Jharkhand High Court
Kuwar Lakra vs The State Of Jharkhand on 4 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1018 of 2003
[Against the Judgment of conviction dated 14th July, 2003 and Order of sentence
dated 17th July, 2003, passed by learned Session Judge, Simdega, in Session
Trial No.143 of 1993 arising out of Kurdeg PS Case No.35 of 1992]
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1. Kuwar Lakra
2. Anjulas Lakra
Both are sons of Patras Lakra
3. Patras Lakra
All are residents of village-Jigrakani, PS-Kurdeg, District-Simdega
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
With
Criminal Appeal (D.B.) No.1327 of 2003
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Isdor Lakra, son of Patras Lakra, R/o Village-Jigrakani, PS_Kurdeg,
District-Simdega ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellants : Mr. Chandan Kumar, Advocate
(in both the cases)
For the Respondent : Mr. Vishwanath Roy, APP
(in both the cases)
C.A.V on 21.02. 2025 Pronounced on 04/04/2025
Per Sujit Narayan Prasad, J.
1. Since both these appeals arise out of the common judgment of conviction
and order of sentence, as such with the consent of learned counsel for the
parties, they are taken up together and are being disposed of by this
common order.
2. These appeals have been filed under section 374(2) of the Cr.P.C against
the judgment of conviction dated 14.07.2003 and order of sentence dated
17.07.2003, passed by the learned Session Judge, Simdega, in Session
Trial No.143 of 1993 arising out of Kurdeg PS Case No.35 of 1992
corresponding to G.R. Case No.428 of 1992 registered under Sections
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302/324/323/34 of the Indian Penal Code whereby and whereunder the
appellants have been convicted under section 302/34 of the Indian Penal
Code and have been directed to undergo life imprisonment for the offence
under Section 302/34 of the Indian Penal Code.
3. At the outset it needs to refer herein that the appellant no.1, namely,
Kuwar Lakra and the appellant no. 3, namely, Patras Lakra, in Cr. Appeal
(DB) No.1018 of 2003 have died during pendency of these criminal
appeals.
4. In this regard a report of the Mukhiya of village-Chadrimunda dated
17.09.2024 has been forwarded by the then Officer-in-charge of Kurdeg
PS to the Registry of this Court vide his letter dated 25.09.2024.
5. The learned counsel for the appellants has submitted that in view of the
aforesaid fact, Cr. Appeal (DB) No.1018 of 2003 may be abated so far as
the appellant no.1, namely, Kuwar Lakra and the appellant no. 3, namely,
Patras Lakra are concerned.
6. This Court, in view thereof, is of the view that the Cr. Appeal (DB)
No.1018 of 2003 qua the appellant no.1, namely, Kuwar Lakra and the
appellant no. 3, namely, Patras Lakra stands abated.
Factual Matrix
7. This Court, before proceeding to examine the legality and propriety of
the judgment of conviction and order of sentence, deems it fit and proper
to refer the background of institution of prosecution case. The
prosecution story in brief as per the allegation made in the First
Information Report reads hereunder as :-
8. The prosecution story as per FIR, in short, is that about three days prior
to the alleged occurrence a goat-kid belonging to the informant got
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traceless and later the said goat-kid was discovered in the house of the
accused Kuwar Lakra. Thereafter the informant lifted the said goat-kid
and brought the same to her house.
9. On 26.12.92 all accused persons came to the house of the informant and
they asked the deceased to return the goat-kid which was lifted by the
informant from their house. On not acceding the said demand, the
accused persons forcibly took the deceased in front of their house. The
accused persons laid down deceased on the ground and thereafter the
accused Kuwar Lakra went to his house and came being armed with an
axe and he thereafter on the instigation of the other accused persons
started giving axe blows on the person of the deceased. All blows were
hit on head or near head. When the informant tried to save the life of her
husband she was assaulted with axe by the accused Kuwar Lakra and the
accused Patras Lakra caused assault on the person of the informant by
means of Lathi.
10. The informant screamed for help but no one could reach because of no
other habitants there. The deceased succumbed to injury on spot and the
accused persons thereafter fled away.
11. On the same day the police reached to the place of occurrence on getting
information and recorded fardbeyan of the informant and took up the
investigation. The fardbeyan was forwarded to Kurdeg P.S. for institution
of a case and, accordingly, an F.I.R. was registered against the accused
persons under sections 302/324/323/34 of the Indian Penal Code.
12. After due investigation chargesheet was submitted against the
abovenamed appellants.
13. Thereafter, cognizance of the offence had been taken and accordingly
the case was committed to the Court of Sessions.
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14. All accused persons stand charged under Section 302 of the Indian Penal
Code for committing murder of Victor Lakra, the deceased.
15. The appellant Kuwar Lakra (now dead) further stands charged under
Section 324 of the Indian Penal Code for causing voluntarily hurt to the
informant, namely, Margret Kerketta by means of an axe, a sharp cut
weapon. The accused Patras Lakra (now dead) further stands charged
under Section 323 of the Indian Penal Code for causing voluntarily hurt
to the informant, namely, Margret Kerketta.
16. All the charges stand read over and explained to the accused persons in
Hindi to which they pleaded not guilty and claimed to be tried.
17. The prosecution has altogether examined seven witnesses, namely, PW1-
Lajrus Kindo, PW2-Milanus Kerketta, PW3-Margret Kerketta (the
informant), PW4-Imil Kispota, PW5-Dr. Krishna Deo Chaudhary, who
conducted postmortem examination over the dead body, PW6-Babandeo
Mishra (the Investigating Officer) and PW7-Falinder Nayak.
18. The learned trial Court, after recording the evidence of witnesses,
examination-in-chief and cross-examination, recorded the statement of
the accused persons, found the charges levelled against the appellants
proved beyond all reasonable doubts.
19. Accordingly, the appellants had been found guilty and convicted for the
offence punishable under 302/34 of the Indian Penal Code and have been
directed to undergo life imprisonment for life for the offence under
Section 302/34 of the Indian Penal Code.
20. The aforesaid order of conviction and sentence is subject matter of instant
appeals.
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Submission of the learned counsel for the appellants:
21. Learned counsel for the appellants has submitted that the impugned
Judgment of conviction and Order of sentence passed by the learned Trial
Court cannot be sustained in the eyes of law.
22. The following grounds have been taken by the learned counsel for the
appellants in assailing the impugned judgment of conviction:
(i) The present appellants have been convicted on the basis of
evidence adduced by PW3 namely Margret Kerketta (the
informant) who is the sole eyewitness of the case, who is not
at all reliable and trust worthy witness and that too, on such
solitary evidence without any corroborating evidence, the
conviction of the appellants is bad and fit to be set aside.
