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Section 34 in The Indian Penal Code
Section 302 in The Indian Penal Code
The Indian Penal Code
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Supreme Court of India
Anil Phukan vs State Of Assam on 17 March, 1993
Equivalent citations: 1993 AIR 1462, 1993 SCR (2) 389
Author: A Anand
Bench: Anand, A.S. (J)
           PETITIONER:
ANIL PHUKAN

	Vs.

RESPONDENT:
STATE OF ASSAM

DATE OF JUDGMENT17/03/1993

BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
SINGH N.P. (J)

CITATION:
 1993 AIR 1462		  1993 SCR  (2) 389
 1993 SCC  (3) 282	  JT 1993 (2)	290
 1993 SCALE  (2)88


ACT:
Indian Penal Code, 1860:
Sections  302 and 34--Appellant and his brothers  inflicting
blows  on deceased--Prosecution case that words	 and  abuses
exchanged between appellant and deceased regarding repayment
of  loan--Later assault ensued--Medical evidence  consistent
with   theory	that   deceased	 assaulted   by	  only	 one
person--Whether conviction can be based on the testimony  of
sole eye witness--Held accused entitled to benefit of doubt.



HEADNOTE:
The prosecution alleged that the appellant borrowed a sum of
Rs.  450 from the deceased and had executed two	 hand  notes
Ex. 7 and Ex. 8, promising to repay the amount on 21.3.1976.
On  the	 said date the deceased accompanied by	his  nephew,
PW.3 proceeded to the village of the appellant and as he was
getting	 late,	PW.3 carried with him a	 torch	light.	 The
distance  of  the  house of the deceased from  that  of	 the
appellant was about one furlong.  The appellant was  present
in the fields in front of his house and on being asked as to
why  he had not come to return the money, he asked  them  to
wait  there  and  proceeded  towards  his  house-  When	 the
appellant  did	not  return  for  some	time,  the  deceased
alongwith PW.3 proceeded towards the house of the  appellant
when they found him and his two brothers coming towards them
variously  armed, one had a crowbar while the others  had  a
crooked dao and a kupi dao with them.  PW.3 apprehended some
danger	from the appellant and his brothers, but  his  uncle
told him that since they had done no wrong, they need not be
afraid	of  any assault.  On coming near  the  deceased	 and
PW.3, one of the brothers gave a blow with a crowbar,  while
the  other two brothers assaulted the  deceased	 thereafter.
PW.3 pulled the deceased towards his house and implored	 the
accused not to assault him.  At the asking of his uncle	 PW3
ran  away to his house and gave the information to the	wife
of  the deceased and also narrated the occurrence  to  PW.4.
The wife of the deceased went to PW.6, and after telling him
as to what had been told to
390
her  by PW3 she requested him to accompany her to the  place
of  occurrence.	 On reaching the place of  occurrence,	they
found him lying on the spot with injuries on his person	 but
he  was still alive.  Two of the PWs brought a bullock	cart
and PW.7 after lifting the body with some difficulty brought
it  to	his  house and kept it in  the	verandah.   However,
before	any  medical  aid could be  provided,  the  deceased
succumbed to the injuries at night.
