JUDGMENT : VINOD DIWAKAR, J. 1. We have heard Shri Akhilesh Singh, learned counsel for the accused-appellants, Shri Rahul Asthana, learned AGA for the State-respondent, and perused the record. 2. The instant appeal has been preferred challenging the impugned judgment and order dated 7.2.1983 passed by VIII Additional District & Sessions Judge, Kanpur, in Sessions Trial No. 566 of 1978 titled as State v. Om Prakash and another, arising out of Case Crime No. 143 of 1978, u/s 302 IPC, by which the trial court has convicted the accused-appellants Shri Krishna and Om Prakash. The accused-appellant Om Prakash was sentenced to undergo imprisonment for life u/s 302 IPC, and the accused-appellant Shri Krishna was sentenced to undergo imprisonment for life u/s 302 read with 34 IPC. 3. Upon completion of the investigation, the police filed the charge-sheet against accused-appellants Om Prakash and Shri Krishan and the co-accused Shiv Nath Singh. The accused-appellant Om Prakash was charged u/s 302 IPC for committing murder of deceased-Ram Lal, and that the accused-Shri Krishna and Sheo Nath Singh u/s 302 read with section 34 IPC in furtherance to achieve the comon intention of committing murder on 18.10.1979. Subsequently, the accused- Shri Krishna and Sheo Nath Singh were charged u/s 302 read with section 34 IPC and that the accused-appellant Om Prakash u/s 302 IPC on 3.6.1980 afresh, wherein they denied the prosecution’s case and claimed trial. The learned trial court vide judgment and order dated 7.2.1983 acquitted the accused Sheo Nath Singh from the charges u/s 302/34 IPC, whereas accused-appellants Om Prakash was convicted u/s 302 IPC and Shri Krishna was convicted u/s 302 read with 34 IPC. 4. During the pendency of the appeal, the accused-appellant Shri Krishna died. Hence, the instant appeal against him stands abated. 5. Succinctly, the prosecution case is that the complainant- Suresh Kumar approached the Police Station Kakwan with a tehreer with regard to his father’s murder. On the basis of which the police initiated the investigation and subsequently the accused persons faced the trial. For clarity, the contents of tehreer are extracted herein below: 6. On the tehreer of complainant- Suresh Kumar (PW-1), the First Information Report bearing Case Crime No. 143, under Section 302 IPC was registered on 24/25.9.1978 at P.S. Kakwan, District Kanpur, against the accused persons. 7. For clarity, the contents of tehreer are extracted herein below: 6. On the tehreer of complainant- Suresh Kumar (PW-1), the First Information Report bearing Case Crime No. 143, under Section 302 IPC was registered on 24/25.9.1978 at P.S. Kakwan, District Kanpur, against the accused persons. 7. After registration of the FIR, the police conducted the investigation and recorded the statement of the witnesses under Section 161 Cr.P.C. and filed the charge-sheet against the accused persons, namely, (i) Shri Krishna, (ii) Om Prakash and (iii) Sheo Nath Singh. The Chief Judicial Magistrate took the cognizance and after complying with the provisions of Section 207 Cr.P.C. committed the case to the court of sessions for its trial. 8. In brief, the prosecution’s case is that in the intervening night of 24/25.9.1978 at around 01:30, upon Shri Krishna’s exhortation, accused Sheo Nath caught hold the deceased- Ram Lal and accused Om Prakash gave 4-5 knife blows on the deceased’s neck. After hearing a rescue call by the complainant, Desh Raj s/o Har Dayal and Babu Ram s/o Jagannath also wake up, who were sleeping about 5-6 paces away from the deceased. At the time of incident, Ram Bharosey s/o Umman Pal had also reached the place of incident. The deceased suffered six injuries and died on spot due to shock and haemorrhage as a result of injuries. The son of deceased Suresh Kumar (PW-1) scribed the tehreer and reported at the police station at 06:10 a.m. on 25.9.1978. Accused Shri Krishna, Om Prakash are named in the FIR, whereas name of accused Sheo Nath surfaced during the investigation. The accused Shri Krishna and Om Prakash were arrested on 26.9.1978 and kept in the lock up at Kannauj, and thereafter, on 27.9.1978 the police arrested accused Sheo Nath at 11:00 a.m. The knife which was used in the crime, was recovered at the pointing out of accused Sheo Nath from his house on 27.9.1978 at 09:00 a.m. The main reason for murder of deceased- Ram Lal was with regard to partition of a piece of ancestral land besides laying and living of water drainage. 