(ii) The ground has been taken that the conviction since is based
upon the solitary eye witness, i.e., PW3 (informant) without
having been corroborated by the testimony of the other
witnesses since some of them turned hostile and as such
conviction cannot be said to be based on sound reasoning.
(iii) The informant had given a different version with regard to
the assault in her fardbeyan and in her deposition while
examining as PW3 and as such the conviction based upon
the aforesaid testimony is bad and fit to be set aside.
(iv) Motive behind the alleged occurrence as testified by the
PW3 (informant) in her deposition that three days prior to
the occurrence a goat-kid belonged to the informant was
missing out. On search, the informant took a goat-kid from
the house of the present appellants whereafter these
appellants went to the house of the informant to take back
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:10484-DBthe goat-kid. After some altercation, they dragged her
husband from her house and assaulted with axe and lathi due
to which her husband died. When the informant tried to save
her husband, she was also assaulted by these appellants by
means of axe and lathi. After that, the appellants fled from
the place of occurrence. The said mensrea as stated by the
informant cannot be accepted reason being that if the said
kid was taken back by the informant prior to three days of
the occurrence, then why these appellants went to bring
back the said kid after three days and assaulted the husband
of the informant with axe and lathi due to which the husband
of the informant died.
(v) Further as per the FIR, the informant, PW3, was present at
the place of occurrence and she had seen the assault upon
the deceased (her husband) by these appellants. In her
fardbeyan she specifically stated that Kuwar Lakra brought
a Kulhari (axe) from his house and he assaulted her husband
with the axe on his face, head and ear whereas during trial
while implicating all the appellants in the alleged crime she
has deposed that all the accused person assaulted the
deceased.
(vi) It has been contended that the medical evidence is wholly
contradicts the statement of the informant with regard to
dragging the deceased from the house of the informant to
the house of these appellants. The informant has alleged that
these appellants dragged the deceased from her house to
their house but in the medical examination report of the
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:10484-DBdeceased it is nowhere mentioned that the deceased had any
bruise or injury on his back, hand, elbow etc.
(vii) Further, the learned trial court failed to appreciate the fact
that as per the statement of PW1, Lajrus Kindo, a tangi was
seized nearby the dead body of the deceased whereas the
Investigating Officer has stated that the tangi was produced
by the accused Kuwar Lakra.
(viii) In her deposition PW3, the informant has stated at
paragraph no.2 that Anjlus Patras and Isdor asked Kuwar
Lakra to bring tangi thereafter they assaulted the deceased
whereas in her cross-examination at paragraph no.9 she
deposed that accused persons were armed with lathi, tangi
and sword which falsifies the version of the prosecution that
if the accused persons were armed with lathi, tangi and
sword, then why Anjlus Patras and Idsor asked Kuwar Lakra
to bring an axe, as such, the prosecution story is totally
baseless and false.
(ix) The blood-stained axe which had been alleged to be used in
said commission of crime had been recovered from the
place of occurrence but the same had not been sent for FSL
report and in absence of FSL report it cannot be said that the
prosecution has proved the case beyond all reasonable
doubts.
(x) It has been contended that the Chaukidar who was an
important witness in this case has not been examined by the
prosecution because as per the statement of the informant
she at first informed the Chaukidar about the incident.
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23. The learned counsel for the appellants, based upon the aforesaid ground,
has submitted that the learned trial court has not taken in to consideration
of the aforesaid facts as such impugned judgment requires interference,
hence not sustainable in the eyes of law.
Submission of the learned counsel for the state respondent:
24. While defending the judgment of conviction and sentence the learned
counsels appearing for the State raised the following arguments in
response to the grounds raised by the learned counsel for the appellants
which has been referred hereinabove:
(i) It is a case where the prosecution has been able to prove the
charge beyond all reasonable doubt.
(ii) Admittedly in the instance case the weapon used in
commission of crime has been seized and the prosecution
based upon the cogent testimony of the eyewitness who is
none but the wife of the deceased has proved the case
beyond all reasonable doubts.
(iii) So far as the argument advanced on behalf of the appellants
that there cannot be conviction on the basis of solitary eye
witness, the submission has been made that if the testimony
of the eye witness is fully trustworthy then there is no bar in
passing the judgment of conviction on the basis of the
testimony of the solitary eye witness. The learned counsel
for the State in order to fortify their argument have relied
upon the judgment rendered by Hon’ble Apex Court in the
case of Namdeo vs. State of Maharashtra reported in
(2007) 14 SCC 150.
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(iv) All the prosecution witnesses have conclusively supported
the prosecution version, particularly, PW3 who is the
eyewitness of the alleged occurrence.
(v) Learned counsel for the State has further submitted that the
solitary eye witness since has gracefully made meticulous
description of the occurrence, which has been corroborated
by medical evidence and other witnesses including
Investigating Officer, as such the evidence of sole eye
witness is to be fully relied upon while proving the charge
against accused persons as it is settled principle of law that
quality of witness matters and not the quantity of witness.
(vi) So far question of motive is concerned, it has specifically
been stated by the informant in her testimony that all the
accused persons armed with lathi, tangi and sword had
assaulted the deceased (her husband) due to which he died,
so it cannot be said that motive is absent in the case at hand.
(vii) So far, the issue of not sending the blood-stained soil to the
FSL is concerned, the case of prosecution cannot be
disbelieved on the aforesaid score as an eye witness and
other court witnesses have fully supported the case of the
prosecution.
(viii) The Investigating Officer has corroborated the occurrence
by supporting the testimony of the prosecution witnesses as
also the occurrence has been corroborated by the medical
evidence wherein the Doctor has found the nature of injuries
having been caused by sharp cutting weapon.
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(ix) The informant while saving her husband (the deceased) had
also assaulted by the appellant with the tangi due to which
she got injury on her hand and medical report fully proved
her version.
25. Learned counsels appearing for the State, based upon the aforesaid
premise, has submitted that the impugned judgment does not suffer from
any error, hence the instant appeals are fit to be dismissed.
Analysis
26. We have heard learned counsel for the parties, perused the documents
available on record as also the finding recorded by the trial court in the
impugned judgment.
27. We have also gone through the testimonies of the witnesses as available
in the LCR as also the exhibits.
28. Learned trial court, based upon the testimonies of witnesses, has passed
the judgment of conviction convicting the appellants under Section
302/34 of Indian Penal Code and sentenced them to undergo
imprisonment for life for the offence under Section 302 of the IPC.
29. This Court before considering the argument advanced on behalf of the
parties is now proceeding to consider the deposition of witnesses, as per
the testimony as recorded by learned trial Court.