The  first  information	 report was  lodged  at	 the  police
station	 at  12.30 p.m. by PW.2. During	 the  investigation,
some weapons including an axe were seized from the house  of
the  accused  and on the same day one of  the  brothers	 was
arrested at 6.45 p.m. and the other two brothers surrendered
subsequently  in  the  court.	The  Investigation   Officer
prepared  a sketch of the place of occurrence and  sent	 the
body  for postmortem examination.  The	appellant  alongwith
his  brothers were tried for offences under  section  302/34
IPC  for the murder of the deceased, and the Sessions  Judge
convicted  all the three brothers for the said	offence	 and
sentenced them for life.
On  appeal by the three brothers the Division Bench  of	 the
High  Court  upheld the conviction and sentence of  all	 the
three.
The instant SLP was admitted as regards one petitioner	only
and notice was issued.	The S.L.P. of the second  petitioner
was  dismissed	while  the third brother did  not  file	 any
appeal.
Allowing  the  appeal  and acquitting  the  appellant,	this
court,
HELD:  1.  Conviction  can be based on the  testimony  of  a
single	eye-witness and there is no rule of law or  evidence
which  says  to the contrary provided the sole	eye  witness
passes the test of reliability.	 So long as the single	eye-
witness	 is  a wholly reliable witness the  courts  have  no
difficulty  in	basing conviction on  his  testimony  alone.
However, where the single eye- witness 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 eye-witness  is  a  wholly
unreliable  witness that his testimony is discarded in	toto
and no amount of corroboration can cure that defect.  [393E-
F]
391
2. The instant case, the medical evidence is consistent with
the theory that the deceased had been assaulted only by	 one
person	and not by all the three brothers as alleged by	 the
prosecution.   The  possibility,  therefore,  that  Mahendra
accused alone had caused injuries on the deceased cannot  be
ruled  'Out.  May be on account of the recovery of  the	 two
bonds Ext. 7 and Ext 8, from the house of Anil, he was	also
implicated. [395G]
3.  The	 origin	 of the fight is totally  obscure,  and	 the
prosecution  has not explained the genesis of the origin  of
the  fight  either.   It  is  not  even	 the  case  of	 the
prosecution that Anil had refused to repay the loan or	that
any hot words or abuses had been exchanged between Anil	 and
the  deceased  when  the later had  demanded  from  him	 the
repayment of the loan.
[395H, 396A]
4. In view of the infirmities of the prosecution evidence it
would  not be safe to rely upon the testimony of Ajoy  PW.3,
the  sole  eye-witness,	 without  looking  for	 independent
corroboration  and  as already	noticed,  the  corroboration
furnished by the prosecution, unlike in the case of Mahendra
the appellant's brother, is negative in character in so	 far
as the involvement of Anil appellant is concerned. [396B]
5. The appellant, was held entitled to the benefit of  doubt
and  granting him that benefit, his conviction and  sentence
for  the  offence under Section 302/34 IPC were	 set  aside.
[396C]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 757 of 1985.