9. The trial court framed the charges under Section 302 IPC against accused Om Prakash and against accused Shri Krishna and Sheo Nath Singh u/s 302 read with section 34 IPC, the same were read over and explained to the accused persons, who pleaded not guilty and claimed trial. 10. 9. The trial court framed the charges under Section 302 IPC against accused Om Prakash and against accused Shri Krishna and Sheo Nath Singh u/s 302 read with section 34 IPC, the same were read over and explained to the accused persons, who pleaded not guilty and claimed trial. 10. The prosecution had produced the following documentary evidence to prove its case: “(i) Written Report dated 25.9.1978, marked and exhibited as Ex.Ka-1 (ii) FIR dated 25.9.19678 at 01:30 in the night, marked and exhibited as Ex.Ka-5 (iii) Recovery memo of blood-stained clothes, marked and exhibited as Ex.Ka-2 (iv) Recovery memo of blood-stained knife, marked and exhibited as Ex.Ka-4 (v) Post-mortem report, marked and exhibited as Ex.Ka-3” 11. Besides the above documentary evidence, the prosecution had examined the complainant-Suresh Kumar, who is son of deceased-Ram Lal, as PW-1; Dr. Y.S. Das, who conducted post-mortem of the deceased, as PW-2; Ram Bharosey, an eye witness, as PW-3; Ram Babu, who witnessed the recovery of knife from the possession of accused Sheo Nath, as PW-4; Inspector Hari Shankar Sharma, the 1st I.O., as PW-6; Ct. Shyam Behari as PW-7; H/Ct. Jagdish Chandra Mishra, the scriber of the FIR as PW-8 and S.I. Z.H. Naqvi, who has recovered the knife from the possession of the accused Sheo Nath, as PW-9. 12. Complainant Suresh Kumar the deceased’s son - was examined as PW-1. In examination-in-chief, he reiterated the facts mentioned in the impugned FIR and stated that he was sleeping with his father in the same cot at the tube-well and in the intervening night of 24/25.9.1978 at around 01:30, when he woke up he saw accused Shri Krishan along with his son Om Prakash and one more unknown person, was standing near their cot. Accused Shri Krishna was having stick, accused Om Prakash was having knife, and the third person had country made pistol, and on Shri Krishna’s exhortation, the third person caught hold the deceased Ram Lal and the accused Om Prakash gave knife blows on his father- deceased. 13. PW-2 Dr. Y.S. Das conducted post-mortem of the deceased and observed the following injuries: “(i) Incised wound 13 cm x 4 cm x muscle deep running obliques and 5 cm in the outer side of the right forearm just below right elbow. (ii) Abrasion 21/2 cm x 1 cm x 3 cm below left elbow on the back. 13. PW-2 Dr. Y.S. Das conducted post-mortem of the deceased and observed the following injuries: “(i) Incised wound 13 cm x 4 cm x muscle deep running obliques and 5 cm in the outer side of the right forearm just below right elbow. (ii) Abrasion 21/2 cm x 1 cm x 3 cm below left elbow on the back. (iii) Incised wound 8 cm x 3 cm x cavity deep. It is 6 cm below right ear with right clavicular region. The upper dome of right lung and adherent structures including big vessels were cut. (iv) Incised wound 7 cm x 14 cm x muscle deep on the left half of mandible running obliquely. (v) Incised wound 6 cm x 3 cm x cavity deep, 11 cm above left nipple and 2 cm left of mid line of sternum clavicle bone x Ist x IInd ribs were cut underneath upper lobe of left lung was lacerated. (vi) Incised wound 9 cm x 4 cm x cavity deep 10 cm above right maguinal region with faecal matter coming out. (vii) Incised wound 6 cm x 2 cm x cavity deep and 3 cm above injury No. A, liver lacerated underneath. (viii) Incised-wound 3 cm x 1 cm and 1 cm above No. A and muscle deep. Doctor opined that the death was caused due to shock and haemorrhage as a result of the above injuries.” 