JUDGMENT : Sanjay K. Agrawal, J. 1. Shilan (A-1), Kanhaiya (A-2), Om Kumar (A-4), Sarwan Kumar (A-5) & Sanyasi (A-6) have jointly preferred Cr.A.No.765/2016, whereas Rakesh Kumar (A-3) has independently preferred Cr.A. No.601/2016 under Section 374(2) of the CrPC questioning the impugned judgment & order dated 8-4-2016 passed by the Sessions Judge, Janjgir, District Janjgir-Champa in Sessions Trial No.176/2015, by which they have been convicted for offences under Sections 148 & 302 read with Section 149 of the IPC and sentenced to undergo rigorous imprisonment for one year & pay fine of Rs.500/- each, in default of payment of fine to further undergo additional rigorous imprisonment for three months and to undergo imprisonment for life & pay fine of Rs.1,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for six months, respectively, with a direction to run the sentences concurrently. 2. Since both the criminal appeals have arisen out of one and same judgment dated 8-4-2016 passed by the Sessions Judge, Janjgir, District Janjgir-Champa in Sessions Trial No.176/2015 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 3. Case of the prosecution, in a nutshell, is that on 8-8-2015 at 9.30 a.m., at Village Korbi, Police Station Baloda, District Janjgir-Champa, in furtherance of their common object, the appellants herein armed with deadly weapons, assaulted Ramcharan (since deceased) by deadly weapons by which he suffered grievous injuries and thereafter, in order to screen themselves from legal punishment, they hide the dead body in the house of Ramcharan and thereby committed the offence. The matter was reported by Itwara Bai (PW-1) – mother of deceased Ramcharan to the police station pursuant to which inquest was conducted vide Ex.P-5 and FIR was registered vide Ex.P-35 by Chandrama Singh Rajput (PW-12). Crime details form was prepared vide Ex.P-37 by Chandrama Singh Rajput (PW-12). The dead body of the deceased was sent for postmortem which was conducted by Dr. S.S. Tomar (PW-10) vide postmortem report Ex.P-27 in which cause of death was stated to be cardio respiratory arrest due to head injury with excessive bleeding and death was homicidal in nature. Thereafter, memorandum statements of all six accused persons were recorded pursuant to which wooden sticks / bamboo sticks were seized and clothes were also seized. S.S. Tomar (PW-10) vide postmortem report Ex.P-27 in which cause of death was stated to be cardio respiratory arrest due to head injury with excessive bleeding and death was homicidal in nature. Thereafter, memorandum statements of all six accused persons were recorded pursuant to which wooden sticks / bamboo sticks were seized and clothes were also seized. Seized articles were sent for chemical examination to the FSL, but FSL report has not been brought on record. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellants were charge-sheeted for offences under Sections 148, 302 read with Section 149 & 201 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions for conducting the trial and for hearing and disposal in accordance with law. 5. The prosecution, in order to bring home the offence, has examined as many as 12 witnesses and exhibited 46 documents Exs.P-1 to P-46. The appellants abjured the guilt and entered into defence. They have examined one witness Dharamlal Nirmalkar (DW-1) and exhibited one document Ex.D-1 i.e. the statement of Itwara Bai recorded under Section 161 of the CrPC at their instance in support of their case. The appellants were examined under Section 313 of the CrPC in which they denied the guilt. 6. The trial Court after considering ocular, oral and documentary evidence on record, convicted the accused/appellants only under Sections 148 & 302 read with Section 149 of the IPC and acquitted them of the charge under Section 201 of the IPC against which these appeals have been preferred by the appellants. 7. Mr. Rishi Rahul Soni, learned counsel appearing for the appellants, would submit that the accused/appellants have been convicted solely on the basis of the statement of Itwara Bai (PW-1) – mother of the deceased. He would further submit that Itwara Bai (PW-1), being an interested witness, is not reliable and there are material contradictions in the first information report lodged by her, in her statement under Section 161 of the CrPC and from that of her court statement. He would also submit that only two vital injuries have been noticed on the body of the deceased, whereas there are six accused persons and role of individual accused has not been defined. He would also submit that only two vital injuries have been noticed on the body of the deceased, whereas there are six accused persons and role of individual accused has not been defined. As per the first information report, the incident was witnessed by other persons also, but none of them have been examined in the court and other important witnesses have not supported the case of the prosecution and have been declared hostile. Therefore, the appeals deserve to be allowed and conviction & sentences imposed upon the appellants are liable to be set aside. 8. Mr. Ashish Tiwari, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to prove the case against the appellants beyond reasonable doubt and the trial Court has rightly convicted and sentenced them. He would further submit that the appellants have been convicted with the aid of Section 149 of the IPC and thus, the role of individual accused is not required to be explained. He would also submit that a very prompt report was lodged by Itwara Bai (PW-1) – eyewitness to the incident and minor contradictions in her statement are of no consequence because she is an old rustic villager and she is firm so far as describing the assault made by the appellants. He also argued that the accused persons have first tied up the deceased and then committed his murder. As such, the appeals deserve to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-27 proved by Dr. S.S. Tomar (PW-10) which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question is, whether the appellants are the authors of the crime? 