Vishwajeet Rai Vs State Of Chhattisgarh

(Cau	... Respondent se title taken from CIS)
For appellants in CRA 821/2014	No. : Mrs. Indira Tripathi, Advocate
For appellant in CRA 1161/2014	No. : Mrs. Fouzia Mirza, Senior Advocate appears along with Mr. Ali Afzal Mirza, Advocate
For Respondent/State	: Mr. Ajay Pandey, G.A.

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Division Bench

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Hon'ble Smt. Justice Rajani Dubey, J. &

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Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment

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Per, Amitendra Kishore Prasad, J.

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1. Since both the above-captioned appeals arise out of the same impugned judgment of conviction and order of sentence, they are being heard together and disposed of by this common judgment.

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2. In these appeals filed under Section 374(2) Cr.P.C., the appellants have challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 22.08.2014 passed by the Additional Sessions Judge, Fast Track Court, Mahasamund, C.G. in Sessions Trial No.92/2013, whereby and whereunder, the appellants stand convicted and sentenced as under:-

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Conviction		Sentence
Under Section 147 of Indian	Rigorous	Imprisonment for one
Penal Code(for short, ‘IPC’)	year
Under Section 302 read with	Imprisonm	ent for life and fine of
Section 149 of IPC	Rs.3,000/-	, in default of payment
	of fine	amount to undergo
	additional for two mo	rigorous imprisonment nths
Under Section 201 of IPC	Rigorous years and default of to underg	Imprisonment for five fine of Rs.2,000/-, in payment of fine amount o additional rigorous
	imprisonm	ent for one month

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(All sentences were directed to run concurrently)

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3. Case of the prosecution, in brief, is that on 11.06.2013, at about 10:00 p.m., near the FCI Godown, Bagbahara, the accused persons, forming an unlawful assembly with the common object of causing grievous hurt to Avinash Pandey, assaulted him with sticks, inflicting severe injuries which later led to his death. In order to conceal the offence, the accused persons allegedly lodged false information at Police Station Bagbahara, claiming that Avinash had met with a road accident. It is alleged that, on the date of the incident, Avinash Pandey and Mukesh Sharma were returning from Bagbahara when they were intercepted near the FCI Godown by the accused persons, namely Vishwajeet Rai, Sunny Rai, Sontu, Ravi Chandrakar, Ravi Khare, Manish Soni, and two employees of Vishwa Dhaba. The accused persons allegedly assaulted Avinash with sticks, due to which, Avinash

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sustained grievous injuries over his body, while Mukesh managed to escape. On the same night, a Rojnamcha Sanha was made at the police station and injured- Avinash was sent for medical examination where PW-5 Dr. L.L. Dhankar examined him and gave his MLC report vide Ex.P-5. Later, injured-Avinash’s statement was recorded, on the basis of which, FIR (Ex.P-19) was registered against the accused persons.

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4. During the course of investigation, a spot map (Ex.P-2) was prepared. Memorandum statements of accused- Tukesh alias Patwari and accused- Sunny Rai were recorded vide Exs. P-11 & 12, pursuant to which, two sticks made of Karra wood were recovered at their instance vide Exs. P-13 & P-14. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-33), no blood has been found on the seized wooden sticks marked as Articles ‘A & B’. During investigation, a white Maruti Alto car bearing registration No.CG-06E-0486 was also seized vide Ex. P-4. The statement of Mukesh Sharma, the companion and eye-witness to the incident was recorded before the Magistrate under Section 164 of the Cr.P.C. Further, in respect of the unnatural death of deceased- Avinash Pandey, a Merg Intimation (Ex.P-20) was recorded at Police Station Bagbahara and inquest proceedings were conducted vide Ex.P-3 and dead body of deceased was subjected to postmortem examination and PW-6 Dr. S.K. Bagh conducted the postmortem of the deceased

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and gave PM report vide Ex.P-7. According to him, cause of death of deceased was due to cardio-respiratory failure as a result of multiple injuries and their complications. After that, the statements of witnesses were recorded.

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5. After due investigation, appellants were charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which, appellants abjured their guilt and entered into defence by stating that they have not committed the offence.

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6. The prosecution in order to bring home the offence, examined as many as 14 witnesses in support of its case and exhibited 34 documents Exs.P-1 to P-34. However, the appellants in support of their defence have examined none, but exhibited 4 documents i.e. Exs.D-1 to D-4.

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7. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in paragraph-2 of this judgment, against which, they have preferred the instant appeals under Section 374(2) of the Cr.P.C.

