Ashok Mahto And Ors. Vs State

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (D.B) No. 593 of 1998 (P)

( Against the judgment of conviction dated 28.11.1998 and the order of sentence dated 30.11.1998 passed by the learned 1^st Addl. Sessions Judge, Godda in Sessions Case No. 143 of 1997/192 of 1998)

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Ashok Mahto, son of Atbari Mahto resident of village-Murlidih, PSGodda (T), District-Godda.

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Rajendra Mahto, son of Raghunath Mahto, resident of villageSaharpura, PS-Godda (M), District-Godda, at present residing in villageMurlidih, PS-Godda (T), District-Godda. ....... … Appellants

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Versus

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The State of Bihar (now Jharkhand) … … Respondent

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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------For the Appellants : Mr. Abhishek Sharan, Advocate For the State : Mr. Pankaj Kumar, PP

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C.A.V on 02.07.2025 Pronounced on 01/08/2025

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Per Sujit Narayan Prasad, J.

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The instant appeal under section 374(2) of the Code of Criminal Procedure is directed against judgment of conviction dated 28.11.1998 and the order of sentence dated 30.11.1998 passed by the learned 1^st Addl. Sessions Judge, Godda in Sessions Trial Case No. 143 of 1997/192 of 1998 whereby and whereunder the appellants, above-named, have been convicted under sections 302/34 of the Indian Penal Code and sentenced to undergo RI for life under section 302/34 of the Indian Penal Code.

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At the outset, it needs to mention here that one of the appellants-

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co-convict, namely, Pradeep Mahto, had died during the pendency of the appeal. In this regard, a photo copy of the death certificate of Pradeep

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Kumar Mahto dated 06.05.2021 issued under the signature of Registrar (Birth & Death) Gram panchayat, Pandu Bathan has been produced by the learned Public Prosecutor. Let the same be taken on record. In view of the above, the present criminal appeal qua the appellant, namely, Pradeep Mahto stands abated.

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Factual Matrix

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The prosecution story in brief as per the allegation made in the fardbayan by Sarita Devi, the informant, reads as under:

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The prosecution case was instituted on the fardbayan of Sarita Devi (PW-10) recorded on 10.01.1997 at 12: 30 A.M. at night, at her house, who alleged that her husband was doing measurement of oil in the shop of Amar Tekriwal and was residing in his godown. Some time, he used to come to house in the night when there was no oil vehicle. On that day at 6 P.M., he came from hatia and in the night at 9:30 P.M., she slept with her husband alongwith her small child. Informant further stated that at about 10.30 P.M., in the night, one man pulled her chadar ( odhana ) and she woke-up and another man lit the torch and after seeing her husband, he told to kill him. He assaulted her husband with a small stick, then her husband woke-up and asked as to who he was. At this, another person who was dark skinned and was wearing full pant, fired bullet on the chest of her husband as a result her husband came out in the court-yard and fell down.

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It is further alleged that the other person who was flashing torch light was wearing white pyajama and was wrapped in shawal and was dark skinned. The informant raised halla and the said three persons fled away.

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Neighbours came and took out her husband from the house and were taking him on a thela to police station and hospital, but her husband died.

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In the fardbayan, informant further stated that her husband were four brothers and they have eight bigha of land in total and their share of land was being seen by Sita Mahto, who is the elder brother of her deceased husband. In the month of Jeth they had gone to demand their share, but he refused. The informant expressed that she is unable to say as to who and why killed her husband. She further stated that she can identify the persons because she had seen them in the light of torch and lantern.

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On the basis of this fardbeyan of the informant, FIR being Godda Town P.S. Case No.7/97 dated 10.01.1997 was registered against three unknown persons under sections 452/302/34 of IPC.

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After investigation, the police submitted the charge sheet against the appellants for the offences under sections 452/302/34 IPC and section 27 Arms Act. Cognizance of the offence was taken and case was committed to the court of Sessions.

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Charge was framed under section 302/34 of IPC against appellants and trial commenced and at the conclusion of trial appellants were convicted and sentenced as aforesaid, hence, this appeal.