12. S.S. Tomar (PW-10) which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question is, whether the appellants are the authors of the crime? 12. The trial Court held the appellants guilty on the basis of the statement of Itwara Bai (PW-1) – mother of the deceased and further, pursuant to the memorandum statements of the appellants, bamboo sticks / wooden sticks were seized, though it has not been supported by the witnesses to memorandum and seizure namely, Kripashankar Yadav (PW-6) & Pardeshi (PW-9), yet on the basis of the statement of Chandrama Singh Rajput (PW-12) – investigating officer, which has been relied upon by the prosecution, the appellants have been convicted. However, taking the seizure and memorandum statements as it is, the fact remains that the said bamboo sticks / wooden sticks were subjected to FSL, but the FSL report has not been brought on record, as such, the weapons of offence were not found to be stained with human blood and in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another, (2019) 7 SCC 781 , recovery of said articles pursuant to the memorandum statements of the accused persons is of no use to the prosecution. Further, the trial Court has held that Itwara Bai (PW-1) – mother of the deceased, is eyewitness to the incident and therefore she is wholly reliable and proceeded to base conviction of the appellants relying upon the sole testimony of Itwara Bai (PW-1). 13. In the matter of Joseph v. State of Kerala, (2003) 1 SCC 465 , their Lordships of the Supreme Court have laid down the principle that where there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of evidence tendered by other witnesses or the material evidence placed on record and following was observed at para 13:- “13. … Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. … Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 14. In the matter of State of Haryana v. Inder Singh, (2002) 9 SCC 537 (SCC p.538, para 5) (SCC p.538, para 5), it was held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidence-inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. 15. In the case of Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 , their Lordships after referring the judgments in Joseph (supra) and Inder Singh’s case (supra) finally held as under : “27. The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eyewitness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime.” 16. In the case of Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165 , the following was observed at para-16: “16. In the case of Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165 , the following was observed at para-16: “16. Thus, the finding of guilt of the two appellant-accused recorded by the two courts below is based on sole testimony of eyewitness PW 1. As a general rule the court can and may act on the testimony of single eyewitness 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 Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but 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 [see [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367 : 2004 SCC (Cri) 1055]].” 17. Similarly, the Supreme Court in the matter of Lallu Manjhi and another v. State of Jharkhand, AIR 2003 SC 854 , relying upon the decision in the matter of Vadivelu Thevar etc. v. State of Madras, AIR 1957 SC 614 , classified the oral testimony of a witness into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable, and held in paragraph 10 as under: - “10. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (See Vadivelu Thevar etc. v. State of Madras, AIR 1957 SC 614 ).” 18. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (See Vadivelu Thevar etc. v. State of Madras, AIR 1957 SC 614 ).” 18. Now, the question is whether the testimony of Itwara Bai (PW-1), is either wholly reliable or wholly unreliable or under the third category i.e. neither wholly reliable nor wholly unreliable? However, before considering the testimony of Itwara Bai (PW-1), it would be appropriate to consider the testimonies of other witnesses considering the argument raised on behalf of the appellants. 19. Chunnulal (PW-2) is neighbour of the appellants and the deceased, however, only the pertinent statement which he has made is that deceased Ramcharan (saint) was residing on way to Village Dongri which is near public place and he has heard that Ramcharan died by accident. 20. Dilip (PW-3), S/o Krishna Kumar Nirmalkar, is nephew of Shilan (A-1) and he is also related to the deceased. He has clearly stated in para 2 of his evidence that deceased Ramcharan was a saint and he was residing in Kormi in one room and used to perform pooja path. 21. Madhyesh Yadav (PW-4) has stated in his statement before the court that Ramcharan was found injured on Saraisingar Road near his house and thereafter, villagers brought him to his mother's house in the locality where Itwara Bai (PW-1) – mother of deceased Ramcharan, used to reside. 22. Raghuvir Singh Kushram (PW-7) is Patwari. He has stated that the map which he has prepared vide Ex.P-25 is of the Main Road and adjoining to that, there is a street. 23. As such, from the statements of aforesaid witnesses, it is quite vivid that deceased Ramcharan being a saint was living separately and performing pooja path etc., from his mother Itwara Bai (PW-1) on the way to Saraisingar Road and according to Madhyesh Yadav (PW-4), he was found injured near his house on Saraisingar Road. 24. Now, in this context, the statement of Itwara Bai (PW-1) recorded under Section 161 of the CrPC deserves to be examined. The statement of Itwara Bai (PW-1) has been marked as Ex.D-1 at the instance of defence. 