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8. Learned counsel for the appellants respectfully would submit that the learned Trial Court has erred in convicting and sentencing the appellants for the aforesaid offences, in the absence of cogent, credible, and clinching evidence on record against them. They would further submit that the incident in question was, in

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fact, a road accident, and not a case of murder, as alleged by the prosecution. It is further submitted that the deceased, Avinash Pandey, was travelling as a pillion rider on a motorcycle driven by PW-1 Mukesh Sharma, when the vehicle met with an accident, resulting in serious injuries to the deceased. The appellants, including Vishwajit Rai, are alleged to have merely facilitated the transportation of the injured person to the hospital in Vishwajit Rai’s car. In support of this, a Rojnamcha Sanha (Ex. D/2) was duly prepared at the relevant time, clearly recording that the injuries were a result of a road accident. They would further submit that although the police allegedly recorded a statement of the deceased on 13.06.2013, wherein certain allegations were made against the appellants, but no FIR was registered on that date. The FIR was registered only after the death of the deceased, on 16.06.2013, which casts serious doubt on the veracity and timing of the prosecution’s case. They would also submit that the credibility of PW-1 Mukesh Sharma, who claims to be an eye-witness, is also seriously in question. Despite allegedly witnessing the assault on the deceased, he failed to lodge any report or complaint until after the death of the deceased. Notably, PW-1 was found to be in possession of the deceased’s mobile phone a fact not disclosed earlier and his statement under Section 161 CrPC was recorded belatedly, further affecting his reliability and credibility. Similarly, PW-2 (the father of the deceased) and PW-12 (the maternal uncle), who

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admittedly had knowledge of the incident as early as 12.06.2013 and were present during the inquest proceedings, did not raise any allegations or lodge any complaint at that stage. The FIR having been registered only on 16.06.2013, after the death of the deceased, renders the entire prosecution story highly doubtful. They would also submit that the appellants have been implicated merely on the basis that they transported the injured to the hospital. No direct allegations of assault were made by any prosecution witness including the deceased’s father and maternal uncle prior to the registration of the FIR. Moreover, the alleged oral dying declaration of the deceased, purportedly recorded by the police, is contrary to established legal norms and cannot be relied upon, as it suffers from procedural infirmities and lacks independent corroboration. In view of the above, it is most respectfully submitted that the judgment of conviction and the order of sentence passed by the learned Trial Court are unsustainable in law and deserve to be set aside. The appellants are, therefore, entitled to be acquitted of all charges levelled against them. Reliance has been placed upon the decisions of Supreme Court in the matters of Ganesh Bhavan Patel and another vs. State of Maharashtra reported in (1978) 4 SCC 371 & Narendrasinh Keshubhai Zala vs. State of Gujarat reported in (2023) 18 SCC 783.

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9. Learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the

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offence against the appellants and has proved the case beyond reasonable doubt and thus, the appellants have rightly been convicted and sentenced for the aforesaid offences.

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10. 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.

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11. Now, the question would be whether the appellants are the authors of the crime in question?

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12. In order to appreciate the arguments advanced by the parties, the testimony of PW-1 Mukesh Sharma, the sole eye-witness to the incident, assumes critical importance in the present case. A careful perusal of his deposition reveals that this witness was accompanying the deceased on a motorcycle at the time of the incident. He alleged that the accused persons, namely Vishwajit and others, intercepted them and began assaulting the deceased. Upon witnessing this, he claims to have fled the scene out of fear. He further stated that while fleeing, he heard the deceased crying out for help (“ bachao, bachao ”), but apart from hearing the cries, he neither intervened nor made any attempt to rescue the deceased or seek assistance. He also deposed that he went to Raipur the following day after being informed by his maternal uncle that the accused persons were searching for him. He claims to have visited the deceased in the hospital, where he allegedly heard the deceased say that the accused, including Vishwajit,

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were planning to throw him on the railway tracks. However, he also stated that at the time of this visit, the deceased was not in a condition to speak. During cross-examination, this witness admitted that his statement to the police under Section 161 Cr.P.C. was recorded only on 19.06.2013 and his statement under Section 164 Cr.P.C. was recorded the following day on 20.06.2013. He candidly admitted that from 11.06.2013 to 19.06.2013, he was hiding at his maternal uncle’s residence in Raipur, and did not approach the police or inform anyone about the incident during this period. From his cross-examination, it further emerges that cases and counter-cases were pending between him and Vishwajit, one of the accused, indicating previous animosity. He also admitted that he was in possession of the deceased’s mobile phone, which he did not return to the deceased or hand over to the police. Instead, he retained the phone, used it himself, and eventually handed it over to his advocate only after a month. He never disclosed this fact to the police or any other authority during the investigation. There are also glaring omissions in his account particularly regarding any alleged assault on the deceased after he was brought out of the Alto car. Although he claimed in Court to have narrated these details, but they are conspicuously absent from his earlier police statement under Section 161 Cr.P.C. He was unable to offer a satisfactory explanation for this material discrepancy. Furthermore, he admitted that he met the deceased on 12.06.2013, yet did not inform the police, the deceased’s father,

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or his maternal uncle about the alleged assault. Such conduct significantly diminishes the credibility of his version.