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Submission of the learned counsel for the appellants:

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Learned counsel for the appellants has taken the following grounds for interfering with the finding recorded by the learned trial Court in the impugned judgment:

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(i) There is no specific attributability, as per the evidence adduced on behalf of the prosecution, brought on record so far as the appellants are concerned.

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(ii) It has been contended that initially the FIR was lodged against unknown person but later, these appellants have falsely been implicated in the case by the informant whose statement has been recorded by the learned Judicial Magistrate under section 164 Cr.PC at the instance of the police.

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(iii) It has been contended that the learned trial Court failed to appreciate that there is serious contradiction in the evidence of the informant in face of statement before the police (F.I.R.) and before the learned Magistrate under section 164, Cr.P.C. and before the trial Court and none of the evidence is trustworthy.

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(iv) It has been contended that the learned trial Court has failed to appreciate that the conduct of the informant is highly unnatural and improbable in view of the fact that her husband was killed in her presence and she did not disclose their names at earliest due to threatening and fear.

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(v) It has been contended that the learned trial Judge failed to appreciate that the co-bed partners did not sustain any injury while the deceased was being assaulted with a danda and hence her statement before the magistrate is not trustworthy.

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(vi) It has been contended that the learned trial Judge has failed to appreciate that presence of P.W.1 in the house of the victim is highly doubtful since his house was only after two or three houses

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of the informant and there is no mentioning in the F.I.R. though his name was figured as adopter of her elder son.

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(vii) It has been contended that the learned Judge has not taken into consideration the fact in examining P.W.1 who is an interested witness and has relied upon his evidence while convicting the appellants herein without taking into account that when the evidence of interested witness has to be tested on the anvil of truth, in the light of probabilities the previous statements and the surrounding circumstances.

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(viii) It has been contended that the learned trial Court has failed to appreciate the fact that there was no identification of the chappal and Kambal by any of the co-villagers which were said to be the belongings of the accused and were left in the house of the victim during the occurrence.

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(ix) It has been contended that the learned trial Court has failed to appreciate that there is no corroborating evidence to connect the appellants to the murder of late Kanti Mahto and none of the evidence examined by the prosecution except P.W-1 and P.W-10 (the informant) have thrown any light of suspicion on the appellants.

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(x) It has been contended that the learned trial Court has failed to appreciate the fact that the informant has given contradictory statement in her fardbayan and in her evidence as P.W-10 as she has stated in her fardbayan that after the occurrence, her husband was brought to the police station on a thela, but in her evidence as P.W-10, she has deposed that on being informed, the police came

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to her house and sent her husband first to police station and then hospital.

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(xi) It has been contended that the said cart puller ( thela wala) has not been examined by the prosecution in the trial to prove the case of the prosecution.

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The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the judgment of conviction passed by the learned trial Court convicting the appellants under section 302/34 of the Indian Penal Code, therefore, is fit to be quashed and set aside.

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Submission of the learned Public Prosecutor for the State:

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While defending the judgment of conviction and sentence, the learned Public Prosecutor appearing for the State has argued by taking the following grounds:

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(i) The conviction so far as under section 302/34 of the Indian Penal Code against the appellants does not suffer from an error, since, ample evidence has been produced by the prosecution.

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(ii) PW-10 informant and PW-1 are eyewitness and they had seen the appellants firing bullet on the deceased leading to death of the deceased.

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(iii) Doctor had found fire arm injury on the body of deceased which corroborates the ocular evidence of PW-1 and PW-10.

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(iv) The learned Public Prosecutor appearing for the State, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error and does not require any interference, hence, the instant appeal is fit to be dismissed.

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Analysis

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.

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We have also gone through the testimonies of the witnesses as available in the Trial Court Records as also the exhibits appended therewith.

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This Court, before considering the argument advanced on behalf of the parties, is now proceeding to consider the testimonies of witnesses which have been recorded by the learned trial Court.