24. Now, in this context, the statement of Itwara Bai (PW-1) recorded under Section 161 of the CrPC deserves to be examined. The statement of Itwara Bai (PW-1) has been marked as Ex.D-1 at the instance of defence. In Ex.D-1 as also in the first information report (Ex.P-35), the case projected by Itwara Bai (PW-1) is that deceased Ramcharan used to molest daughter-in-law of Shilan (A-1) and wife of Kanhaiya (A-2) namely, Sandhya and she also suffered miscarriage on account of which all the appellants on 8-8-2015 at 9.30 a.m. tied the hands of Ramcharan and assaulted him by which he suffered grievous injuries and died and thereafter, they hide the dead body in the house of Ramcharan. However, Itwara Bai (PW-1) was examined before the Court on 1-12-2015 in which she has stated that on the date of offence, at 9 a.m. while she was coming back after taking bath in the village pond, Shilan (A-1) & Kanhaiya (A-2) tried to outrage her modesty by which she came beneath a tree and was standing there and her son, who was enjoying tea in the nearby place, has seen the incident and all the appellants tied his hands and assaulted him by lathi which she has witnessed by her own eyes. She has been contradicted with her statement recorded under Section 161 of the CrPC vide Ex.D-1 that the fact of assaulting the deceased by the appellants has not been mentioned to which she has stated that if she has not mentioned, she cannot state the reason. However, it appears from the statement of Itwara Bai (PW-1) that, 1. Genesis of the offence according to her statement under Section 161 of the CrPC is, molestation of Sandhya – wife of Kanhaiya (A-2) by the deceased, whereas in the statement before the Court, she has stated that since Shilan (A-1) & Kanhaiya (A-2) wanted to outrage her modesty which her son has seen, on account of that, the appellants tied his hands and caused injuries. 2. 2. Genesis of the offence recorded in the statement under Section 161 of the CrPC and the Court statement are quite different which she has already been contradicted to her statement under Section 161 of the CrPC and before the Court, she has stated that the appellants assaulted Ramcharan by axe as well as by lathi, however, admittedly, axe has not been recovered from the possession of any of the appellants and Dr. S.S. Tomar (PW-10) only found lacerated wound on the body of the deceased in his postmortem report Ex.P-27, which has been proved by Dr. S.S. Tomar (PW-10). As such, neither axe has been recovered nor injury caused by axe has been found over the body of deceased Ramcharan. 3. There is material difference in the statement of Itwara Bai (PW-1) in respect of the place of occurrence. Admittedly, as per the statement of Itwara Bai (PW-1) herself before the Court, her son Ramcharan (deceased) being a saint has constructed a house in the village and living therein separately and was performing pooja path over there. She has also stated that 30-35 years back, he went to Maihar and became saint and his house is on the way to Village Dongri which has also been confirmed by Chunnulal (PW-2) & Dilip (PW-3). Similarly, as per the statement of Itwara Bai (PW-1) herself, she was informed by the brother of Dharmendra Mahant about the injured body of Ramcharan, but she claimed to have seen the incident which is also clear from the statement of Madhyesh Yadav (PW-4) that injured body of deceased Ramcharan was found near Saraisingar Road where the deceased used to live separately and his dead body was brought to the house of his mother at Village in the locality. 4. Furthermore, no specific overt-act has been attributed to each of the appellants by Itwara Bai (PW-1) and recovery of axe has not been made, only that of lathi has been made on which no human blood has been found and FSL report has not been brought on record. 5. Similarly, the appellants are said to have tied the hands of Ramcharan, but surprisingly, rope has not been seized from the possession of either of the appellants or from the spot. 25. 5. Similarly, the appellants are said to have tied the hands of Ramcharan, but surprisingly, rope has not been seized from the possession of either of the appellants or from the spot. 25. As such, there is material contradiction with regard to genesis of offence, place of offence and no specific role of any of the appellants has been attributed and moreover, the appellants are also said to have assaulted the deceased by axe, but axe has not been recovered and no incised wound has been found on the body of the deceased by the doctor conducting postmortem. The deceased was living separately and his dead body was found near his house on the way to Village Dongri. As such, the sole testimony of this eyewitness Itwara Bai (PW-1) would fall under the category of wholly unreliable witness as held by the Supreme Court in Vadivelu Thevar (supra) followed in Lallu Manjhi (supra). More particularly, apart from the evidence of Itwara Bai (PW-1), there is no other evidence on record to connect the appellants with the crime in question. As held earlier, even recovery of articles pursuant to the memorandum statements of the accused persons is of no use to the prosecution. In view of that, we are unable to uphold the conviction of the appellants and accordingly, they are entitled for acquittal on the basis of benefit of doubt. 26. In view of the aforesaid finding, conviction & sentences of the appellants under Sections 148 & 302 read with Section 149 of the IPC are set aside and they are acquitted of the said charges. All the appellants are in jail. They shall be forthwith set at liberty, unless they are required in connection with any other case. 27. The appeals stand allowed. 28. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.