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13. In light of the above, the testimony of PW-1 Mukesh Sharma appears highly improbable, and is riddled with material omissions, contradictions, and inconsistencies. His version forms the backbone of the prosecution's case, yet it is clear that he cannot be regarded as a witness of sterling quality. It is a settled principle that while assessing the evidence of an eye-witness, the reliability and credibility of such a witness must be carefully scrutinized. If the testimony of the sole eye-witness is found to be doubtful or untrustworthy, it cannot form the sole basis for conviction, unless duly corroborated by other independent evidence.

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14. PW-2 Ashnarayan Panday is the father of the deceased. In his deposition, he stated that he was informed on 12.06.2013 about the admission of the deceased to the hospital and about his serious condition. He traveled from his native place, Uttar Pradesh, to District Hospital Mahasamund on 13.06.2013, where the deceased was undergoing treatment. He further stated that on the same day, the deceased orally informed him about the involvement of the accused persons in the incident. He also stated that from Mahasamund, he took the injured deceased to Raipur for further treatment, where the deceased succumbed to his injuries on 15.06.2013. During cross-examination, this witness admitted that despite knowing about the assailants, he did not inform the police

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or any other person about the matter. He explained this omission by stating that his mental condition was not good at that time.

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15. Another important witness is PW-12 Manoj Upadhyay, maternal uncle of deceased. From the evidence of this witness, it appears that he came to know about the incident on 12.06.2013 itself, when the deceased was being treated at District Hospital Mahasamund. The deceased was subsequently taken to Raipur for advanced treatment as his condition deteriorated. This witness further stated that he became aware of the involvement and complicity of the appellants as early as 12.06.2013. However, he did not disclose this fact to anyone. In paragraph 10 of his evidence, he admitted that he had not revealed this information to any person. In paragraph 17, the witness categorically stated that he, along with the father of the deceased, was present at the time of the inquest and the postmortem examination. Despite this, no information regarding the involvement of the appellants was disclosed. In paragraph 33 of his statement, the witness admitted that when he went to Bagbahra Police Station, the concerned T.I. informed him that the deceased had met with an accident and that investigation is ongoing to reveal the true facts of the case. Furthermore, in paragraph 43 of his evidence, the witness candidly admitted that from 12.06.2013 to 16.06.2013, no report was lodged by him, stating that since he was alone, he was fully engaged in the treatment of the deceased.

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16. Dr. PW-5 L.L. Dhankar, who conducted the Medical Legal Case (MLC) examination after the incident, stated that according to the MLC report (Ex.P-5), the deceased sustained injuries due to a motorcycle accident. During cross-examination, he further admitted that when the deceased was brought before him in an injured condition, he was conscious and in a fit state. However, apart from the cause of injury mentioned in the MLC form, the doctor did not record or mention any other details, including any involvement of the present appellants in the incident. Although other persons were present along with the deceased at the time of the examination, but no information regarding the appellants’ involvement was disclosed to the doctor. Being an independent medical professional, Dr. PW-5 L.L. Dhankar’s statement is credible and cannot be considered untrustworthy.

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17. PW-6 Dr. S.K. Bagh, who conducted the postmortem examination of the deceased, deposed that there were no injuries on the body of the deceased which were of such nature as to have incapacitated him from riding a vehicle. Additionally, from the testimony of the medical officer who conducted the MLC examination (PW-5 Dr. L.L. Dhankar), it appears that the deceased was found to have consumed alcohol at the time of examination, as indicated in the medical report. PW-14 Hari Ram Sahu, the Investigating Officer (I.O.), categorically admitted that the FIR was lodged on 16.06.2013. Prior to the registration of the FIR, the statement of the deceased was recorded under Section 161 CrPC

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by police officer Mohanlal. However, PW-14 Hariram Sahu admitted that no further inquiry or investigation was conducted on the basis of the statement made by the deceased. He did not take any immediate action to register an FIR or to apprehend the accused persons, despite the deceased being alive and allegedly naming the assailants.

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18. The Hon’ble Supreme Court in the matter of Ganesh Bhavan Patel (supra) has held in paras 39 to 46 which read as under:-

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“...39. We now come to the evidence of Welji Harkha (PW 3). The story told by him at the trial was that he was returning in his car, driven by himself, from the Municipal Garden on the Tilak Road, where he had gone, as usual, to hear a discourse on the Geeta. The witness was proceeding towards his office situated in Bhaveshwar Nagar, Building No. 3 in the third street, on Mahatma Gandhi Road. When he in his car came in front of the residence of Damji in Building No. 3, he heard Pramila shouting "Bachao Bachao". The witness stopped. By the time he stopped his car and alighted, Accused 1 ran away with a knife in hand, while Accused 2 was stabbing Damji with a knife. The witness went to Accused 2, caught him by his shirt and slapped him, but the accused managed to free himself and run away.