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In order to substantiate the case, the prosecution had altogether examined 13 witnesses out of whom PW10-Sarita Devi is the informant of the case; PW1-Babulal Mahto , PW2-Harihar Mahto, PW3-Rajnath Mahto, PW4- Sitaram Mahto, PW5- Jitendra Mahto, PW6- Sardhari Mahto, PW7- Bhashan Mahto, PW8-Nandan Mahto, PW9- Ram Prasad Mahto, , PW11-Sriniwas Singh (Investigating Officer), PW12- Dr. Satendra Mishra, who conducted the postmortem examination over the dead body and PW13- Sri N.B Singh, Judicial Magistrate, 1^st Class, Godda, who has recorded the statement of the informant under section 164 Cr.P.C.

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PW1-Babulula Mahto, is the cousin brother ( mamera bhai ) of the deceased. PW-1 in his examination-in-chief has stated that on the date of occurrence he was sleeping in the house of Kanti Davi in the Varandah . He woke-up on halla raised by the informant Sarita. Sarita told him that Ashok Mahto, Pradeep Mahto and Rajendra Mahto fired at

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Kanti Mahto and fled away. He went running at the place and saw the dead body. He also saw Ashok, Rajendra and Pradeep in the house. Ahsok told him that if he tells the name to any one, he would kill him also. PW-1 further stated that the bullet hit at the chest of the deceased and there was blood. In the Court, PW-1 identified the accused persons.

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In his cross-examination PW-1 has stated that Kanti was his maternal brother (cousin) and he has a house after 3 and 4 houses away from the house of Kanti. He has adopted the son of Kanti, who is living with him. In paragraph-8 of his cross-examination, he has stated that on the day of occurrence, he and Ranjeet was in the house of Kanti. PW-1 further stated that Kanti and his wife were sleeping in one bed and he was sleeping at a distance of about 10 to 20 hands from them. Ranjit was sleeping in a different room. He has stated that he did not woke-up on hearing the sound of fire, but on halla he woke-up and saw the three accused while they were fleeing away.

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PW-2 Harihar Mahto stated that on hearing halla, he had gone to the place and saw the dead body of Kanti had been lifted on thela . In the police station fardbeyan of sarita Devi was recorded in his presence and he had signed on it. PW-2 has proved his signature on the fardbayan which has been marked as Ext.-1. He has also proved his signature on the inquest report and also on seizure list which have been marked as Ext.1/a and 1/b respectively.

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In his cross-examination, PW-2 has stated that at the place of occurrence many people had gathered, but Sarita (informant) had not disclosed the name of anyone who killed the deceased rather she has stated that some unknown persons killed the deceased and fled away.

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P.W.3 Rajnath Mahto, has stated in his evidence that on hearing halla he had gone and seen the dead body of Kanti being lifted on thela . He has also proved his signature on the seizure list of seized ledra (tosak) and one bullet, which has been marked as Ext.-2.

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P.W-4 Sitaram Mahto, is also seizure list witness. He has proved his signature on the seizure list of gendra (tosak) a nd one bullet which has been marked as Ext.-3.

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P.W.-5 Jitendra Mahto, has stated in his evidence that after hearing halla, he went and saw dead body of Kanti Mahto. There was bullet injury on his chest. He has identified his signature on the inquest report, which has been marked as Ext.-4.

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P.W. -6 Sardhari Mahto, has proved his signature Ext.-5 on the seizure list of one markin cloth with blood stained. In his crossexamination, PW-6 has stated that the seizure list was prepared in the night at 11 PM and at the police station he was asked to sign on the paper.

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P.W.-7 Bhashan Mahto has also stated that on hearing halla he went to the gali and saw Kanti was taken on a thela (cart). He heard Kanti was killed by bullet injury of a pistol. He had seen the blood on the said cart. In his cross-examination, PW-7 has stated that he gave a piece of land to the deceased Kanti for construction of a house in which the deceased was living after constructing the house. He has stated that he could not say that the deceased had enmity with anyone.

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P.W-8 Nandan Mahto has stated that on hearing halla he came

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out from his house and he heard that someone had killed Kanti. Thereafter,

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he went to the house of the deceased and saw that the bullet hit the chest of the deceased. PW-8 further deposed that the informant had not stated that the appellants had killed Kanti. In his cross-examination, PW-8 has stated that neither the police asked any question to him about the occurrence nor recorded his statement.