From the Judgment and Order dated 6.11.1984 of the Gauhati High Court in Criminal Appeal No. 11 of 1979. Sunil Kumar Jain, P.D. Tyagi and Vijay Hansaria for the Appellant.

S.K. Nandy for the Respondent.

The Judgment of the Court was delivered by DR. ANAND, J. Anil Phukan and his brothers Mahendra Phukan and Jojneswar Phukan were tried for an offence under Section 302/34 IPC for the murder of one Trinavan Chandra Baruah on 21.3.1976 at about 8 p.m. The learned Sessions Judge convicted all the three brothers for the said offence and sentenced each one of them to suffer imprisonment for life 392 An appeal was preferred by all the three brothers against their conviction and sentence in the Gauhati High Court. A Division Bench of that court vide judgment dated 6.11.1984 upheld the conviction and sentence of all the three. A Special Leave Petition (Crl.) No. 561/85, was preferred by Mahendra Nath Phukan, and Anil Phukan, the third brother Jojneswar, however, did not file any special leave petition. On 2.9.1985, the special leave petition as regards Mahendra Nath Phukan was dismissed while notice was issued in the petition as regards Anil Phukan. Subsequently, on 29.10.1985, special leave was granted to Anil Phukan and on 29.4.1986, he was also directed to be released on bail to the satisfaction of the Chief Judl. Magistrate, Golaghat,' Assam. We are, therefore, at this stage concerned only with the criminal appeal by special leave, of Anil Phukan. In brief, the prosecution case is that the appellant, Anil Phukan had borrowed a sum of Rs. 450 from Trinayan Chandra Baruah, deceased and had executed two hand notes Ex. 7 and Ex. 8, promising to repay the amount on 21.3.1976. However, he did not repay the amount, On 21.3.1976, the deceased accompanied by his nephew, Ajoy Baruah PW3, proceeded to the village of the appellant and as he was getting late, Ajoy Baruah PW3 carried with him a torch light. The distance of the house of the deceased from that of the appellant is about one furlong. Anil appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money, he asked them to wait there and proceeded towards his house. Later on, when Anil did not return for some time, the deceased alongwith Ajoy PW3 proceeded towards the house of the appellant when they found all the three brothers coming towards them variously armed. Mahendra had a crowbar while jojneswar had a crooked dao and Anil a kupi dao. Ajoy PW3 apprehended some danger from the appellant and his brothers but his uncle told him that since they had done no wrong, they need not be afraid of any assault. On coming near the deceased and Ajoy PW3, Mahendra, who came first, gave a blow to Trinayan on his head with the crowbar, the other two brothers also allegedly assaulted the deceased thereafter. Ajoy PW3 pulled the deceased towards his house and implored the accused not to assault him. At the asking of his uncle, Ajoy PW3 ran away to his house and gave the information to the wife of the deceased PW5 Debayani Baruah, about the occurrence. He also narrated the occurrence to PW4, Bijoy Baruah. the wife of the deceased went to PW6, Punaram Gogoi, and after telling him as to what had been told to her by Ajoy PW3, she requested him to accompany her to the place of 393 occurrence. On reaching the place of occurrence, they found Trinayan lying on the spot with injuries on his person but he was still alive. Pws Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW7 and after lifting the body of Trinayan with some difficulty brought it to his house and kept it in the verandah. However, before any medical aid could be provided, the deceased succumbed to the injuries at night. The first information report was lodged at Golaghat Police Station the next day in the afternoon at 12.30 p.m. by Surendra Nath Gogoi PW2. During the investigation, some weapons including an axe were seized from the house of Mahendra accused. On the same day, Mahendra was arrested at about 6.45 p.m. The other two brothers Anil and Jojneswar surrendered subsequently in the court. The I.O. prepared the sketch plan of the place of occurrence and sent the body for postmortem examination. The autopsy revealed that the deceased had two incised injuries on the head besides one swelling and an injury on the inner part of his thigh. The prosecution in all examined 12 witnesses to connect 'the accused with the crime.

This case primarly hinges on the testimony of a single eye witness Ajoy PW3. Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness 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. It is in the light of these settled principles that we shall examine the testimony of PW3 Ajoy.