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40. As rightly pointed out by the trial court, the most glaring infirmity which vitiates Welji's evidence, was his unnatural conduct. Welji was the leader of the community of artisans that lived in this locality. Welji admitted that Damji was his childhood acquaintance. Since his childhood, the deceased had worked as an artisan or labourer for the witness in connection with the latter's

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business as a contractor. They knew each other in Pakistan where they were residing before their migration to India. But, on seeing the brutal assault on his childhood acquaintance, or friend, Welji left him bleeding profusely in the gutter. He did not even care to see whether Damji was dead or alive. He had a car with him. He did not suggest or offer his car for removal of Damji to the Hospital, nor did anything else to arrange for medical aid to the injured who, according to the other witnesses, was still alive. After seeing all this, he callously and nonchalantly drove away to his office, without having even a look at the dying man. According to the witness, on reaching his office he found there a number of his workmen and his son, Mohan. He did not inform any of those persons, not even his son, anything about the occurrence, much less did he ask his son or any of those persons present there to inform the police or to go and arrange for medical aid or other assistance to Damji and his relatives. He had a telephone in his office and also at his residence; yet, he did not give or cause to be given any information about the crime to the police. The explanation given by Welji for his indifferent and strange conduct was that he had got frightened and upset, and the persons present in his office had already come to know about the occurrence. The explanation was manifestly untenable and was, in our opinion, rightly repelled by the trial court. After the assailants had run away from the spot, there remained no cause for Welji to fear them. On the departure of the assailants, it was expected of him to have at least a glance at his childhood fellow to ascertain whether he was dead or alive. According to him, his office was nearby in the third street. This means, he reached his office only seconds

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after the incident. This being the case, the trial court very rightly remarked that the news about the assault could not have travelled faster than his car. Welji claims to be the leader of the labour community, who were inhabitants of that locality. The least which was expected from such a labour leader was, that he should arrange for the immediate removal of his injured fellow-man to the Hospital.

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41. We have, therefore, no hesitation in agreeing with the learned trial Judge that this strange conduct of the witness "comes in the way of accepting his story as true". 42. Apart from the fact that Welji's conduct was strange and inconsistent with the normal conduct of an eyewitness, and the inordinate delay in recording his statement by the police, his evidence suffers from other material flaws, also. In his statement before the police, Welji-did not specifically name Pramila (PW 2) as the person by whose shouts he was attracted to the scene of occurrence. In variance with what he stated at the trial, his version before the police was that he had heard "some ladies", (that means more than one person), shouting "Bachao Bachao". Admittedly, he knew Pramila's name prior to the occurrence. His version in the witness box that he was attracted to the spot on hearing the shouts of Pramila, was therefore, an improvement deliberately made to fit in the prosecution story at the trial.

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43. Again, Welji stated that when he caught hold of Accused 2, his pyjama got bloodstains up to a height of 5 or 6 inches. No such pyjama was produced before the police or even in the trial court. Questioned why he failed to do so, the witness stated that he did not want that the

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accused should be involved at his instance as both the accused and the victim were equal to him like his two eyes. This explanation was obviously unacceptable, because at the trial, he did appear as a witness for the prosecution and against the other party, that is, the accused.

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44. Another admitted circumstance which blemished the evidence of Welji, was that the father of Accused 2 was in the employ of the witness as a motor-driver for about seven or eight years. His services were dispensed with by the witness about 2 months prior to the occurrence on the ground of irregularity in service. The case put to him by the defence was that the father of Accused 2 had raised a dispute by demanding a higher pay.

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45. Last but not the least, Welji was admittedly operated upon for cataract, only a couple of months before the occurrence. His eye-sight was weak. He was old and infirm and a heart-patient. He was a Contractor and a man of means and had in his employment a motor- driver for 7 or 8 years. Moreover, his adult son who admittedly knew car -driving well, was available to drive the car for him. In these circumstances, the trial court's observation, to the effect, that it was most unlikely that this old man of 69 years with a weak eye-sight and a weak heart, would be driving his car himself at 7 p.m., when it was pretty dark, without there being any emergency, cannot be rejected out of hand.

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46. In sum, we find that the over-all view of the evidence taken by the trial court was reasonable. While it is true that some of the reasons given by the trial court, if taken individually, do not appear to be substantial or impeccable, but taken in their totality, they certainly

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render the evidence of the material prosecution witnesses unsafe to be acted upon…”

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19. Furthermore, the Hon’ble Supreme Court in the matter of Shahid

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Khan vs. State of Rajasthan reported in (2016) 4 SCC 96 has

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held as under:-

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“ 12. The prosecution case is that the appellants (Accused 2, 4 and 5) along with the other accused inflicted injuries with sword and knife to Ashok Kumar. During the trial PW 20 Lal Chand, PW 24 Mohammad Shakir and PW 25 Mirza Majid Beg were examined as having witnessed the occurrence. PW 20 Lal Chand did not support the prosecution case and was declared hostile.