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P.W-9 Ram Prasad Mahto has stated that at the night of occurrence, he heard that someone fired at Kanti Mahto. He saw at gali that Kanti was taken to Hospital on a thela . He has stated that the bullet hit at chest of the deceased and Sarita Devi (the informant) had not stated anything. He has stated that the accused belong to his village.

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P.W-10 Sarita Devi is the informant of the case. Informant has stated that the occurrence took place on Thursday night at about 10.30 P.M. She was sleeping with her husband and one child in the house. The accused Ashok Mahto, fired at her husband, accused Rajendra Mahto lit the torch and the accused Pradeep was standing at the door. When she raised halla , then her bhaisur , namely, Babulal Mahto (PW-1) came running and he had also seen the accused persons. Ashok Mahto fired at the chest of her husband. She has further stated that the accused persons threatened her Bhaisur to kill.

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At paragraph-2, Informant stated that Harihar Mahto made a phone call to police station and the police came to the house in the night itself and had recorded her statement. Thereafter, her husband was brought to the police station and then police sent him to hospital. At paragraph-4, Informant has stated that before this occurrence Pradeep Mahto had given a country made pistol to her husband and for the same her husband had

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given money to him. This pistol was given 10 days before the occurrence and prior to two or three days of the occurrence, he had taken the pistol back and her husband was demanding return of money and in that connection, there was quarrel. At para-7, informant has stated that in her fardbeyan she had not named the accused persons because they had threatened her to kill and also to kill her sons who are aged about 10 years and 6-7 years. Before the Court, this witness identified the accused persons and said that Ashok Mahto had fired and Rajendra was having a torch and Pradeep was standing at the door.

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In her cross-examination, informant at paragraph-10 stated that police recorded her statement thrice and her last statement was recorded after one month. In her first bayan she had not stated the names of the accused because they had threatened her but in her subsequent statement, she had named them. At paragraph-16 of her crossexamination she has stated that Babulal Mahto (P.W-1) resides in her house because he is unable to cook food. At para-19 informant has stated that Ashok Mahto was not coming to her house earlier before the death of her husband. She has denied the suggestion that she had illicit relation with the accused Ashok Mahto. In paragraph-21 suggestion had been given to her that police threatened her, beaten her and asked her to tell the name of the accused to which, she had denied. Further, informant has denied suggestion that due to fear of police she has given the names of the accused one month after. At paragraph-23, informant has stated that he fired from close range at the chest. At paragraph-24, informant has stated that when accused were fleeing away, from the opposite direction, her bhaisur came and met them in the angan but,

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her bhaisur could not catch them because he has leprosy. At paragraph26 informant has stated that police came at about 12.00 in the night and recorded her statement. She had also gone to police station with her husband (the deceased). At paragraph-27 informant has stated that there was blood in her cloth also and on the floor of the home. At paragraph28 she has stated that Harihar had made a call from Kothi of S.P. Informant further stated that she recognized the accused persons on the light of torch of the accused and she has denied the suggestion that she got her husband killed and also denied that she does not know the fact that how her husband died.

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P.W.-11 is the Investigating Officer of the case. He has stated that on 09.01.1997 at about 10.00 P.M. he was on patrolling duty and when he returned at 11.50 P.M. at Police station a telephonic message came from S.P., Godda residence by Arun Kumar informing him that he had heard firing at Murlidih village. Then, Officer-in-charge entered Sanha no.268 dt.9.1.1997 and handed him the charge to verify. He visited Murlidih village and investigated. He recorded fardbeyan of Sarita Devi (PW-10), which has been marked Ext.-6. At paragraph-3, he has described the place of occurrence, which is the house of informant. At paragraph-5 he has stated that he found blood stained ledra ( tosak ) and front portion of cartridge (bullet) which he seized in presence of witnesses. The seizure list of the said articles has been marked as Ext.7 and 7/a. He also seized blanket, chappal etc. and the seizure list of the said article has been marked as Ext.-7/b. They had also taken a police dog and the report has been marked as Ext.-8. Investigating officer has proved the inquest report marked as Ext.-9. At paragraph-10 he has

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stated that on getting secret information he raided the house of accused persons on 17-1-1997, but they were not found in the house.

