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2022 DIGILAW 221 (UTT)

Sunil Patwal v. State of Uttarakhand

2022-07-22

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

body2022
JUDGMENT : Sanjaya Kumar Mishra, J. 1. The appellants Sunil Patwal and Anand Sharma has assailed the judgment of conviction and sentenced passed by the learned 1st Additional Sessions Judge, Haridwar, in Sessions Trial No. 87 of 2004, State vs. Chataru @ Govind and others, dated 21.12.2013, whereby the appellants have been convicted under Sections 302, 364 and 201 read with Section 34 PC of the Indian Penal Code, 1860 (hereinafter referred to as ‘the Penal Code’) and have been sentenced to imprisonment of life and to pay fine of Rs. 3000/-, each, in default of payment of fine, to undergo three months of simple imprisonment; rigorous imprisonment for ten years for the offence punishable under Section 364 IPC along with fine of Rs. 2000/- each and in default of payment of fine, two months simple imprisonment; and to undergo three years’ rigorous imprisonment for the offence punishable under Section 201 IPC along with fine of Rs. 1000/- each, in default of payment of fine amount, one month’s of additional simple imprisonment. 2. In total 5 accused persons were tried for the offence punishable under Sections 302, 364, 201 and 147 of the Penal Code. Out of them, accused Chataru alias Govind, Vishal and Ajay Sharma alias Goli (in Sessions Trial No. 87 of 2004) were acquitted of the offences and the present appellants Sunil Patwal and Anand Sharma were convicted, as aforesaid. 3. The shorn of unnecessary details, the case of the prosecution is that on 09.03.2003 the complainant Ramesh Kumar presented an FIR before the Station House Officer, Police Station Kotwali, District Haridwar, inter alia, alleging that his son Soni alias Rajesh on 04.03.2003, at about 11:00 A.M. was taken away by Anil Kumar S/o Dori Lal reached to his house for settling the outstanding amount of Rs. 10,000/- but since then his son has not returned home and his whereabouts are not known. He apprehended that his son has been abducted or has been killed, therefore, he prayed for investigation into the allegations made by him. 4. On the basis of such a report, a Criminal Case No. 73 of 2003 was registered under Section 364 of the Penal Code and investigation took up the investigation of the case. In the course of investigation, he examined the complainant and the other witnesses. 4. On the basis of such a report, a Criminal Case No. 73 of 2003 was registered under Section 364 of the Penal Code and investigation took up the investigation of the case. In the course of investigation, he examined the complainant and the other witnesses. In course of the investigation, he was further informed that on 10.03.2003, they found the dead body of the deceased floating in a river uhy /kkjk xaxk th Bksdj uEcj 10 (Neel Dhara Ganga Ji Thokar No. 10) and he further prayed that the necessary action may be taken. Thereafter, the Investigating Officer recovered the dead body from the river, held inquest thereon and dispatched it for postmortem examination. 5. In the course of the investigation, he arrested some of the accused, made seizures of the material objects and on completion of the investigation submitted charge-sheet against the accused appellants and others for the aforesaid offences. The defence took the plea of simple denial. In order to prove its case, the prosecution examined eight wittiness and led it to evidence several documents as exhibits. 6. PW2 Ramesh Kumar is the complainant of the case. He is also the father of the deceased. PW1 Smt. Neetu, happens to be the wife of the deceased who has stated about the last seen of the accused Anil Kumar and the two appellants on 4th March, 2003 at about 11:00 A.M. PW4 Ram Awatar is the main witness on whose evidence the prosecution relied heavily. He has been accepted as an eye-witness to the occurrence by the learned Trial Judge. He is also a witness to the recovery of the dead body of the deceased from the river. PW5 Preet Kamal is a witness of the Panchnama. Rests are the official witnesses. PW3 being the Doctor S.C.Srivastav, who conducted postmortem examination of the dead body of the deceased. PW7 Naresh Chandra Azad and PW8 Vijay Kumar are the two investigating Officers in this case. The defence has not examined any witness or led any documents in evidence in order to establish its case. 7. Rests are the official witnesses. PW3 being the Doctor S.C.Srivastav, who conducted postmortem examination of the dead body of the deceased. PW7 Naresh Chandra Azad and PW8 Vijay Kumar are the two investigating Officers in this case. The defence has not examined any witness or led any documents in evidence in order to establish its case. 7. Learned Trial Judge, taking into consideration, the nature of death of the deceased, which is stated to be due to drowning together with the evidence of PW1 Smt. Neetu, who had last seen the deceased in the company of the two appellants and the testimony of the alleged eye-witness PW4 Ram Awtar Verma, came to the conclusion that the prosecution has proved its case beyond the reasonable doubts and, therefore, proceeded to convict these two appellants for the offences, stated above. 