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13. PW 25 Mirza Majid Beg in his testimony has stated that on 22-1-2001 he started from Kota at 10 o'clock and reached Jhalawar at about 12 o'clock in his Maruti van driven by his driver PW 24 Shakir and halted for 5-10 minutes in the Toll Post and then went to the factory of Ashok Kumar to meet him and on reaching there they heard the sound of crying and they got down from the vehicle and ran inside the factory and saw Accused 2 Banti and Accused Shahid Khan with daggers in their hands and Accused 5 Mansoor with gupti type weapon and all the accused were attacking Ashok Kumar with the said weapons. According to him he and his driver stood adjacent to the quarter wall inside the factory and saw the occurrence and thereafter they ran away from the said place to Toll Tax Post and boarded a tanker lorry and reached the hospital at Jhalawar and they found

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their Maruti vehicle parked in the hospital and they I drove from there directly to Kota in the said vehicle. 14. It is the testimony of PW 24 Mohamed Shakir that on 22-1-2001 he drove the Maruti van of PW 25 Mirza Majid Beg from Kota to Jhalawar and when they reached the factory of Ashok Kumar they heard the sound of crying and both of them got down and rushed inside the factory and saw the appellants and other accused attacking Ashok Kumar with knife and they ran to the backside of the factory and hid themselves near the wall and after 5-10 minutes they came out and went to the Toll Tax check post and by taking a lift in a truck they reached Jhalawar Hospital and on seeing their car there, both of them drove back to Kota.

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15. Both the above witnesses are residents of Kota which is at a distance of about 150 km from Jhalawar Town. According to PW 25 Mirza Majid Beg he went to Jhalawar to meet Ashok Kumar and on reaching the factory at 1:00 p.m. they happened to witness the occurrence.

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16. It is relevant to point out that PW 9 Anwar and PW 19 Anil Kumar Jain. who on intimation rushed to the occurrence place. did not state that they saw PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir in the occurrence place. It is only PW 19 Anil Kumar Jain with the help of PW 9 Anwar and PW 20 Lal Chand lifted injured Ashok Kumar and put in the Maruti vehicle and took him to b Jhalawar Hospital, where he was declared dead. Thereafter, PW 19 Anil Kumar Jain went to the police station and lodged the written complaint. In the said complaint, the names of the

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assailants are not mentioned and also the names of the persons who were present during the occurrence are not mentioned.

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17. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir have stated in their cross-examination that they did not help PW 9 Anwar and PW 19 Anil Kumar Jain to shift the injured to the hospital and they rushed towards Toll Tax Post and reached the hospital in a truck and on seeing their car, without entering the hospital, they drove to Kota and they did not inform anyone about the occurrence and they did not also go to the police station for lodging the complaint.

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18. The High Court in the impugned judgment has concluded that the presence of PW 25 Mirza Majid Beg is established in view of the fact that his Maruti van was used for shifting the injured to the hospital. There was nothing on record to show that the Maruti vehicle used for transporting Ashok Kumar to the hospital belonged to PW- 25 Mirza Majid Beg. In fact PW-19 Anil Kumar Jain in his cross-examination has stated that he did not know the registration e number of the Maruti van in which Ashok Kumar was taken to the hospital and he also did not know whose vehicle it was. In other words, nothing stood established by the use of this Maruti vehicle for transporting the injured to the hospital and in any event this will not clinch the presence of PW-25 Mirza Majid Beg at the time of occurrence. PW-25 Mirza Majid Beg and PW-24 Mohamed Shakir slipping away unnoticed by the others particularly after the f alleged attack is utterly unbelievable. It appears unreal. They are not strange to expect and they did not render any help for shifting

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the injured to the hospital nor had the courtesy to go inside the hospital to ascertain the condition and also did not inform the occurrence to the police. The aspect of fear is without any foundation and is not supported by any evidence of act or conduct. This plea g does not impress us.

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19. In this context, it is relevant to point out that PW25 Mirza Majid Beg has admitted that he is a historysheeter, and two cases under the NDPS Act were imposed on him and he was also bound down under Section 110 CrPC.

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20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming h as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses a to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby

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resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt. ”

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20. Also, the Hon’ble Supreme Court in the matter of Narendrasinh Keshubhai Zala (supra) has held in pars 8, 9 & 10 as under:-

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“8. It is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence (Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463). Only such evidence is admissible and acceptable as is permissible in accordance with law. In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. This Court in the case of Anil Phukan v. State of Assam, (1993) 3 SCC 282 has held that:

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"3.... So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect..."