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At paragraph-11 he has stated that the informant told him that the

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informant is now ready to tell the true fact because due to fear and threatening given by the accused persons she had not disclosed their name earlier. The informant told him the she wanted to tell the truth in lonely place and thereafter she came with Nandan Mahto, to the police station where he recorded her statement on 07.02.1997 for 3^rd time where she disclosed the name of these accused persons. Thereafter, her statement under section 164 Cr.P.C was recorded in the Court. He has also proved the Sanha Entry no.268 (Ext.-10) and Sanha Entry no.269 (Ext.10/a). Investigating officer has also proved the materials seized which have been marked material Ext.-I, II, III, IV, V and VI which are markin clothes, fired cartridge, ledra ( tosak ), blanket, ring, one pair chappal etc.

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During cross-examination, investigating officer witness has stated that the seized materials were deposited in malkhana where entry were made and number is allotted. At para-20 he has stated that he has not sent the clothes for examination or test . At para-21 he has stated that he found the cartridge from the straw where the deceased is said to be sleeping but he did not find hole in ledra ( tosak ). At para-23 he has stated that he has not prepared inquest report at the spot as it was night. He has further stated that he has recorded the fardbayan of the informant at 12:30 PM and a formal FIR was registered at 1.45 PM and inquest report was prepared at 7AM but in that report time was

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not mentioned. He has further stated that he has not recorded the statement of the police constable who informed him over telephone about the occurrence from the house of S.P. At para-30 he has stated that he has recorded the statement of Babulal ( bhaisur of the informant) on 26.02.1997 but could not state the reason for recording his statement so late.

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P.W.-12 is Dr. Satendra Mishra , who has conducted the postmortem examination over the dead body and found the following antemortem injuries:

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(i) A lacerated wound ½” in diameter on the front of the chest below the left sternum clavicular joint, i.e. in my opinion wound of entrance;

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(ii) A lacerated wound ¾” in diameter on the left half of upper back about 3” away from interior angle of scapula;

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On probing injury nos.(i) & (ii) they were inter connected.

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(iii) Multiple tiny abrasion with charring of skin on the front of chest covering area about 8” x 5”;

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(iv) All the injuries were caused by fire arm

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In the opinion of the doctor time since death within 18 hours and death was caused due to hemorrhage and shock resulting from above mentioned fire-arm injury.

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P.W.-13 is the Judicial Magistrate who has proved the statement recorded under section 164 Cr.P.C. of Sarita Devi (informant) which has been marked as Ext.-12. He has stated that on the order of the C.J.M, Godda, he has recorded the statement of the informant on 08.02.1997.

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During cross-examination, PW-13 has stated that since printed form was not available so he had written the statement of the informant on

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the top of the paper. At para-3, he has stated that he has recorded the statement of Sarita Devi in his house on holiday and “ daroga jee’ (Investigating Officer) brought her to his house.

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Before entering into merit of the case it would be apt to referred herein the undisputed admitted factual aspect of the case.

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(i) On the bare perusal of the testimony of P.W.10 it has come that Kanti Mahto (deceased) was killed by gun shot.

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(ii) The deceased died due to firearm injury has been substantiated by the testimony of P.W.12.

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(iii) The FIR based upon which investigation was commenced had been instituted against unknown.

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(iv) Informant PW-10 Sarita Devi, wife of the deceased was projected as sole eye witness to have seen the occurrence of murder of her husband by the appellants in the night of 0 9.01.1997 at about 10:30 P.M. PW-1 Babulal Mahto, who is cousin brother (mamera bhai) of the deceased, has deposed to have seen the appellants at the place of occurrence, after the killing of the deceased. It is evident that he had not seen the actual killing.

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(v) The sole eyewitness i.e P.W.10 has not disclosed the name of the appellants in her fardbeyan based upon which the FIR was instituted, rather about one month of occurrence she had stated that she had identified the appellants during the alleged occurrence in the light of torch which was flashed by the accused appellants.