30. It is evident from record that in order to substantiate the case, the
prosecution had examined 7 witnesses and they were PW.1 Lajrus Kindo,
P.W.2 Milanus Kerketta, P.W.3 Margret Kerketta (informant). P.W.4
Imil Kispota. P.W.5 Dr. Krishna Deo Chaudhary, P.W.6 Babandeo
Mishra (I.O.) and P.W.7 Falinder Nayak (formal).
31. The P.W.1 and P.W.2 are the witnesses of the seizure list whereas the
P.W.1 further stood as a witness of inquest (Ext.4) made for the dead
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body of the deceased. The P.W.3 Margret Kerketta is the informant and
the wife of the deceased. The P.W.4 is a witness to the inquest report
(Ext.4), the P.W.5 is the doctor who conducted the postmortem
examination on the dead body of the deceased and the P.W.6 is the
Investigating Officer (I.O.) of the case.
32. It needs to refer herein that out of the material witnesses examined, PW-
4 who is witness of the inquest report had been declared hostile by the
prosecution.
33. The P.W.3 Margret Kerketta is the informant and the wife of the
deceased. In the fardbeyan (Ext. 3) the informant alleged that Kuwar
Lakra (now dead) brought a Kulhari (axe) from his house and he
assaulted her husband with the axe on his face, head and ear. He further
alleged that when she tried to save the life of her husband, she was
assaulted with axe by the accused Kuwar Lakra. She has further alleged
in the FIR that no other house situated near the house of the deceased and
this was why no one could reach to the place of occurrence when she
made hulla.
34. The P.W.3 Margret Kerketta in her testimony has stated that her goat had
given birth to a kid, the accused Anjulas, Kuwar, Patras and Isdor came
and they took her husband near to their house after dragging, due to which
her husband fell down. In paragraph 2 of her testimony, she had stated
that the accused Anjulas, Patras and Isdor all asked the accused Kuwar to
bring Tangi. She had further testified that thereafter 7-8 blows of Tangi
were given to the deceased, (the witness indicated the portion of head)
where the Tangi blows were inflicted on the person of the deceased.
Blood started coming out. She tried to save the life of her husband. She
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made hulla. The accused Patras caused assault by means of Lathi on her
hand. Thereafter the deceased had died on spot.
35. She had further stated that Police came at the place of occurrence, and
she gave her fardbeyan. The police read over her fardbeyan and then she
put her left thumb impression (LTI) upon the same. She had further
testified that no one had come to the place of occurrence.
36. She further stated in her cross-examination that the accused Kuwar, Isdor
and Anjulas Lakra were her ‘Dever’, whereas the accused Patras Lakra
happens to be her father-in-law.
37. In cross examination she had further deposed that the distance of her
house from the house of the accused persons was at a distance of 200
yards. Her house was towards East from the house of the accused persons.
Her village contains one Baggi Toli, one Imil Kispota (P.W.4) was
known to her. She has further stated that the accused persons came to her
house at about 4 P.M. and they immediately took her husband to their
house. At that time the deceased was in the Dalan (court-yard) was along
with him.
38. At para 9 She had further testified in her cross-examination that accused
persons were armed with Lathi, Balua etc. and Kuwar Lakra was armed
with Tangi, Patras armed with Lathi, the accused Isdor Lakra was empty
hand. Accused Anjulus Lakra was dragging the deceased. The deceased
was not making any hulla. All four accused persons dragged the deceased
to their house. The deceased was dragged after catching hold of his feet
while one hand was being caught hold by the accused Anjulus Lakra and
other was by the accused Kuwar lakra.
39. She had further deposed that it took an hour in taking the deceased from
the house of the Informant to the house of the accused persons and, she
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saw the occurrence with her own eyes. The accused Anjulus Lakra first
abeted to cause assault and thereafter assault started. First blow of Tangi
was given on head and 7-8 blows of Tangi were given to the deceased on
his head and continuous assault was a given to the deceased. She further
testified that she had raised no hulla nor the deceased raised the hulla.
She was trying to save the life of the deceased but when he tried to save
the deceased she was assaulted by Tangi and the accused Patras Lakra
gave a lathi blow on her head.
40. She further testified that she had gone to Chaukidar whose house was at
a distance of one mile. She met with Chaukidar then Chaukidar came to
her house. She stayed in house during night and she gave her fard-beyan
on the next day at about 10/11 A.M at the place of occurrence. She had
further testified that She had shown the blood-stained Saris the blood
fallen on the place of occurrence and he also showed the injury sustained
on her hand.
41. P.W.5 doctor Krishna Deo Chaudhary has conducted post-mortem on the
deceased body and found the following anti-mortem injuries-
i) Incised wound 272″x2″x1″over the right side of
ii) Incised wound 1/2″x1″x2″over left side of fore-head with
fracture of underlying bone.
iii) Incised wound 1″x3/4″x1″over the left maxillary region with
fracture of left side of maxilla.
iv) Incised wound 2″x1/2″x1/2″on the base of nose with fracture
of underlying bone.
v) Incised wound 2″x1″x1″over the right mandibular region with
fracture of underlying bone.
vi) Incised wound 1″x2″x1″ over the back of head with fracture
of occipital bone.
42. This witness has further stated that on dissection it was found that there
were multiple fractures of bones of skull, meninges were torn massively,
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with complete disorganisation of brain matter. Brain matter had come out
from many fractured sides. There was intra-cerebral hemorrhage also.
43. According to the opinion of the P.W.5. all the injuries were caused by
any sharp cutting weapon like an axe. All the injuries were grievous in
nature and the time elapsed since death was within 24 hours.
44. In cross examination he had deposed that if one man is dragged up to a
distance of 50-60 yards by his legs this would produce injuries on his
back, hand, waist, head, elbow etc.
45. P.W.1 Lajrus Kindo is a witness to the inquest report as well as seizure
of tangi and other articles.
In cross examination this witness has stated at para 6 that the tangi
was lying beside the dead body. At para 11 he has stated that he had not
given his statement that Kuwar Lakra has confessed his guilt.
46. P.W.2 Malanious Lakra this is the brother of the informant. This witness
is a seizure witness of blood-stained clothes, soil, and also tangi.
47. P.W.-6 Baband Deo Mishra is the Investigating Officer of the case. At
para 4, he has stated that he recovered a tangi from the house of Kuwar
Lakra. At para 9 of his testimony he has stated that the seized tangi is not
produced in court. At para 10, he has stated that from house Kuwar Lakra
brought and produced a tangi before him. At para 11, he has stated that
the informant did not produce the blood-stained sari. In the same
paragraph, he has also stated that the informant has not stated that Anjlus
Patras and Isdor asked Kuwar to bring tangi.