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The same principle has been enunciated in: Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165.

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9. In the instant case when we examine the testimony of PW-3, we notice him to have deposed that on the fateful night ie. 13.1.2002, around 11 PM both he and the deceased were sitting on a Nala near the Circuit House in Surendranagar. At that time, accused came on a motorcycle with Shailendra as a pillion rider and after abusing, wanted Ram (deceased) to state as to when he would return the money borrowed by him. When the deceased stood up to answer, Narendra pulled out a pistol and after placing it on the neck, said, "... this would not take much time to finish you." Thereafter, accused fired the pistol. Resultantly, the deceased collapsed on the ground and started bleeding profusely from the neck. Immediately, Narendra Zala and Shailendra drove away towards the Sardar Society. PW-3 states that the incident left him shocked and stunned. He was so scared that he ran towards the society where he met his uncle Harshad Veljibhai (PW-9) and his friend Manish Natvarlal Trivedi (PW-8) whom he informed of the incident. Seeing his condition, he was asked by his uncle to go home and sleep. Next morning, he went to the house of Ram and narrated the incident to his mother and sister Heenaba Pradipsinh Zala (PW-2). Thereafter he went to the hospital and informed Ram's father (PW-1) of the incident. Police interrogated him at different places and recorded his statement on the 14th of January at around 4:30PM at the Police Headquarters. Cross examination part of his testimony reveals this witness to have repeatedly improvised his initial statement, disclosed to the Police. Illustratively he had not informed the Police of having disclosed the incident to the sister of the

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deceased. He had also not disclosed to the Police that there was exchange of words between Ram and Narendra (Appellant herein) in relation to some money owed by the deceased to the accused. This may not have any effect on the veracity of his statement. But what makes his testimony shaky and the witness unbelievable is his admission of the Police Headquarters being in close proximity to the place of occurrence of the incident and despite knowing that police is always posted at the gate he did not approach the police. The explanation furnished is only that he was "much scared", which prudently is not acceptable, given that he was a close friend of the Deceased.

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Further, his credit stands impeached in the crossexamination part of his testimony. The witness is an adult, mature and worldly wise. He is aged 24 years and runs a grocery shop. He is not illiterate, yet he chose to not take any action, even to save the life of his friend. His explanation that he went home and slept is uninspiring in confidence for the incident took place in his presence and in close proximity of habitation, more specifically at a short distance i.e. just 3-4 minutes of walking distance from the Police Headquarters where constables are posted around the clock. He left his friend profusely bleeding on the spot but did not seek any help and immediately did not report the incident to the family members of the deceased whose house he visited only the following day at around 8:00 - 9:00AM. His conduct of going off to sleep, having seen his friend being murdered right before his eyes and then not visiting the hospital forthwith is quite unnatural. Also he did not inform the incident to his parents. It was only when the police interrogated him that he named the accused. His

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testimony is not free from embellishments, nor is not corroborated by any other evidence. Also, he admits not to have any information of any monetary transactions between the accused and the deceased.

¶112

10. This Court on multiple occasions has held that it is not the quantity but the quality of witnesses and evidence that can either make or break the case of the prosecution. It is the duty of the prosecution to prove that the testimonies of the witnesses that it seeks to rely upon are of sterling quality, i.e. fully trustworthy and absolutely free from any kind of blemish. [Prahlad v. State of M.P. (supra); Amrik Singh v. State of Punjab, (2022) 9 SCC 402; Pramila v. State of U.P., (2021) 12 SCC 550; Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130].”

¶113

21. Now, reverting back to the present case in the light of aforesaid decisions of Supreme Court, it is evident from the evidence itself that the eye-witness to the incident, as well as other witnesses, have failed to act appropriately despite being aware of the identity of the assailants. Even after knowing the names of the accused persons, neither the eye-witness (PW-1 Mukesh Sharma) nor the other witnesses informed the police or lodged any FIR against the alleged assailants. The so-called eyewitness, PW-1 Mukesh Sharma, appears to be a fabricated or concocted witness. He portrays himself as an eyewitness to the incident; however, despite allegedly witnessing the occurrence, he neither informed the relatives of the deceased nor any other persons at the relevant