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(vi) Further P.W.1 had stated to the police that he had seen the appellants at the place of occurrence after killing of the deceased and it is evident from the record that this witness had stated the aforesaid fact to the police after one and half month of alleged occurrence and this fact has fully been corroborated by the testimony of the investigating officer.

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(vii) Further the investigating officer who had seized the cartridge of the bullet and found the blood on lethra (a type of cotton made cloth) had not sent the same for FSL examination.

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Hence, on the basis of the aforesaid admitted facts, the seminal question involved herein that whether the testimony of PW-10 who is the sole eyewitness of the alleged occurrence is fit to be acceptable in spite of the fact that she had taken the name of appellants in alleged commission of crime after one month of alleged occurrence.

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Further question arises herein that whether the explanation as disclosed by the P.W.10 that due to threatening she had not taken the name of the appellants can be said to be reasonable explanation and whether the said explanation can be relied upon in order to convict the appellants.

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Therefore, this Court, on the basis of documents available on record as exhibited and testimony of the witnesses, is to see as to whether there is sufficient material to attract offence under Section 302/ 34 IPC against the appellants.

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Before venturing into merit of the case it would be apt to referred herein the evidentiary value of sole eyewitness. It is settled proposition of law that the judgment of conviction can be passed on the basis of the

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testimony of sole eyewitness but the testimony of said witness should be trustworthy and inspire confidence in the mind of the Court.

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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 :-

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"30. Shri Bagga has also submitted that there was sole testimony of

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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.

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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.

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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.

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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."

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35. Likewise, the Hon'ble Apex Court in the case of “ Kuriya and

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another vs. State of Rajasthan” , (2012) 10 SCC 433 has held as under: -

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" 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."

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It is thus evident from the aforesaid settled position of law that

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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.

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In the backdrop of the aforesaid settled position this Court is now adverting to the testimony of the prosecution witnesses. From the testimonies as reproduced above, and the fardbeyan , it has come that informant PW-10 Sarita Devi, slept with her husband Kanti Mahto(deceased) along with small child i n the night at 9:30 P.M. on 09.01.1997. Then, at about 10.30 P.M., three unknown persons came to her house and one man pulled her chadar ( odhana ) and she woke-up, another man lit the torch and after seeing her husband, he told to kill him. Then another person who was dark skinned and was wearing full pant, fired bullet on the chest of her husband resulting in death of the informant’s husband.

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Learned counsel for the appellants has mainly taken the ground of discrepancy and unreliability in the testimony of Informant PW-10 Sarita Devi and PW-1 Babulal Mahto, which has not been appreciated by the learned trial court.

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Admittedly, informant PW-10 Sarita Devi had not taken the name of the appellants in her fardbeyan . Hence, FIR was registered against three unknown persons under section 302/34 of IPC. In the evidence of the investigating officer, it has come that informant had disclosed the name of the appellants after about one month of alleged occurrence. On going through the deposition of the investigating officer, this court finds that at para-11 investigating officer has deposed that informant told him that the informant is now ready to tell the true facts because due to fear and threatening given by the accused persons, she had not disclosed their name earlier. The informant also told him the she

¶154

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wanted to tell the truth in lonely place and thereafter she came with Nandan Mahto, to the police station where he recorded her statement on 07.02.1997 where she disclosed the name of these accused/appellants herein.

¶157

Hence, not disclosing the name of the appellants in the FIR at the first instance by the informant PW-10 was material omission/contradiction. These omissions are vital and cannot termed as minor discrepancies.

¶158

This Court is conscious with the settled position of law 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. 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

¶159

Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in case of “ Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra”, (2010) 13 SCC 657, wherein Apex court has dealt material contradiction, which is quoted for ready reference-

¶160

30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be

¶161

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justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan¹ . )

¶164

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh² . )

¶165

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P.³ )

¶166

33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait⁴ . )

¶167

34. In State of Rajasthan v. Kalki⁵ , while dealing with this issue, this Court observed as under : (SCC p. 754, para 8)

¶168

“8. … In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” 35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. (See Syed Ibrahim v. State of A.P.⁶ and Arumugam v. Stat e⁷ . )

¶169

36. In Bihari Nath Goswami v. Shiv Kumar Singh⁸ this Court examined the issue and held: (SCC p. 192, para 9)

¶170

“9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”

¶171

37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as

¶172

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improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.