8. In assailing the conviction of the two appellants in the aforesaid case, Mr. Ramji Srivastav would submit that the judgment of the learned Additional Sessions Judge is erroneous on the ground that PW4, who was accepted as an eye-witness of the occurrence, is, at best, a chance-witness. He would further argue that the prosecution has not been able to explain his presence at the time of occurrence on 04.03.2003 or at the time of recovery of the dead body i.e. on 09.03.2003. Emphatically, criticizing the evidence of PW4, the learned counsel appearing for the appellants would further submit that the co-incidence of PW4 remaining present at the time of alleging assault and witnessing the assault on the deceased as well as at the time of recovery of the dead body from the river, appears to be unnatural. He would further submit that though he was presented as an eyewitness of the prosecution, but curiously enough the Investigating Officer has not recorded his statement under Section 161 of the Code of Criminal Procedure, 1973, (hereinafter referred as “the Code). Furthermore, the learned counsel stated that PW4 has not revealed about the incident between 6-10th of March, 2003, a fact, which he has admitted in the cross-examination. Learned counsel would further submit that though the prosecution presented the case that the deceased was assaulted by means of an iron rod (saria), no injury was found on the dead body of the deceased which could have been caused by a hard and blunt object/weapon and the death of the deceased was caused by drowning. Learned counsel would further submit that though the prosecution presented the case that the deceased was assaulted by means of an iron rod (saria), no injury was found on the dead body of the deceased which could have been caused by a hard and blunt object/weapon and the death of the deceased was caused by drowning. Therefore, Mr. Ramji Srivastav, learned counsel for the appellant would submit that judgment of conviction and the sentence awarded to the appellants, passed by the learned Additional Sessions Judge is based on improper appreciation of evidences available on record and, therefore, the Court ought to disbelieve the eye-witness, to allow the appeal by setting aside the conviction and acquit the appellants for the offences, mentioned above. 9. Mr. Amit Bhatt, learned Deputy Advocate General would submit that the last seen theory and narration of the eye-witnesses and the nature of the death of the deceased would prove that the deceased was assaulted by the appellants and Anil and he was thrown into the river Ganga. As a result of which, he died out of drowning and, therefore, the appeal is liable to be dismissed affirming the conviction of the appellants and the sentence awarded to them. 10. Be it stated by us, that Anil was granted bail during the course of trial and he absconded, and therefore, the case was split up against him. In the course of trial, after examination of PW4, the learned Additional Sessions Judge also took the cognizance of the offence under Sections 302, 364, 201 and 34 of the Penal Code and also issued processes against one Sunita Chauhan vide order dated10.07.2008. However, this Court while allowing the Criminal Revision No. 144 of 2008, on 31.07.2013 came to the conclusion that the learned Additional District and Sessions Judge committed error in issuing processes against said Sunita Chauhan in exercise jurisdiction under Section 319 of the Code. Then order passed by the learned Additional Sessions Judge, Haridwar, under Section 319 of the Code was set aside by this Court. 11. Thus, it is apparent from the materials on record as well as the submissions made by the learned Counsel, the following evidences are forthcoming in this case and it is our duty to re-assess the evidence to find out whether the findings recorded by the learned Additional Sessions Judge are sustainable or not. 11. Thus, it is apparent from the materials on record as well as the submissions made by the learned Counsel, the following evidences are forthcoming in this case and it is our duty to re-assess the evidence to find out whether the findings recorded by the learned Additional Sessions Judge are sustainable or not. The facts/evidences are stated herein below: (i) The nature of the death of the deceased. (ii) Last seen of the deceased in the company of the absconding accused Anil and the present two appellants (iii) The narration of the eye-witness PW4, who is stated to be a chance witness. 