident of murder is wholly unacceptable being fraught with improbabilities, oddities and inconceivable with normal human conduct or behaviour and this cannot be acted upon as a basis of conviction. Thus, the appellant are entitled to the benefit of doubt and, therefore, in the similar facts and circumstances of the case the contrary view taken by the courts below is against the weight of evidence on record. 43. Learned counsel for the appellant says that no motive has been assigned in the F.I.R. to the appellants in this crime. So prosecution failed to prove his case. 44. Per contra, learned A.G.A. contended that motive has no force where the direct evidence is available, although no motive has been assigned in the F.I.R. It is not necessary that motive must be present in the First Information Report. In this case during examination P.W.-1 deposed that there was enmity between him and with his real brother regarding the agricultural field and another motive as assigned by him is that prior to this incident Makshad Ali, Irshad Ali and Wasid were beaten by deceased Tahshin in kampil Bazar. 45. Needless to say that in criminal case the motive is double edged sword, as it kept reason for crime and at the same time it has reason for false prosecution especially when the motive alleged is of ill-will and bad blood. In the present case evidence on record inspire no confidence, therefore, reliance on the motive could not be safe and as such serves no purpose. 46. In this case in our considered opinion the motive is also not sufficient to commit such heinous crime. 47. It is to be noted that conduct of so called eyewitness PW-1 was absolutely unnatural. In the present case evidence on record inspire no confidence, therefore, reliance on the motive could not be safe and as such serves no purpose. 46. In this case in our considered opinion the motive is also not sufficient to commit such heinous crime. 47. It is to be noted that conduct of so called eyewitness PW-1 was absolutely unnatural. He did not make any effort to either safe the deceased when he was being assaulted by appellants with sickle or shouted when the dead body was ablaze or when the accused purportedly dragged away the dead body of the deceased. 48. Prosecution witness P.W.-1 never said by whose shout he was attracted to the scene of occurrence and it has also been given any evidence regarding that he shouted to attract any other people present in the field to save his son-in-law. 49. If really this witness P.W.-1 had seen his son-in-law when he was assaulted by the assailants in the manner, he would immediately rushed to the field where his son-in-law' dead body lying at the chak road. Therefore, such testimony of the eyewitness creates serious doubt regarding the fact that P.W.-1 had seen the incident. So the details of the incident given by him were imaginary or improbable and therefore, unbelievable. Thus, such unnatural conduct of prosecution witness and such evidence led by the prosecution do not have any support to prove the prosecution case and on the basis of such prosecution case, the appellants should not be convicted.. 50. There is clear contradiction with medical and ocular evidence. There is also contradiction in the oral evidence. 51. Going to the material on record we disregard with the findings of the trial court, as ocular and medical evidence are not in conformity with the case of prosecution to convict the accused. The trial court has brushed aside the fact involved in the prosecution case and in a very unconventional way convicted the accused. 52. In the above mentioned case of the contradictory single testimony accused-appellants have been convicted. In the case of Bhagwan Singh and others Vs. State of M.P., (2002) SCC(Cri) 736 Hon'ble Supreme Court has held that if two views are possible on the evidence adduced, the view which is favourable to the accused should be adopted. Paramount consideration of the Court is to ensure the miscarriage of justice is avoided. In the case of Bhagwan Singh and others Vs. State of M.P., (2002) SCC(Cri) 736 Hon'ble Supreme Court has held that if two views are possible on the evidence adduced, the view which is favourable to the accused should be adopted. Paramount consideration of the Court is to ensure the miscarriage of justice is avoided. Hence after considering the all parts and circumstances of the case we deem it proper to set aside the judgment of the trial court and acquitted the accused-appellants against the charge levelled upon them. The accused/appellants shall be set at liberty provided that they are not required in any other cases.. 53. The appeal is, accordingly, allowed. The order of conviction is set aside. 54. A copy of this order be communicated to the court below for necessary compliance..