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time. Furthermore, he did not inform the police during the entire course of treatment of the deceased from 11.06.2013 to 16.06.2013. It was only after the death of the deceased on 15.06.2013 that PW-1 had his statement recorded under Section 161 of the Cr.P.C. on 19.06.2013, raising serious doubts about the credibility and genuineness of his testimony. Furthermore, PW-1 Mukesh Sharma was also in possession of the mobile phone of the deceased and was using the said mobile phone. However, this fact was never disclosed to the prosecution, police, or any family members. It appears that PW-1 harbors some grudge against the appellant- Vishwajit, and due to this animosity, he has falsely implicated the present appellants, including Vishwajit. That apart, from the evidence of the doctors, it is clear that on the first occasion when the deceased was brought to the hospital, the Medical Legal Case (MLC) report (Ex.P-5) categorically stated that the deceased had sustained injuries due to a motorcycle accident. PW-5 L.L. Dhankar, further stated that the deceased was in a fit and conscious condition at the time of examination. Apart from the accident, no other cause or allegation was mentioned. Both the father (PW-2) and maternal uncle (PW-12) were aware of the incident as early as 12 & 13.06.2013, yet they failed to disclose these facts to the police, the doctors, or any other persons. These witnesses admitted in their testimony that they had knowledge of the incident from 12.06.2013 and were present during the inquest proceedings where police officials were also present, yet they did

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not reveal any information regarding the involvement of the accused. The conduct of these witnesses seriously undermines the entire prosecution case. Having regard to the evidence adduced by these witnesses, the conviction cannot be sustained.

¶118

22. Now, coming to the question of the dying declaration in the form of the statement recorded under Section 161 CrPC, the police have stated that the dying declaration was recorded with the deceased’s thumb impression, as the deceased allegedly had injuries on his hand. However, the doctor has categorically stated that there was no injury on the hand of the deceased. It is pertinent to note that although the statement of the deceased was recorded under Section 161 Cr.P.C. while he was still alive, but such a statement does not ipso facto qualify as a dying declaration under Section 32(1) of the Indian Evidence Act, unless it was made in the contemplation of death and meets the legal requirements. A statement under Section 161 Cr.P.C. is not substantive evidence and can only be used for contradiction purposes, not as a dying declaration unless duly recorded in accordance with law. The Hon’ble Supreme Court has, in categorical terms, held that such dying declarations require both truthfulness and corroboration from independent evidence, which is conspicuously lacking in this case.

¶119

23. The Hon’ble Supreme Court in the matter of State of Uttar Pradesh vs. Veerpal and another reported in (2022) 4 SCC 741 , has held as under:-

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“16. Now, on the aspect, whether in the absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in Munnu Raja¹ and the subsequent decision in Paniben v. State of Gujarat² are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in State of U.P. v. Ram Sagar Yadav³ and Ramawati Devi v. State of Bihar⁴ , Therefore, there can be a conviction solely based upon the dying declaration without corroboration.

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17. Khushal Rao v. State of Bombay⁵ is a watershed judgment on the law on the evidentiary value of dying declarations. This Court laid down the following principles as to the circumstances under which a dying declaration may be accepted, without corroboration: (AIR pp. 28-29, para 16)

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"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion⁶ of the Full Bench of the Madras High

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1 Munnu Raja vs. State of M.P. (1976) 3 SCC 104 : 1976 SCC (Cri) 376

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2 (1992) 2 SCC 474 : 1992 SCC (Cri) 403

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3 (1985) 1 SCC 552 : 1985 SCC (Cri) 127

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4 (1983) 1 SCC 211 : 1983 SCC (Cri) 169

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5 1958 SCR 552 : AIR 1958 SC 22

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6 Guruswami Tevar, In re, 1939 SCC OnLine Mad 384

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Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of

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making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

¶134

24. It is well-settled law that oral dying declaration is a weak kind of evidence. In the matter of Darshana Devi v. State of Punjab reported in 1995 Supp (4) SCC 126 , with regard to oral dying declaration, their Lordships of the Supreme Court have held that an oral dying declaration can form basis of evidence in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence.

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25. Similarly, in the matter of Arun Bhanudas Pawar v. State of Maharashtra reported in (2008) 11 SCC 232 , it has been held by their Lordships of the Supreme Court that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.

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26. Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh v. State of Manipur reported in (2011) 13 SCC 125, has held that there can be no dispute that the dying declaration can be the sole basis for conviction, however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be

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in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence.

¶139

27. The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration.

¶140

28. Further, in the matter of Irfan @ Naka v. State of Uttar Pradesh, 2023 SCC Online SC 1060 , the Supreme Court has held that the dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind and observed in Para-63 as under:

¶141

“ 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough

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for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.”

¶144

29. Further, the Hon’ble Supreme Court in the matter of Raja Khan

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vs. State of Chhattisgarh reported in (2025) 3 SCC 314 has held as under:-

¶146

“28. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible. However, Section 27 is an exception to Sections 25 and 26.and serves as a proviso to both these sections [State (UT of Delhi) v. Bal Krishan].

¶147

29. This Court is of the view that Section 27 lifts the ban, though partially. to the admissibility of confessions. The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As such the statement whether confessional or not is allowed to be given in evidence but that portion only which distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the appellant-accused as to its existence (Udai Bhan v. State of U.P.5).