Ajoy PW3, on his own showing, is the nephew of the deceased. He had accompanied the deceased to the place of occurrence when the later went to recover the loan from Anil appellant. This witness, therefore, is a relative of the deceased and an interested witness. Of course, mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant 394 of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime. Since, there are some doubtful aspects in the conduct of Ajoy PW3, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial. The unnatural conduct of Ajoy PW3 which has come to our notice from the record is that though he was present alongwith the deceased at the time of occurrence, on 21.3.1976, at about 8 p.m., he made no attempt to save his uncle from the assault. He did not even continue to stay there, though of course according to him, he ran for his life on being advised so by his uncle. He was not assaulted though both he and his uncle were unarmed. Even if Mahendra was engaged in assaulting the deceased, Anil, who was also allegedly armed neither made an attempt to assault Ajoy PW3 nor even chased him. PW3 Ajoy did not himself lodge the FIR. Of course, he gave information about the occurrence to PW4, PW5, PW7 and others immediately after the occurrence describing the manner of assault and the names of the assailants but why he did not lodge the FIR has not been explained by him. In his testimony in the court he deposed that after Mahendra accused gave blow with the crowbar on the head of the deceased "other accused also assaulted him". He did not describe as to on which part of the body of the deceased, had Anil and Jojneswar caused the injuries and made a general vague statement without assigning any particular injury to either of them. When we look to the medical evidence, we find that the deceased-had suffered two injuries on his head and no other injury on any other part of the body. In all, four injuries were recorded in the post-mortem report. The other two injuries, according to the doctor, could have been the result of a fall and indeed looking to the nature of those injuries, which are in the nature of a swelling on the back of the interscapular region and a lacerated wound on the interior aspect of the right thigh, it is possible to agree with the medical witness PWl Dr. Ganesh Ch. Buragohain, that those injuries could have been caused by a fall and were not the result of any direct impact with a weapon of assault. Both the head injuries are almost of the same dimensions. The possibility, therefore, that both the injuries had been caused to the deceased by Mahendra with the crowbar, who according to PW3 had hit the deceased on the head cannot be ruled 395 out. In this connection, it would also be relevant to not that according to the testimony of the Investigating Officer, PW11 Abhiram Taye, all the weapons like the crowbar Ex.M5, a dao, an axe and a hand dag were recovered only from the house of Mahendra. We have it from the testimony of PW3 and the first informant PW2 that all the three brothers lived separately. No recovery was affected from the house of the appellant Anil at all. All that was seized from his house were two bonds Ex.7 and Ex.8, undertaking to repay the loan to the deceased. Unlike Mahendra accused he was not even arrested on the date of the occurrence and the mere ipse dixit of the investigating officer, that Anil had absconded is not acceptable, particularly when the investigating officer is totally silent as to where all he had made the search for the appellant and when. He was not questioned under Section 313 Cr. PC about the allegation of absconding either. The deceased was still alive when his wife and the other co-villagers, who have appeared as witness reached the place of occurrence. The deceased did not name the appellant as his assailant before anyone. The crowbar Ex. 5 was recovered from the house of Mahendra and according to the testimony of PW3, it was the same weapon with which Mahendra had hit deceased on his head which position also receives corroboration from medical evidence. The deposition of PW4, who is the sister of PW3 Ajoy to the effect that when Ajoy PW3 came running to the house, he told her that her uncle had been killed by Anil and his brothers does not stand scrutiny because admittedly according to PW3 himself, when he ran from the place of occurrence, the deceased was still alive and as a matter of fact he was alive even when the wife of the deceased and other neighbours reached there and brought him to the house. It was only at the house while the deceased was kept in the verandah that he succumbed to the injuries. There could have been, therefore, no occasion for Ajoy PW3 to have told his sister PW4, that her uncle had been 'killed' by Anil and his brothers. This also shows that Ajoy PW3 has the tendency to exaggerate matters. The medical evidence is consistent with the theory that the deceased had been assualted only by one person and not by all the three brothers as alleged by the prosecution. The possibility, therefore, that Mahendra accused alone had caused injuries on the deceased cannot be ruled out. May be on account of the recovery of the two bonds Ex.7 and Ex.8 from the house of Anil, he was also implicated. We cannot be sure. The origin of the fight is totally in obscure and the prosecution has not explained the genesis of the origin of the fight either. It is not even the case of the prosecution that Anil had refused to repay the loan or that any hot words 396 or abuses had exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan. In view of the infirmities pointed out above, it would not be safe to rely upon the testimony of Ajoy PW3, the sole eye-witness, without looking for independent corroboration and as already noticed, the corroboration furnished by the prosecution unlike in the case of Mahendra, is negative in character in so far as the involvement of Anil appellant is concerned.

In our considered opinion, therefore, it would not be safe to hold that the prosecution has established its case against Anil appellant beyond a reasonable doubt. The appellant in our opinion, is entitled to the benefit of doubt and granting him that benefit, we set aside his conviction and sentence for the offence under Section 302/34 IPC and consequently the judgment of the High Court in so far as Anil appellant is concerned, is set aside and he is hereby acquitted.

Anil appellant is on bail. His bail bonds shall stand discharged.

N.V.K.			   Appeal allowed.
397