12. Taking of these components of evidence, one by one, first, it is to be seen whether the prosecution has proved that the deceased suffered a death which should be termed as homicide. PW3 Doctor S. C. Srivastava has conducted postmortem examination on the dead body of the deceased. He has stated on oath that on 11.03.2003, he was posted as Medical Officer in the District Heard Quarter Hospital, Haridwar. On that date at about 10:30 A.M., he conducted the postmortem examination of the dead body of Rajesh being identified by CP 633 Hoshiyar Singh and CP 109 Vijendra Singh. At the time of postmortem examination, he found the dead body to be in a decomposed state. He found the following injuries: (i) [kqlZV fy, uhyxw fu'kku 7 lseh xq.kk 5 lseh] lwtu lfgr 10 lseh xq.kk 8 lseh] ekFks o flj ds nkfguh rjQ nkfguh HkkSa ls 5 lseh- mijA (ii) [kqlZV fy, uhyw lwtu lfgr 4 lseh- xq.kk 2 lseh- psgjs ds nkfguh rjQ] nk;ha vka[k ls 1 lseh uhpsA (iii) dbZ [kqlZV fy, uhyxw 11 lseh xq.kk 9 lseh- ds {ks=Qy esa psgjs ds nkfguh rjQA Stating in English, it is seen that the Doctor on post-mortem examination found the abrasion and swelling on the right side head and on the face on the right side. On internal examination, he found blood clotting and hemorrhage in the brain. Both the lungs were swelling, hemorrhaging and full of water. He found one liter of semi-digested food in the stomach. Stomach was filled with water. At the time of postmortem examination, the Doctor opined that the deceased died due to throwing resulting in asphyxia. He further stipulated the time of death to be 3 to 5 days prior to the postmortem examination. He found one liter of semi-digested food in the stomach. Stomach was filled with water. At the time of postmortem examination, the Doctor opined that the deceased died due to throwing resulting in asphyxia. He further stipulated the time of death to be 3 to 5 days prior to the postmortem examination. In the cross-examination, he has stated that the injuries on the body of the deceased could be possible by fall on stone. He also admitted that death could have been between 5 to 7 days before. 13. Thus, on analysis of the evidence of Doctor reveals that the death of the deceased was caused due to drowning. The injuries found on the dead body of the deceased could have been caused by fall on stony surface. No injury which could have been caused by hard and blunt object was found on the dead body of the deceased. The Doctor has not stated definitely that the death of the deceased was homicidal in nature. Thus, the finding regarding the death of the deceased that is to say whether it was homicidal or not, shall depend upon the other evidences available on record and the Doctor’s evidence itself is not enough to come to the conclusion that the death of the deceased definitely was homicidal. 14. Coming to the second component of the evidence, it is seen that the statement of PW1 is much relevant. She happens to be wife of the deceased. She has stated on oath that on 4th March, 2003, the absconding accused Anil came to their house and called her husband. She further stated that Anil had kept Rs. 10,000/- belonging to her husband and was not returning the same. Her husband had asked Anil to return the same on many occasions, but he was not paying any heed to him. On the relevant date, Anil came to her husband and told that he will settle the account and, therefore, her husband went with him. At that time, the witness was standing near the deceased. She also saw two other boys were standing accompanying Anil. She has identified those two persons as Sunil Patwal and Anand Sharma, i.e., the two appellants before us. She has further stated that she saw three accused persons taking away her husband. She has further stated that her husband did not come back. She also saw two other boys were standing accompanying Anil. She has identified those two persons as Sunil Patwal and Anand Sharma, i.e., the two appellants before us. She has further stated that she saw three accused persons taking away her husband. She has further stated that her husband did not come back. Thereafter, they look for him but they could not find any clue and suspected that the appellants and Anil could have committed his murder. Besides three persons, two other persons were standing beside, their names are Vishal and Goli, who have since been acquitted by the learned Trial Court. In the cross-examination, she has stated that she went to Police on 5th March, 2003. Sunil Patwal and Anand did not come inside their house. They were standing about 3 feet away on the Chowk. She has admitted in the cross-examination that the statement she has given in the examination-in-chief to the effect that at that time she was standing near her husband and she saw the three accused persons taking away her husband, was stated by her for the first time in the Court. She has stated for the first time, she stated so, in the court after taking the legal advice. Thus, it is clear that this witness has stated about the incident that deceased came in the company of Anil and other two persons (appellants herein) on 4th March, 2003 and that too she has not stated about this incident so specifically before the Investigating Officer and that she has stated so for the first time in the court after taking the legal advice. Thus, it will be unsafe to rely on the evidence of this witness only to come to the conclusion that the appellants were definitely seen in the company of the deceased for the last time on 04.03.2003. 