¶175

Hence, not disclosing the name of the appellants till one month by the informant PW-10 and that too when informant has claimed to have witnessed the killing of her husband by the appellants by firing bullet on the chest of her husband , itself raises doubt in credibility and reliability of the Informant and raises doubt in the prosecution case.

¶176

The other material witness in the case in hand is PW-1 Babulal Mahto, who is cousin brother (mamera bhai), of the deceased, who has deposed that on the date of occurrence he was sleeping in the informant’s house in the Varandah . He woke-up on halla raised by the informant Sarita and saw accused persons Ashok, Rajendra and Pradeep in the house. Hence, as per deposition PW-1, he had not seen the occurrence of killing of deceased Kanti Mahto but, he had seen accused persons Ashok, Rajendra and Pradeep in the house of informant just after the death of deceased by gun shot. But, this material piece of evidence as to identity of the appellants, was not disclosed by the informant in her fardbeyan and this is material contradiction in the prosecution case.

¶177

Further, doubt is cast in the prosecution case on going through the cross-examination of investigating officer, who at para-30 of his cross-examination has stated that he had recorded the statement of Babulal (PW-1) on 26.02.1997 and investigating officer has specifically deposed that he had not mentioned as to why he examined Babulal so late. So, when FIR was registered on 10.01.1997, then why statement of

¶178

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PW-1 was recorded by the investigating officer after delay of one and half month of the occurrence on 26.02.1997 and for this no valid explanation has been brought forth by the prosecution on record, further weakens the prosecution case.

¶181

Hence, in the facts and circumstance of the case in hand when name of the appellants was disclosed by the Informant after one month of the date of murder of the deceased and FIR was registered against the three unknown persons, corroboration of the testimony of the informant, who figured as sole eye witness is necessary.

¶182

In “ Vadivelu Thevar vs. The State of Madras ” reported in AIR 1957 SC 614), the Hon’ble Apex Court has observed that oral testimony may be classified into three categories namely – (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. Apex court further said that in the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.

¶183

In the facts and circumstance of the case in hand, informant PW10 cannot be treated as wholly reliable and hence, court has to look for corroboration by a reliable testimony. But, PW-1 Babulal, who is said to be present in the informant’s house on the day off occurrence and

¶184

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witnessed the appellants just after the murder of deceased, was not described in the in FIR and even the investigating officer had recorded the statement of PW-2 after one and half month of occurrence of murder of the deceased, leads to only conclusion that testimony of PW-2 is also not reliable. So, in the case in hand, the testimony of the alleged sole eye witness, who is the informant of the case, find no corroboration from any reliable testimony available on record.

¶187

Thus, on the basis of the discussion made hereinabove it is considered view of this Court that the prosecution is not able to prove the charges beyond reasonable doubt against the present appellants.

¶188

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:-

¶189

"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."

¶190

Likewise, the Hon'ble Apex Court in the case of “ Krishnegowda

¶191

& Ors. Vrs. State of Karnataka” , (supra), has held at paragraph-26 as

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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."

¶196

Further, it needs to refer herein 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: -

¶197

"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 invoked when 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."

¶198

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¶200

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 :-

¶201

“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. —"

¶202

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 same view at paragraph 163 which is required to be referred which read hereunder as

¶203

“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.---"

¶204

This Court, after having discussed the factual aspect and legal position as discussed hereinabove is of the view that the prosecution has miserably failed to prove the charges against the surviving appellants and further the vital omission in the testimony of the prosecution witnesses particularly informant (P.W.10) has not been appreciated

¶205

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properly by the learned trial Court, as such the impugned order/conviction and sentence requires interference by this Court.

¶208

Accordingly, the impugned order of c onviction dated 28.11.1998

¶209

and the order of sentence dated 30.11.1998 passed by the learned 1^st Addl. Sessions Judge, Godda, in Sessions Trial Case No. 143 of 1997/192 of 1998, passed against the appellants, are hereby quashed and set aside.

¶210