¶148

30. The essential ingredients of Section 27 of the Evidence Act are threefold:

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(i) The information given by the accused must lead to the discovery of the fact which is the direct outcome of such information.

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(ii) Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused.

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(iii) The discovery of the facts must relate to the commission of such offence.

¶153

31………... The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render-the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police…………….Thus, what is admissible being the Information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved………. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.”

¶154

30. Returning to the facts of the present case in the light of the aforesaid pronouncements of the Hon’ble Supreme Court, it becomes evident that the trial Court committed a serious error in placing reliance upon the alleged dying declaration purportedly made before the police, as well as the so-called oral dying declarations said to have been made before PW-1 Mukesh Sharma, PW-2 Ashnarayan Pandey and PW-12 Manoj Upadhyay. A careful scrutiny of the evidence of the medical officers (PW-5 & PW-6) and the investigating officer (PW-14) clearly demonstrates

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that the prosecution has failed to establish, beyond reasonable doubt, that the deceased was in a fit physical and mental condition to make any such statement. The inconsistencies and contradictions appearing in the depositions of the aforesaid witnesses further cast a serious doubt on the genuineness and voluntariness of the alleged dying declaration. It is well settled that a dying declaration, to form the sole basis of conviction, must inspire full confidence of the Court and must be free from any suspicion, doubt, or infirmity. However, in the present case, the alleged dying declaration suffer from material discrepancies and lack corroboration from independent and reliable evidence. The testimonies of PW-1 Mukesh Sharma, PW-2 Ashnarayan Pandey and PW-12 Manoj Upadhyay appear to be shaky and inconsistent with the medical and investigative evidence on record. The possibility of embellishment and concoction cannot, therefore, be ruled out. In such circumstances, it would be highly unsafe and legally impermissible to uphold a conviction solely on the basis of these doubtful and untrustworthy statements. The benefit of doubt, therefore, must necessarily enure to the accused.

¶157

31. Upon meticulous examination of the evidence presented, this Court finds that the prosecution has failed to establish the guilt of the appellants beyond a reasonable doubt. The Medical Legal Case (MLC) report (Ex. P-5) prepared at the time of the deceased's admission indicates that the injuries sustained were consistent with a motorcycle accident. PW-5, Dr. L.L. Dhankar,

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testified that the deceased was conscious and fit at the time of examination, and no allegations of assault were made. Additionally, the report noted that the deceased had consumed alcohol, which aligns with the medical findings and casts doubt on the prosecution's theory of intentional harm. Crucially, PW-6, Dr. S.K. Bagh, who conducted the postmortem examination (Ex. P-7), opined that the cause of death was cardio-respiratory failure due to multiple injuries and their complications. However, he explicitly stated that there were no injuries on the deceased's body that could have incapacitated him from riding a motorcycle. This testimony strongly supports the initial version of events, a road accident, rather than a deliberate assault. Furthermore, PW-2 (father) and PW-12 (maternal uncle) admitted to having knowledge of the incident as early as 12.06.2013 and 13.06.2013. Despite being present during the inquest proceedings and interacting with police officials, they failed to disclose any involvement of the appellants at that stage. Their omission to inform the authorities at the earliest opportunity raises significant doubts about the credibility of their subsequent statements. The Investigating Officer, PW-14 Hariram Sahu, also failed to take prompt action. Although the deceased allegedly named the assailants in a statement under Section 161 CrPC, no immediate steps were taken to register an FIR or apprehend the accused. The FIR was belatedly registered on 16.06.2013, and the I.O. did not conduct further inquiry based on the deceased's statement, undermining the prosecution's case.

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32. Particularly, considering the evidence of PW-6, Dr. S.K. Bagh, who conducted the postmortem examination (Ex. P-7), opined that the cause of death was cardio-respiratory failure due to multiple injuries and their complications. However, he clearly stated that there were no injuries on the body that could have incapacitated the deceased from riding a motorcycle, which further supports the initial version of a road accident.

¶162

33. In light of these inconsistencies, omissions, and the medical evidence, particularly the testimony of Dr. S.K. Bagh, the Court concludes that the prosecution has not proven its case beyond a reasonable doubt. Accordingly, the appellants are entitled to the benefit of doubt. Consequently, the appellants are entitled to acquittal of the charges leveled against them.

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34. In the result, both the appeals filed by the respective appellants are allowed and the impugned judgment of conviction and order of sentence is hereby set- aside. The appellants are acquitted of the aforesaid charges leveled against them.

¶164

35. The appellants are reported to be on bail. Keeping in view the provision of Section 437-A of CR.P.C., the appellants are directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- each with one surety each in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition

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against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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36. Registry is directed to transmit the trial Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance.

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Sd/- Sd/-

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(Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

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Vishakha

Vishwajeet Rai v. State Of Chhattisgarh

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Vishwajeet Rai v. State Of Chhattisgarh

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