15. It is trite that whenever the prosecution relies upon the evidence regarding the last scene of the deceased, the Court trying or the Appellate court should rely upon such statements only when the time gap between ‘the last seen together’ of the deceased and the accused and the discovery of the dead body is so small that there was no possibility of any other person committing the crime in the interregnum. In this connection, we take note of the following precedents enunciated by the Hon’ble Supreme Court: 16. In this connection, we take note of the following precedents enunciated by the Hon’ble Supreme Court: 16. In the case of Ramreddy Rajeshkhanna Redddy Khanna and others vs. State of M.P., (2006) 34 SCC 172, wherein the Hon’ble Supreme Court has held that the last seen theory come into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found that he is so small that the possibility of any other person, other than the accused being the author of the crime, becomes impossible. The Hon’ble Supreme Court has further held that even in such a case, the Court should look for some corroboration. 17. In the case of State of Uttar Pradesh vs. Satish, (2005) SCC 114, the Hon’ble Supreme Court has held that the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. The Hon’ble Supreme Court further held that in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. Similar, in the case of Bodhraj alias Bodha and others vs. State of Jammu and Kahsmir, (2002) SCC 45, the principles stated in the preceding paragraphs were reiterated. 18. Thus, it is clear that basing only on the piece of evidence of PW1 a conviction cannot be recorded. However, if there is other corroborative piece of evidence then the last seen theory as propounded by the prosecution may be taken as the circumstance, which is not explained by the defence, can be said to be incriminating against the appellants and further this Court has to examine the evidence of PW4, who is presented to be an eye-witness in this case. 19. PW4 Ram Avtar Verma has stated on oath that on 04.03.2003 that he was to attend some work in the Shiv Lok Colony. 19. PW4 Ram Avtar Verma has stated on oath that on 04.03.2003 that he was to attend some work in the Shiv Lok Colony. When he was passing through the colony he heard from the rooftop of the building situated therein the shout gk;&gk ‘Haye Haye’. Hearing such sound, he climbed stairs and found that three persons, namely, Anand Sharma, Sunil Patwal and Anil were severely assaulting a boy. At that time, a lady came out of the house whose name is, Sunita Chauhan. She handed over an iron-rod to Anand Sharma and told not to sphere the deceased and further directed that he should be killed and thrown in the river Ganga. As a result, the witness became frightened and came down from that house. After sometime, he came and sat under a tree. After sometime, he saw that the injured was loaded in a Maheindra Jeep and was taken away from that place. 20. He has further stated on oath that he use to take stroll on the banks of river Ganga. On 10.03.2003, he was taking a stole on the bank of the river Ganga, he saw the dead body on the river bank. By looking at the dead body, he could know that the dead body belongs to the person who was assaulted by the two appellants and Anil on being instigated by the lady Sunita Chauhan. He further saw that father of the deceased was weeping near the dead body. The witness further stated that he consoled the deceased’s father and stated that he has seen the assault on his son. As a result of which, the said father of the deceased, who is examined as PW2 and is the complainant in this case, told the Inspector about the direct knowledge of the witness. The Inspector thereafter stated that he has to complete the Panchnama formality first and then he will listen to the witness. He further stated that his narration was not heard by the Inspector. 21. In the cross-examination, this witness has stated that he earns his livelihood by selling toys. On 04.03.2003, by chance, he went to Shiv Lok colony alone to look out for a person who was working with him and was residing in Jhuggi Jhopri colony. He further stated that his narration was not heard by the Inspector. 21. In the cross-examination, this witness has stated that he earns his livelihood by selling toys. On 04.03.2003, by chance, he went to Shiv Lok colony alone to look out for a person who was working with him and was residing in Jhuggi Jhopri colony. He further stated on oath that the name of servant was Anil son of Vishamber and that he told the witness that he was residing in the Shiv Lok colony, but he has not given the number of his house. He has further admitted that prior to that day, he had never visited in the Shiv Lok colony and that the boy Anil son of Vishamber was working with him for the last 5 to 6 years. He further stated that there were about 10-15 houses and he could not state the number of house standing in the place of incident. He has also admitted that at that time on the road of Shiv Lok Colony about 30 to 40 persons were walking. Some of them were on scooters. He admitted that the sound was coming out of a two story building. At that time, nobody else was present except the witness. He also did not call anybody. He also told that after witnessing the incident in the Shiv Lok colony, he came back to his own house. He further stated that he became acquainted with Sunita Chauhan 5 to 6 months prior to the incident and that her husband was a Dhobi and there was a dispute between them. He denied that he had any knowledge regarding the dispute between Sunita Chauhan and some of his friends or that the cases were pending between them. The witness also stated that he knows the location of the Police Station and the Office