48. P.W.-7 Falida Nayak is the formal witness.
49. Learned trial Court, based upon the testimony of solitary eye witness and
other witnesses, referred hereinabove, has passed the judgment of
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conviction convicting the appellants under Section 302/34 of Indian
Penal Code and sentenced them to undergo R.I. for life.
50. In the backdrop of the aforesaid discussion of testimonies of the
witnesses, this Court in the instant case is to consider following issues:
(i) Whether the material as has come in course of trial is
sufficient to attract the offence committed under Section
302 read with Section 34 of the Indian Penal Code?
(ii) Whether the only sole testimony of an eyewitness is
sufficient enough to prove the alleged charges against the
appellants beyond all reasonable doubt.
(iii) Whether the appellants are entitled for acquittal in absence
of other cogent evidences other than the testimony of
solitary eye-witness?
51. Since all the aforesaid issues are inextricably interlinked, the same are
being decided hereinbelow by considering them together.
52. This Court, in order to appreciate the submissions advanced on behalf of
the appellants with respect to the culpability of the appellants, of
commission of offence under Section 302 read with Section 34 of the
Indian Penal Code vis-à-vis the evidences adduced on behalf of the
parties, and further answering the issues as referred hereinabove, deems
it fit and proper to discuss settled position of law which has been by
settled by the Hon’ble Apex Court.
53. The learned counsel has contended that the learned trial Court even in
absence of corroboration of the testimony of P.W.3 who is self-
proclaimed sole eyewitness has convicted the appellants which is bad in
eyes of law.
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54. In the aforesaid context it is settled proposition of law that the judgment
of conviction can be passed on the basis of the testimony of sole
eyewitness but the testimony of said witness should be trustworthy and
inspire confidence in the mind of the Court.
55. Further, 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. In fact, it is not the number, the quantity, but
the quality that is material. The time-honoured principle is that evidence
has to be weighed and not counted. The test is whether the evidence has
a ring of truth, is cogent, credible and trustworthy, or otherwise, reference
in this regard may be taken by the judgment rendered by Hon’ble Apex
Court in the case of Bipin Kumar Mondal v. State of W.B., (2010) 12
SCC 91 paragraphs 30 to 34 of the said judgment are being referred
hereunder as
:”30. Shri Bagga has also submitted that there was sole testimony of
Sujit Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8, could
be treated merely as hearsay. The same cannot be relied upon for
conviction.
31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court
repelled a similar submission observing that: (SCC p. 371, para 9)
“9. … as a general rule the court can and may act on the testimony of a
single witness provided he is wholly reliable. There is no legal
impediment in convicting a person on the sole testimony of a single
witness. That is the logic of Section 134 of the Evidence Act, 1872. But,
if there are doubts about the testimony the courts will insist on
corroboration.”
In fact, it is not the number, the quantity, but the quality that is material.
The time-honoured principle is that evidence has to be weighed and not
counted. The test is whether the evidence has a ring of truth, is cogent,
credible and trustworthy, or otherwise.
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32. In Namdeo v. State of Maharashtra this Court reiterated the
similar view observing that it is the quality and not the quantity of
evidence which is necessary for proving or disproving a fact. The legal
system has laid emphasis on value, weight and quality of evidence
rather than on quantity, multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to fully and completely rely on a
solitary witness and record conviction. Conversely, it may acquit the
accused in spite of testimony of several witnesses if it is not satisfied
about the quality of evidence.
33. In Kunju v. State of T.N., a similar view has been reiterated placing
reliance on various earlier judgments of this Court including Jagdish
Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras.
34. Thus, in view of the above, the bald contention made by Shri Bagga
that no conviction can be recorded in case of a solitary eyewitness has
no force and is negatived accordingly.”
56. Likewise, the Hon’ble Apex Court in the case of Kuriya and another vs.
State of Rajasthan, (2012) 10 SCC 433 has held as under: –
” 33. —The Court has stated the principle that, as a general rule,
the Court can and may act on the testimony of a single eyewitness
provided he is wholly reliable and base the conviction on the testimony
of such sole eyewitness. There is no legal impediment in convicting a
person on the sole testimony of a single witness.”
57. The Hon’ble Apex Court in the case of Kalu @ Amit vs. State of Haryana,
(2012) 8 SCC 34 held as under:-
“11. We find no infirmity in the judgment of the High Court which has
rightly affirmed the trial court’s view. It is true that the accused have
managed to win over the complainant PW 4 Karambir Yadav, but the
evidence of PW 5 Ram Chander Yadav bears out the prosecution case.
It is well settled that conviction can be based on the evidence of a sole
eyewitness if his evidence inspires confidence. This witness has
meticulously narrated the incident and supported the prosecution case.
We find him to be a reliable witness.”
58. The Hon’ble Apex Court in case of Sheelam Ramesh v. State of A.P.,
(1999) 8 SCC 369 in Para -18 held as follows:-
“18. According to learned counsel for the accused appellants, though
PW 3 has deposed that 10-15 persons were in the vicinity at the time of17
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There is nothing on evidence to show that there was any other
eyewitness to the occurrence. Having examined all the eyewitnesses
even if other persons present nearby were not examined, the evidence
of the eyewitnesses cannot be discarded. Courts are concerned with
quality and not with quantity of evidence and in a criminal trial,
conviction can be based on the sole evidence of a witness if it inspires
confidence.”
59. It is thus evident from the aforesaid settled position of law that the
judgment of conviction can be passed on the basis of the testimony of
sole eyewitness but if there are doubts about the testimony of the such
sole eyewitness, the courts will insist on corroboration and the test is
whether the evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.
60. At this juncture this Court thinks fit to revisit the testimony of the
witnesses particularly the sole eyewitness P.W.3, in the backdrop of
aforesaid settled legal proposition.
61. The informant who has been examined as P.W.3 had stated in her
fardbeyan that they asked the deceased to return the kid of the goat which
was lifted by the informant from their house. On not acceding the said
demand, the accused persons forcibly took the deceased in front of their
house. The accused persons laid down deceased on the ground and
thereafter the accused Kuwar Lakra went to his house and came being
armed with an axe and he thereafter on the instigation of the other accused
persons started giving axe blows on the person of the deceased. All blows
were hit on head or near head. When the informant tried to save the life
of her husband she was assaulted with axe by the accused Kuwar Lakra
and the accused Patras Lakra caused assault on the person of the
informant by means of Lathi. The deceased succumbed to injury on spot
and the accused persons thereafter fled away.