14. Witness Ram Bharosey s/o Umman (PW-3) is the witness of occurrence, who had reached at the place of incident in middle of night and supported the prosecution’s case, and witness Ram Babu s/o Ayodhya Prasad (PW-4) is a witness to the arrest of co-accused Sheo Nath and also in his presence the knife used in the crime was recovered from the accused’s house on his pointing out. Inspector Hari Shankar Sharma, the 1st I.O. of the case was examined as PW-5 and S.I. Jagdish Chandra Sharma, who filed the charge-sheet was examined as PW-8. 15. To sustain the charges levelled against the accused persons, the prosecution rested its case on the testimony of Suresh Kumar (PW-1), Ram Bharosey (PW-3) and Ram Babu (PW-4). Inspector Hari Shankar Sharma, the 1st I.O. of the case was examined as PW-5 and S.I. Jagdish Chandra Sharma, who filed the charge-sheet was examined as PW-8. 15. To sustain the charges levelled against the accused persons, the prosecution rested its case on the testimony of Suresh Kumar (PW-1), Ram Bharosey (PW-3) and Ram Babu (PW-4). Suresh Kumar- the son of deceased, an eyewitness- is the prosecution’s star witness, whereas PW-3 Ram Bharosey joined the place of incident in the middle of night when he was going towards his field; PW-4 Ram Babu is the witness to the recovery. On his pointing out, the weapon used in the offence was recovered. The rest are police witnesses. 16. The trial court discussed the evidence produced by the prosecution in support of each of the fact, held that the prosecution satisfactorily established its case against accused Om Prakash and Shri Krishna and the prosecution could not establish the charges beyond reasonable doubt against accused Sheo Nath, therefore, acquitted him. 17. The accused-appellant Shri Krishna died during pendency of the appeal, therefore, the appeal abated against him, and accused Om Prakash is the sole surviving appellant in the instant appeal. 18. Learned counsel for the appellant made the following submissions: 18.1 The testimony of sole eyewitness Suresh Kumar (PW-1) cannot be relied upon because it contains material contradictions and improvements. The PW-1’s statement was contrary to the statement recorded by the police u/s 161 Cr.P.C. and no explanation was given as to why the investigating officer did not record certain material facts, which were necessary to prove the prosecution's case. 18.2 PW-2’s testimony is manifestly clear that he did not see the incident, as he was not present at the time of commission of crime. 18.3 The prosecution could not produce witness Desh Raj s/o Har Dayal and Babu Ram s/o Jagannath Pal, who were sleeping few paces away from the deceased’s cot, as per FIR to the reason best known to the prosecution, and no explanation came forth for the same. 18.3 The prosecution could not produce witness Desh Raj s/o Har Dayal and Babu Ram s/o Jagannath Pal, who were sleeping few paces away from the deceased’s cot, as per FIR to the reason best known to the prosecution, and no explanation came forth for the same. 18.4 Witness Ram Bharosey (PW-3) is Suresh Kumar’s (PW-1) first cousin and was a chance witness and it is highly improbable that someone would go to his field in the middle of night to guard his maize’s field and reach the place of incident after hearing the rescue call by the complainant and his two other cousin namely, Desh Raj and Babu Ram. 18.5 There was no reason for the police to detain the accused-appellant at the police lock up in Kannauj, whereas the police station Kakwan District Kanpur had the lock up, this shows that the accused-appellant was not present at the place of incident and as was in Kannauj. 18.6 Police got the statement of witness Ram Babu and Ram Bharosey recorded u/s 164 Cr.P.C. before the concerned Magistrate. They are interested witnesses and their statements did not find place in the Case Diary. No explanation from the prosecution has come forth as to why the prosecution did not produce witnesses Ram Babu and Ram Bharosey in the court despite the fact the statement was recorded u/s 164 Cr.P.C. Therefore, the prosecution has not presented the case as was there, instead they have come up with a different story to protect the real culprits. 18.7 No independent/public witness has been examined, and no recovery has been effected from the possession of accused-appellant Om Prakash. 