of the Commanding Office of the City Magistrate. In the cross-examination, he has further stated that he reached at the spot all on a sudden. He did not make any statement before the Investigating Officer. The witness also stated in his cross-examination that Shiv Lok Colony is situated about 4 kilometers away from his house and that the Police Officer did not cite him as witness in the Pancnama. He did not make any statement before the Investigating Officer. The witness also stated in his cross-examination that Shiv Lok Colony is situated about 4 kilometers away from his house and that the Police Officer did not cite him as witness in the Pancnama. A combined reading of statements of PW4 with that of PW2 reveals that PW4 Ram Awtar was in the crowed when the dead body was lying in the river bank. PW 2 stated that on 04.03.2003, the appellants and the absconder Anil Kumar were assaulting the deceased in that Shiv Lok colony. He has further stated that when the deceased became unconscious they carried him in a Zeep, wherein two other persons were present. He has also stated before the informant about the complicity of the woman Sunita Chauhan. In the cross-examination, he further stated that in his statement recorded under Section 161 of the Code, he has stated that Ram Autar had told him about the assault on his son. In the cross-examination, PW6 Station House Officer, Jogendra Singh on oath has stated that neither the complainant nor the wife of the deceased, in their statements recorded under Section 161 of the Code revealed before him that Ram Autar S/o Virman Verma was present at the spot. 22. Thus, the major contradictions have been brought out by the defence in the statement of PW2, the complainant by the defence. PW2, the complainant has not stated about the presence of the sole eye witness PW4 at the time of occurrence in statement under Section 161 of the Code. PW 4 has stated that he is a social worker and also active in politics but did not report the matter to any of the authorities or the Police. Merely, because a person is a chance witness, his evidence cannot be disbelieved right from the beginning. However, the prosecution and the witness must explain and justify the presence of the witness at the spot at the relevant point of time. 23. In the case of Rajesh Yadav and another vs. State of U.P., (2002) SCC online SC 150, while considering the value of a chance witness the Hon’ble Supreme Court held that a chance witness is one who happens to be present at the place of occurrence of an offence by chance, and therefore, not as a matter of course. 23. In the case of Rajesh Yadav and another vs. State of U.P., (2002) SCC online SC 150, while considering the value of a chance witness the Hon’ble Supreme Court held that a chance witness is one who happens to be present at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, the Hon’ble Court further held that he is not expected to be in the place. A person working on the street witnessing commission of an offence can be examined as star witness. Merely, because the witness presence to see the occurrence by chance, his testimony cannot be brushed aside, though a little more scrutiny may be required at times. 24. Thus, the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the time of occurrence. The deposition of a chance witness whose presence at the place and time of occurrence remains doubtful should be discarded. Conduct of the chance witness subsequent to incident may be taken into consideration particularly, as to whether he has informed anyone else in the village about the incident. In judging the evidence of this witness, we find that PW4 Ram Awtar stated that he went to Shiv Lok colony on 04.03.2003 to look for a servant Anil. The said Anil was never examined by the prosecution in the court. So, it could not be verified whether the servant of this appellant was actually residing in the Shiv Lok colony or not. The conduct of the witness PW4 also becomes suspect in view of the fact that after seeing the assault on the deceased by the three persons known to him added by a lady who handed over an iron-rod to absconding accused Anil, did not reveal it to anybody though 30-40 persons were moving through that street and he simply went back to his house and kept quite. He did not reveal it before anybody. After 6 days that followed, till the discovery of dead body i.e. on 10th March, 2003. He remained silent. He did not reveal it before anybody. After 6 days that followed, till the discovery of dead body i.e. on 10th March, 2003. He remained silent. His statement that he revealed it before the informant, i.e., P.W.2, who happens to be father of the deceased, at the time of recovery of the dead body of the deceased is also belied from the fact that PW2 himself had not stated before the Investigating Officer in his statement recorded under Section 161 of the Code that Ram Awtar revealed before him about the assault on the deceased by the appellant and others. The witness has not been cited as a witness to the Panchnama and most importantly though it was bought into the knowledge of the Inspector In-charge of the investigation that the witnesses had seen the occurrence and presenting a direct evidence regarding the same by the Investigating Agency, this is a fact not disputed by the PW4 himself, the Investigating Officer did not record his statement in course of the investigation. 