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62. Thus, it is evident from the fardbeyan of the informant that accused
Kuwar Lakra (now dead) went to his house and came being armed with
an axe and thereafter on the instigation of the other accused persons he
had started giving axe blows on the person of the deceased due to which
informant’s husband died on spot.
63. But the informant P.W.3 in her cross-examination at para-9 had stated
that accused persons were armed with Lathi, Balua etc. and Kuwar Lakra
was armed with Tangi, Patras armed with Lathi, the accused Isdor Lakra
was empty hand.
64. Thus, there is contradiction in her statement as she had stated in
fardbeyan as well as in the examination-in-chief that accused Kuwar
Lakra (now dead) went to his house and came being armed with an axe
and thereafter on the instigation of the other accused persons he had
started giving axe blows on the person of the deceased but at the same
time she had stated at para-9 that accused persons already armed with
different weapons like Axe, Baluwa and lathi etc.
65. However, in the aforesaid context this court is conscious with the settled
position of law that minor discrepancy cannot vitiate the prosecution
story, as has been held by Hon’ble Apex Court in the case of Bharwada
Bhoginbhai Hirjibhai Vs. State of Gujrat [(1983) 3 SCC 217], in
particular at paragraph nos. 5 which reads as under:
“5. …The finding of guilt recorded by the Sessions Court as affirmed by
the High Court has been challenged mainly on the basis of minor
discrepancies in the evidence. We do not consider it appropriate or
permissible to enter upon a reappraisal or reappreciation of the
evidence in the context of the minor discrepancies painstakingly
highlighted by learned Counsel for the appellant. Overmuch
importance cannot be attached to minor discrepancies. The reasons are
obvious : “(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is not19
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:10484-DBas if a video tape is replayed on the mental screen. (2) Ordinarily it so
happens that a witness is overtaken by events. The witness could not
have anticipated the occurrence which so often has an element of
surprised. The mental faculties therefore cannot be expected to be
attuned to absorb the details.(3) The powers of observation differ from
person to person.What one may notice, another may not. An object or
movement might emboss its image on one person’s mind, whereas it
might go unnoticed on the part of another.(4) By and large people
cannot accurately recall a conversation and reproduce the very words
used by them or heard by them. They can only recall the main purport
of the conversation. It is unrealistic to expect a witness to be a human
tape-recorder. (5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their estimates by
guess- work on the spur of the moment at the time of interrogation. And
one cannot expect people to make very precise or reliable estimates in
such matters. Again, it depends on the timesense of individuals which
varies from person to person. (6) Ordinarily a witness cannot be
expected to recall accurately the sequence of events which takes place
in rapid succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.(7) A witness, though
wholly truthful, is liable to be overawed by the court atmosphere and
the piercing cross-examination made by counsel and out of nervousness
mix up facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The subconscious
mind of the witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is giving a
truthful and honest account of the occurrence witnessed by him —
Perhaps it is a sort of a psychological defence mechanism activated on
the spur of the moment.”
66. Further the Hon’ble Apex Court has reiterated the same view in the case
of Mukesh Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC
694, wherein, at paragraph-8, it has been held as under:
“8. While the slight difference in the initial version of the prosecution
and the FIR version has been reasonably explained by the cross-
examination of PW 6, it is our considered view that minor
discrepancies, embellishments and contradictions in the evidence of the
eyewitnesses do not destroy the essential fabric of the prosecution case,
the core of which remains unaffected. Even if we have to assume that
there are certain unnatural features in the evidence of the eyewitnesses
the same can be reasonably explained on an accepted proposition of20
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:10484-DBlaw that different persons would react to the same situation in different
manner and there can be no uniform or accepted code of conduct to
judge the correctness of the conduct of the prosecution witnesses i.e.
PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and
the deceased, in our considered view, by itself, would not discredit the
testimony of the said witnesses. There is nothing in the evidence of PWs
1 and 2 which makes their version unworthy of acceptance and their
testimony remains unshaken in the elaborate cross- examination
undertaken.”
67. Thus, from the aforesaid proposition of law it is evident that minor
discrepancies, embellishments and contradictions in the evidence of the
eyewitness do not destroy the essential fabric of the prosecution case, the
core of which remains unaffected.
68. But at the same time, it is equally settled that the discrepancies which go
to the root of the matter and shake the basic version of the witnesses that
can be annexed with due importance. More so when there is need of
corroboration of the testimony of eyewitness from other available
evidences.
69. In the backdrop of aforesaid settled position of law this Court is again
adverting to the testimony of sole eyewitness P.W.3. and has found that
there is major contradiction in the testimony of the sole eyewitness as she
had stated that accused Kuwar Lakra (now dead) went to his house and
came being armed with an axe and thereafter on the instigation of the
other accused persons he had started giving axe blows on the person of
the deceased but at the same time she had stated at para-9 that accused
persons already armed with different weapons like Axe, Baluwa and lathi
etc.
70. Further she had stated in fardbeyan as well as in testimony that these
appellants dragged the deceased from her house to their house but in the
medical examination report of the deceased it is nowhere mentioned that
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:10484-DB
the deceased had any bruise or injury on his back, hand, elbow etc. thus
on this score also her statement has not been substantiated by the medical
evidence.
71. Thus at this juncture in the backdrop of the aforesaid facts the question
arises herein that whether the section 34 will be applicable herein or not
reason being that informant had stated that accused Kuwar lakra had
been instigated by the other accused persons and the said Kuwar Lakra
had taken the Axe from his house but at the same time in cross
examination she had stated that accused persons had already come at her
place armed with weapon like Tangi.
72. It needs to refer herein the core of Section 34 IPC which is nothing but
rule of evidence provides that:
“34. Acts done by several persons in furtherance of common
intention.–When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him alone.”
73. Thus, it is evident that Section 34 is only a rule of evidence and does not
create a substantive offence. It needs to refer herein that the common
intention is a state of mind. It is not possible to read a person’s mind and
there can hardly be direct evidence of common intention. The existence
or non-existence of a common intention amongst the accused has to be
deciphered cumulatively from their conduct and behaviour in the facts
and circumstances of each case. Events prior to the occurrence as also
after, and during the occurrence, are all relevant to deduce if there existed
any common intention. There can be no straitjacket formula.