18.8 The prosecution has miserably failed to connect the appellant with the commission of offence. The testimony of PW-1 is full of contradictions and embellishment and cannot be relied upon. The material brought on record by the prosecution did not show the accused’s complicity in the offence; thus, the appellant is liable to be acquitted of the charges. 18.9 It is not safe to rely upon the testimony of the eyewitness and must be examined with caution, especially, when PW-1 is an interested witness and deposing against his first cousin for commission of his father’s murder. 19. 18.9 It is not safe to rely upon the testimony of the eyewitness and must be examined with caution, especially, when PW-1 is an interested witness and deposing against his first cousin for commission of his father’s murder. 19. Per contra, learned A.G.A. for the State contended that the eye-witnesses PW-1, 3 & 4 are prosecution’s star witness and there was no reason for them to falsely implicate their own brother in murder of his father. The prosecution has successfully proved its case beyond all reasonable doubts against the accused. There is no reason to doubt the testimony of PW-1, who was sleeping along with his father at the time of offence. PW-1’s testimony is natural and shall be accepted and appreciated in totality. 20. The PW-1 was the only eye-witness to the incident, who was examined by the prosecution and was sleeping beside the deceased on the same cot, and had seen the appellant giving knife blows to the deceased. Since Ram Bharosey and Ram Babu were not examined by the prosecution, who were present at the time of incident; therefore, it is prudent to examine the admissibility of evidence of the sole eye-witness in view of Supreme Court’s judgment in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 which carved out three categories of witnesses; (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. 21. Succinctly, as per prosecution’s case, three persons had committed the crime. Accused Shri Krishna (since died) exhorted to kill the deceased and accused Sheo Nath (who has been acquitted by the trial court) caught hold the deceased and sole accused-appellant Om Prakash gave knife blows on the deceased. There is no material on the trial court record to establish common intention from the part of accused Sheo Nath to commit murder, therefore, he was acquitted from the charges of section 302 read with section 34 IPC. So far as accused Shri Krishna is concerned, he has died during the pendency of appeal, therefore, the instant appeal is abated qua him, and now we will test the prosecution's case against the sole surviving appellant Om Prakash. 22. The cumulative effect of both oral testimony and documentary evidence is paramount to assess the sterling quality and admissibility of the evidence presented during the trial. 22. The cumulative effect of both oral testimony and documentary evidence is paramount to assess the sterling quality and admissibility of the evidence presented during the trial. The trial court must weigh the credibility and reliability of both oral and documentary evidence to determine their overall probative value. To assess evidence of sterling quality, the court should consider various factors, including consistency, corroboration, relevancy and authenticity. Additionally, the court should evaluate the demeanor of the witness, the clarity and coherence of the testimony, and veracity of the documentary evidence. 23. By applying the ratio culled out in Vadivelu Thevar’s case (supra), we can safely conclude that: (i) there was a family feud between the parties, but there was no immediate motive for commission of the alleged offence. (ii) right from the beginning the prosecution’s case is that the incident was seen by Desh Raj s/o Har Dayal and Babu Ram s/o Jagannath-PW-1’s maternal brothers, but both of them were not produced by the prosecution before the court even though the I.O. got recorded their statements u/s 164 Cr.P.C. (iii) it is not safe to rely upon the testimony of Ram Bharosey (PW-3), who reached at the place of incident after hearing the rescue call by PW-1 Suresh Kumar, Desh Raj and Babu Ram, but none of them tried to save the deceased. This assumes significance because of the reason that in ordinary parlance two persons cannot