25. Thus, on a conspectus and close scrutiny of the evidence of this chance witness, it appears that he cannot be held to be ‘a wholly reliable witness’. On the sole basis of his testimony, a conviction recorded by the learned Additional Sessions Judge cannot be upheld. 26. Section 134 of the Indian Evidence Act 1872, (herein after referred to as “the Evidence Act”) provides that no particular number of witnesses is required to be examined to prove the fact. Thus, it is clear that even a single witness can be taken into consideration and the court can reach into a conclusion that the prosecution has proved its case beyond all the reasonable doubts. For ready reference, Section 134 of the Evidence Act is being quoted herein below: “134. Number of witnesses.-No particular number of witnesses shall in any case be required for the proof of any fact.” 27. It is, therefore, trite in the appreciation of the evidence that a single truthful witness may far outweigh way a thousand on untruthful witnesses. A Single eyewitness in order to rely upon must pass the test of reliability. We have consistently held that before proceeding to convict a person on the basis of a solitary eyewitness the Court must see the independent corroboration though not direct from the attending circumstances of the case. A Single eyewitness in order to rely upon must pass the test of reliability. We have consistently held that before proceeding to convict a person on the basis of a solitary eyewitness the Court must see the independent corroboration though not direct from the attending circumstances of the case. It is prudent and wise to test the evidence of a solitary eyewitness in the anvils of the objective circumstances appearing in that case. 28. In this case, in addition to lacuna pointed out by us in the preceding paragraphs, we also find that the evidence of the solitary eyewitness suffers from non-corroboration by the medical evidence. As discussed by us in the preceding paragraphs, the Doctor has opined that the injuries found on the dead body of the deceased were abrasion and bruises etc., which could have been caused by fall on a stony surface. In other words, the Doctor did not find any injury on the dead body of the deceased caused by a saria (iron rod), i.e., a hard and blunt object. Thus, testing of this witness as a solitary chance witness, we find enough reasons to take it with a pinch of salt and come to the conclusion that he cannot be held to be a ‘wholly reliable witness’ on the basis of which a conviction recorded by the learned Additional Sessions Judge can be upheld. Even if, we hold him to be a witness which is neither wholly reliable nor wholly unreliable, then also the attending circumstances are not coming fore in support of the case of the prosecution. 29. The Hon’ble Supreme Court in the case of Vadivelu Thevar vs. State of Madras, (1957) SCR 981 has for the first time categorised the witnesses into three categorised. In that case, the Hon’ble Supreme Court has held that the witnesses can be categorized into three categories. They are, (1st) wholly reliable witness, (2nd) the witnesses who are not wholly unreliable and (3rd) is neither wholly reliable nor wholly un-reliable witness. Most of the witness come in the 3rd category. In the aforesaid case of Vadivelu Thevar’s case (supra), the Hon’ble Supreme Court held that in order to rely upon a solitary witness, who is neither wholly reliable nor wholly un-reliable the court must seek some independent corroboration from the attending circumstances of the case. Most of the witness come in the 3rd category. In the aforesaid case of Vadivelu Thevar’s case (supra), the Hon’ble Supreme Court held that in order to rely upon a solitary witness, who is neither wholly reliable nor wholly un-reliable the court must seek some independent corroboration from the attending circumstances of the case. In this case, we find no corroboration from the attending circumstances available in this case. The medical evidence has not fully supported evidence of PW4. We have already pointed out that the evidence of PW4 is suffering from infirmities as he is a chance witness and his presence at the spot is not properly explained. He had never told about the incident before anybody for the 6 days, after witnessing the assault. His statement that he revealed it to the father of the deceased is also belied and that his statement was never recorded by the Investigating Officer under Section 161 of the Code. 30. In that view of the matter, this Court is of the opinion that the learned Additional Sessions Judge committed error on record by coming to the conclusion that the prosecution has proved its case beyond all reasonable doubts. Hence, we find enough ground to set aside the conviction. Hence the appeals are allowed. The judgment of conviction and order 21.12.2013 passed by the learned 1st Additional Sessions Judge, Haridwar are hereby set aside. The appellants are stated to be on bail. They be set at liberty forthwith by cancelling their bail bonds. Let the Trial Court Records be sent back to the court concerned for compliance.