74. Though judicial precedents with regard to common intention stand well
entrenched, it will be sufficient to refer the judgment rendered by the
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:10484-DB
Hon’ble Apex Court in the case of State of Rajasthan v. Shobha
Ram (2013) 14 SCC 732, wherein it has been observed as follows :
“10. Insofar as common intention is concerned, it is a state of mind of
an accused which can be inferred objectively from his conduct
displayed in the course of commission of crime and also from prior and
subsequent attendant circumstances. As observed in Hari Ram v. State
of U.P. [Hari Ram v. State of U.P., (2004) 8 SCC 146 : 2005 SCC (Cri)
321] (SCC p. 622, para 21), the existence of direct proof of common
intention is seldom available and, therefore, such intention can only be
inferred from the circumstances appearing from the proved facts of the
case and the proved circumstances. Therefore, in order to bring home
the charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or
meeting of mind of all the accused persons to commit the offence before
a person can be vicariously convicted for the act of the other.”
75. Further, the burden lies on the prosecution to prove that actual
participation of more than one person for commission of criminal act was
done in furtherance of common intention of all at a prior concert.
However, it is not required for the prosecution to establish that there was
a prior conspiracy or premeditation; common intention can be found in
the course of occurrence.
76. The classic statement of law is to be found in the case of
Pandurang v. State of Hyderabad AIR 1955 SC 216 wherein the
Hon’ble Apex Court has observed as under:
“32. … It requires a pre-arranged plan because before a man can be
vicariously convicted for the criminal act of another, the act must have
been done in furtherance of the common intention of them all: Mahbub
Shah v. King Emperor [(1944-45) 72 IA 148] (IA pp. 153-54).
Accordingly there must have been a prior meeting of minds. Several
persons can simultaneously attack a man and each can have the same
intention, namely, the intention to kill, and each can individually inflict
a separate fatal blow and yet none would have the common intention
required by the section because there was no prior meeting of minds to
form a pre-arranged plan. In a case like that, each would be
individually liable for whatever injury he caused but none could be
vicariously convicted for the act of any of the others; and if the
23
2025:JHHC:10484-DB
:10484-DBprosecution cannot prove that his separate blow was a fatal one he
cannot be convicted of the murder however clearly an intention to kill
could be proved in his case: Barendra Kumar Ghosh v. King
Emperor [(1924-25) 52 IA 40 : AIR 1925 PC 1] (IA p. 49) and Mahbub
Shah v. King Emperor [(1944-45) 72 IA 148] . As Their Lordships say
in the latter case (Mahbub Shah case [(1944-45) 72 IA 148] , IA p. 154),
‘the partition which divides “their bounds” is often very thin;
nevertheless, the distinction is real and substantial, and if overlooked
will result in miscarriage of justice’.
33. The plan need not be elaborate, nor is a long interval of time
required. It could arise and be formed suddenly, as for example when
one man calls on bystanders to help him kill a given individual and they,
either by their words or their acts, indicate their assent to him and join
him in the assault. There is then the necessary meeting of the minds.
There is a pre-arranged plan however hastily formed and rudely
conceived. But pre-arrangement there must be and premeditated
concert. It is not enough, as in the latter Privy Council case, to have the
same intention independently of each other e.g. the intention to rescue
another and, if necessary, to kill those who oppose.”
77. In the case of Hardev Singh v. State of Punjab (1975) 3 SCC 731 the
Hon’ble Apex Court has observed that the common intention must be to
commit the particular crime, although the actual crime may be committed
by any one sharing the common intention. Then only others can be held
to be guilty.
78. To apply Section 34 apart from the fact that there should be two or more
accused, two factors must be established: (i) common intention, and (ii)
participation of the accused in the commission of an offence. If common
intention is proved but no overt act is attributed to the individual accused,
Section 34 will be attracted as essentially it involves vicarious liability.
But if participation of the accused in the crime is proved and common
intention is absent, Section 34 cannot be invoked reference in this regard
may be taken from the judgment rendered by the Hon’ble Apex Court in
the case of Jai Bhagwan v. State of Haryana (1999) 3 SCC 102.
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:10484-DB
79. As held by the Constitution Bench of the Hon’ble Apex Court in Mohan
Singh v. State of Punjab AIR 1963 SC 174, common intention denotes
action in concert, and a prior meeting of minds–the acts may be
different, and may vary in their character, but they are all actuated by the
same common intention. However, prior concert in the sense of a distinct
previous plan is not necessary to be proved. The common intention to
bring about a particular result may well develop on the spot as between a
number of persons. Thus, the question as to whether there is any common
intention or not depends upon the inference to be drawn from the proven
facts and circumstances of each case. The totality of the circumstances
must be taken into consideration in arriving at the conclusion whether the
accused persons had the common intention to commit the offence with
which they could be convicted.
80. Under the provisions of Section 34 the essence of the liability is to be
found in the existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such intention. As
a result of the application of principles enunciated in Section 34, when an
accused is convicted under Section 302 read with Section 34, in law it
means that the accused is liable for the act which caused death of the
deceased in the same manner as if it was done by him alone. The
provision is intended to meet a case in which it may be difficult to
distinguish between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part
was taken by each of them.
81. Thus, from the aforesaid settled position of law it is evident that Section
34 has been enacted on the principle of joint liability in the doing of a
criminal act. The section is only a rule of evidence and does not create a
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:10484-DB
substantive offence. The distinctive feature of the section is the element
of participation in action. The liability of one person for an offence
committed by another in the course of criminal act perpetrated by several
persons arises under Section 34 if such criminal act is done in furtherance
of a common intention of the persons who join in committing the crime.
Direct proof of common intention is seldom available and, therefore, such
intention can only be inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
82. In order to bring home the charge of common intention, the prosecution
has to establish by evidence, whether direct or circumstantial, that there
was plan or meeting of minds of all the accused persons to commit the
offence for which they are charged with the aid of Section 34, be it
prearranged or on the spur of the moment; but it must necessarily be
before the commission of the crime.
83. The true contents of the section are that if two or more persons
intentionally do an act jointly, the position in law is just the same as if
each of them has done it individually by himself. The existence of a
common intention amongst the participants in a crime is the essential
element for application of this section. It is not necessary that the acts of
the several persons charged with commission of an offence jointly must
be the same or identically similar. The acts may be different in character,
but must have been actuated by one and the same common intention in
order to attract the provision.
84. The instant case must be assessed in terms of the above legal settled legal
position.
85. Looking to the facts and circumstances at hand, admittedly herein the
only eyewitness is P.W.3 who is the informant and wife of the deceased.
26
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:10484-DB
As discussed hereinabove there is major contradiction in her
examination-in-chief vis-vis her cross-examination. Further the doctor
has not found any injury of dragging on the body of deceased, therefore
the testimony of the informant at the extent that all accused person before
killing of the deceased had jointly dragged the deceased at their place,
is doubtful and not corroborated by any other evidences. Further in her
testimony she had not specifically stated any overt act against the
appellants but she had specifically stated about the culpability of the co-
accused Kuwar Lakra.