commit a murder in the given facts and circumstances when three persons of almost equal age besides other co-villagers are present, and none of them offered any challenge to any of the accused being closely related. (iv) the PW-1 has categorically stated that he knew the accused Shri Krishna and Om Prakash, but he did not know the third accused, on whose pointing out the weapon of offence was recovered. (v) PW-1 says that he scribed the tehreer at the place of incident in the middle of night and thereafter proceeded towards the police station and could reach there at 06:00 a.m. This fact cannot be relied upon because of the fact that police station is only four mile from the place of incident and it is highly improbable to cover a distance of four miles in five hours and it is equally improbable that someone would keep a fountain pen and a copy at tube-well and scribe the tehreer in the torch light. (vi) it can’t be believed that son would not know whether his father was a life convict in the murder of one Laxmi Narayan the co-villager. (vii) it can’t also be believed that a brother would not know in the same case, his cousin’s father has been awarded capital punishment. He will also not know that his first cousin- accused Om Prakash is a teacher or a farmer, and where does he reside. (viii) PW-3 also states that he does not know about the third person. Witnesses Desh Raj and Babu Ram who were present at the time of incident, none has tried to intervene to save the deceased. (ix) PW-3 candidly admits that he along with deceased Ram Lal was awarded life imprisonment in the murder of Laxmi Narayan and they were subsequently released. The said Laxmi Narayan had illicit relations with deceased’s Ram Lal’s mother, therefore, he was murdered. (x) Desh Raj is deceased’s wife’s sister’s son and resides in village Sahaham, which is almost 13 miles from his village, he saw witness Suresh Kumar was crying to save his father, but none had heard him and Suresh Kumar (PW-1) did not write anything in front of him. (xi) the cumulative effect of testimony of PW-1 & PW-3 shows that they are neither wholly reliable nor wholly unreliable, thus the accused would have the benefit of such a situation. (xii) giving the aforesaid improvements and deliberations in the testimony of PW-1 & PW-3, it is not safe to wholly rely upon their testimony. (xiii) the weapon of offence was recovered from the co-accused Sheo Nath, who had already been acquitted by the trial court. (xiv) there is no positive evidence to connect the accused-appellant with the recovery of weapon and commission of offence. 24. Based on the aforesaid deliberations, we find it difficult to accept the testimony of PW-1, 3 & 4 in the manner the same has been deposed before the trial court. We consider that the testimony of PW-1, PW-3 & PW-4 would come in the third category of neither wholly reliable or wholly unreliable for the reasons recorded herein above. Therefore, the contesting accused-appellant Om Prakash is entitled to the benefit of doubt. 25. There is another cannon of criminal jurisprudence with respect to appreciation of evidence that the suspicion, however, strong, cannot take the place of proof. Therefore, the contesting accused-appellant Om Prakash is entitled to the benefit of doubt. 25. There is another cannon of criminal jurisprudence with respect to appreciation of evidence that the suspicion, however, strong, cannot take the place of proof. On appreciation of testimony of PW-1 and PW-3, we observed that two views are possible on the evidence adduced in the case, one pointing to the guilt to the accused-appellant Om Prakash and the other to his innocence. The view which is favourable to the accused-appellant Om Prakash has been adopted in the facts-circumstances of the case. 26. As a result, the instant Criminal Appeal No. 541 of 1983, arising out of impugned judgment and order dated 7.2.1983 passed by learned Additional Sessions Judge, Kanpur- VIII in Sessions Trial No. 566 of 1978 titled as State v. Om Prakash and others, is accordingly allowed; and thus, the impugned judgment and order dated 7.2.1983 passed by learned Additional Sessions Judge, Kanpur-VIII in the aforesaid sessions trial is set aside.