86. She had specifically stated that Kuwar lakra (now dead) was the person
who assaulted the deceased with an axe by 7-8 times and this fact is
substantially corroborated by the testimony of the doctor (P.W.5) who
had conducted post-mortem on the deceased body wherein he had found
that the nature of injuries having been caused by sharp cutting weapon as
all the descripted injuries were in nature of incised wound. This witness
has only stated against other accused persons (appellants herein) that they
were instigating the accused Kuwar Lakra to assault the deceased and she
has not stated any overt act against the appellant. But the Investigating
officer has specifically stated that the informant has not stated to him that
Anjlus Patras and Isdor asked Kuwar (now dead) to bring tangi, thus the
element of common intention is absent herein.
87. Thus, in these circumstances it cannot be said that the appellants herein
have acted in furtherance of common intention to attract constructive
liability under Section 34 IPC.
88. The facts and circumstances, in our view, do not give rise to an inference
of preconcert. We are satisfied that absolutely there is no material from
the side of the prosecution to show that the present appellants had any
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:10484-DB
common intention to eliminate the deceased. In the absence of common
intention, we are of the view that convicting the appellants with the aid
of Section 34 IPC cannot be sustained.
89. It is also settled proposition of law as discussed herein above that for
conviction of an offence read with Section 34 IPC, it is necessary that
there should be a finding as to the common intention of the participants.
Although the learned trial court has convicted the appellants under
Section 302 read with Section 34 IPC, the trial court has not recorded any
finding as to how the appellants shared the common intention to establish
their constructive liability to sustain the conviction under Section 302
read with Section 34 IPC.
90. This Court is of view that in the instant case there were individual acts
done without meeting of minds and, the appellants can be held liable only
for their individual acts. No such pre-arranged plan has been proved. It
has also not been proved that any criminal act has been done in concert
pursuant to the pre-arranged plan. Considering the totality of the
circumstances, conviction of the appellants under Section 302 read with
Section 34 IPC cannot be sustained.
91. In the backdrop of the aforesaid facts, we are of the considered opinion
that the prosecution has failed to prove any common intention on the
appellant’s part. We are of the opinion that the learned trial Court have
concluded against these appellants merely on assumptions and
conjectures and not on reliable evidence.
92. It has been contended by the learned counsel for the appellants that the
Chaukidar who was an important witness in this case has not been
examined by the prosecution because as per the statement of the
informant she at first informed the Chaukidar about the incident.
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:10484-DB
93. In the aforesaid context we have gone through the testimony of P.W.3
and found that she testified that she had gone to Chaukidar whose house
was at a distance of one mile and she met with Chaukidar then Chaukidar
came to her house.
94. Admittedly the said Chaukidar has not been examined as witness herein,
however the Court is conscious with the fact that it is settled position of
law that due to non-examination of independent witnesses, the
prosecution story will not vitiate in a case where the prosecution version
is being corroborated by eye-witness. Reference in this regard be made
to the judgment rendered in Sambhu Das v. State of Assam, (2010) 10
SCC 374 :
“38.In our opinion, it is not necessary for the prosecution to examine
every other witness cited by them in the charge-sheet. Mere non-
examination of some persons does not corrode the vitality of the
prosecution version, particularly, the witnesses examined have
withstood the cross-examination and pointed to the accused persons as
perpetrators of the crime. The trial court and the High Court have come
to the conclusion that the evidence of PW 1 is trustworthy and reliable.
We have also carefully perused the evidence of PW 1, whose evidence
is corroborated by PW 8 and the post-mortem report issued by PW 6,
we are convinced that the trial court and the High Court were justified
in believing the testimony of PW 1.”
95. Likewise, the Hon’ble Apex Court in the judgment rendered in Sarwan
Singh v. State of Punjab, (2003) 1 SCC 240 held as under:
“13. As regards the examination of independent persons or witnesses,
we would do well to note a decision of this Court in Ambika Prasad v.
State (Delhi Admn.5) wherein this Court in para 12 observed: (SCC
pp. 653-54)“12. It is next contended that despite the fact that 20 to 25 persons
collected at the spot at the time of the incident as deposed by the
prosecution witnesses, not a single independent witness has been
examined and, therefore, no reliance should be placed on the evidence
of PW 5 and PW 7. This submission also deserves to be rejected. It is
a known fact that independent persons are reluctant to be witnesses or
29
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:10484-DBto assist the investigation. Reasons are not far to seek. Firstly, in cases
where injured witnesses or the close relative of the deceased are under
constant threat and they dare not depose the truth before the court,
independent witnesses believe that their safety is not guaranteed. That
belief cannot be said to be without any substance. Another reason may
be the delay in recording the evidence of independent witnesses and
repeated adjournments in the court. In any case, if independent
persons are not willing to cooperate with the investigation, the
prosecution cannot be blamed and it cannot be a ground for rejecting
the evidence of injured witnesses. Dealing with a similar contention
in State of U.P. v. Anil Singh 6this Court observed: (SCC pp. 691-92,
para 15) ‘In some cases, the entire prosecution case is doubted for not
examining all witnesses to the occurrence. We have recently pointed
out the indifferent attitude of the public in the investigation of crimes.
The public are generally reluctant to come forward to depose before
the court. It is, therefore, not correct to reject the prosecution version
only on the ground that all witnesses to the occurrence have not been
examined. Nor it is proper to reject the case for want of corroboration
by independent witnesses if the case made out is otherwise true and
acceptable.’ “
14. The test of creditworthiness and acceptability in our view, ought
to be the guiding factors and if so the requirements as above, stand
answered in the affirmative, question of raising an eyebrow on
reliability of witness would be futile. The test is the credibility and
acceptability of the witnesses available — if they are so, the
prosecution should be able to prove the case with their assistance.”
96. Applying the above proposition to the facts of the present case, we find
that the evidence tendered by the eyewitnesses P.W.3 suffer from serious
contradiction, thus, their evidence cannot be said to be credible which has
already been discussed in the preceding paragraphs as such in these
circumstances the independent person like Chaukidar who was the to first
person to whom informant has stated the entire occurrence must have
been examined.
97. It needs to refer herein that the law is well settled that in the case of eye
witness, who, if supports the prosecution version, the conviction is to be
there, but the law is equally settled that it is the duty of the prosecution
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:10484-DB
to substantiate the charge said to be proved without any iota of doubt and
if there is any doubt, then the benefit of such doubt is to be given to the
accused person.
98. The Hon’ble Apex Court in catena of decision has propounded the
proposition that in the criminal trial, there cannot be any conviction if the
charge is not being proved beyond all reasonable doubts, as has been held
in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported
in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as
under:-
“22. The amount of doubt which the Court would entertain regarding
the complicity of the appellants in this case is much more than the level
of reasonable doubt. We are aware that acquitting the accused in a case
of this nature is not a matter of satisfaction for all concerned. At the
same time we remind ourselves of the time-tested rule that acquittal of
a guilty person should be preferred to conviction of an innocent person.
Unless the prosecution establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed on the accused. A
criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of certainty
that the appellants were the real culprits. We really entertain doubt
about the involvement of the appellants in the crime.”
99. Likewise, the Hon’ble Apex Court in the case of Krishnegowda & Ors.
Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has held at
paragraph-26 as under:-
“26. Having gone through the evidence of the prosecution witnesses and
the findings recorded by the High Court we feel that the High Court has
failed to understand the fact that the guilt of the accused has to be
proved beyond reasonable doubt and this is a classic case where at
each and every stage of the trial, there were lapses on the part of the
investigating agency and the evidence of the witnesses is not
trustworthy which can never be a basis for conviction. The basic
principle of criminal jurisprudence is that the accused is presumed to
be innocent until his guilt is proved beyond reasonable doubt.”
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:10484-DB
100. Further, it is the settled proposition of law that if the result of cross-
examination of prosecution witnesses, accused could establish the
probability of his defence and if probability was established by accused,
it would really entitle him to the benefit of doubt, reference in this regard
may be made to the judgment rendered by the Hon’ble Apex Court in the
case of Bhikam Saran Vrs. State of U.P., reported in (1953) 2 SCC 560,
wherein, at paragraph-16, it has been held as under:
“16. It is significant to observe that the appellant led no evidence in
defence but merely relied upon the evidence of the prosecution
witnesses in order to establish his defence. He had not to affirmatively
establish his defence in the manner in which the prosecution had to
establish its case. If as the result of his cross- examination of the
prosecution witnesses he could establish the probability of his defence
it was enough for his purposes, because if such a probability was
established by him it would really entitle him to the benefit of the doubt
insofar as such probability would prevent the prosecution case being
established beyond reasonable doubt.”
101. Further, the principle of ‘benefit of doubt’ belongs exclusively to criminal
jurisprudence. The pristine doctrine of ‘benefit of doubt’ can be invoked
when there is reasonable doubt regarding the guilt of the accused,
reference in this regard may be made to the judgment rendered by the
Hon’ble Apex Court in the case of State of Haryana Vrs. Bhagirath &
Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-
7 as under: –
“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of Bhagirath
particularly when the High Court found their evidence reliable. The
benefit of doubt was given to Bhagirath “as a matter of abundant
caution”. Unfortunately, the High Court did not point out the area
where there is such a doubt. Any restraint by way of abundant caution
need not be entangled with the concept of the benefit of doubt. Abundant
caution is always desirable in all spheres of human activity. But the
principle of benefit of doubt belongs exclusively to criminal
jurisprudence. The pristine doctrine of benefit of doubt can be invoked32
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:10484-DBwhen there is reasonable doubt regarding the guilt of the accused. It is
the reasonable doubt which a conscientious judicial mind entertains on
a conspectus of the entire evidence that the accused might not have
committed the offence, which affords the benefit to the accused at the
end of the criminal trial. Benefit of doubt is not a legal dosage to be
administered at every segment of the evidence, but an advantage to be
afforded to the accused at the final end after consideration of the entire
evidence, if the Judge conscientiously and reasonably entertains doubt
regarding the guilt of the accused.”
102. Likewise, the Hon’ble Apex Court in the case of Krishnegowda v. State
of Karnataka (Supra) at paragraph32 and 33 has held as under:-
“32. — — The minor variations and contradictions in the evidence of
the eyewitnesses will not tilt the benefit of doubt in favour of the accused
but when the contradictions in the evidence of the prosecution witnesses
proves to be fatal to the prosecution case then those contradictions go
to the root of the matter and in such cases the accused gets the benefit
of doubt. 33. It is the duty of the Court to consider the trustworthiness
of evidence on record. As said by Bentham, “witnesses are the eyes and
ears of justice.— –
103. It needs to refer herein that The Hon’ble Apex Court, in the case of
Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57
has laid down the principle that the golden thread which runs through the
web of administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view which is favourable
to the accused should be adopted, for reference, paragraph 6 thereof
requires to be referred herein which reads hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. –”
104. It needs to refer herein before laying down the aforesaid view, the
Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State
of Maharashtra reported in (1984) 4 SCC 116 has already laid down the
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:10484-DB
same view at paragraph 163 which is required to be referred which read
hereunder as
“163. We then pass on to another important point which seems to have
been completely missed by the High Court. It is well settled that where
on the evidence two possibilities are available or open, one which goes
in favour of the prosecution and the other which benefits an accused,
the accused is undoubtedly entitled to the benefit of doubt.—“
105. This Court, after having discussed the factual aspect and legal position
and considering the finding recorded by the learned trial Court, is of the
view that the learned trial Court has not properly appreciated the
testimony of sole eye witness (P.W.3) particularly in regard to major
contradictions regarding the applicability of Section 34 of the IPC which
has been referred and discussed hereinabove and has come to the
conclusion that the prosecution has been able to prove the charge beyond
all shadow of doubt against the present appellants, therefore, the
impugned order requires interference by this Court.
106. Accordingly, the impugned order of conviction dated 14th July 2003 and
Order of sentence dated 17th July 2003, passed by learned Session Judge,
Simdega, in Session Trial No.143 of 1993 arising out of Kurdeg PS Case
No.35 of 1992 is hereby quashed and set-aside in regard of the culpability
of the appellant, namely, Anjulas Lakra in Cr. Appeal (DB) No.1018 of
2003, and the appellant, namely, Isdor Lakra in Cr. Appeal (DB) No.1327
of 2003.
107. Consequently, the instant appeals being Cr. Appeal (DB) No.1018 of
2003 and Cr. Appeal (DB) No.1327 of 2003 stand allowed.
108. Accordingly, the appellant of Cr. Appeal (DB) No.1018 of 2003, namely,
Anjulas Lakra and the appellant of Cr. Appeal (DB) No.1327 of 2003,
namely, Isdor Lakra are hereby discharged from all criminal liabilities.
Since the aforesaid appellants are on Bail they are discharged from the
liability of the bail bonds.
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:10484-DB
109. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with the copy of this Judgment.
(Sujit Narayan Prasad, J.)
I agree.
(Sanjay Prasad, J.)
(Sanjay Prasad, J.)Jharkhand High Court, Ranchi
Dated:04/04/2025
Sudhir
A.F.R35
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