This Criminal Appeal under Section 374 of CrPC has been filed against the judgment dated 24th December, 2010 passed by Sessions judge, Bhind in
Sessions Trial No.65/2006, by which the appellant has been convicted under Section 302 of IPC and under Section 25(1-B)(a) of the Arms Act and
has been sentenced to undergo the life imprisonment and fine of Rs.1,000/- and rigorous imprisonment of one year and fine of Rs.500/- with default
imprisonment, respectively.
(2) The necessary facts for the disposal of the present appeal in short are that on 25/09/2005, Smt. Arati Bhatele (PW1) lodged a report that she had
gone to her parental house along with her husband in the morning at around 09:00-10:00 on a motorcycle and at about 05:00 pm, she started from her
parental house for coming back to her matrimonial house on a motorcycle along with her husband. When they were somewhere in between village
Khader and village Kharoa, their motorcycle went out of order, as a result of which they were coming by walking. At that time, three persons came
on a blue coloured motorcycle from the side of Mo, out of which appellant Kallu was one of them. They asked about the direction for village Kharoa.
When her husband told them about the direction towards village Kharoa, all the three persons came near them and the appellant fired a gunshot
causing injury on his chest. Another gunshot was fired by another person, which hit her husband, as a result of which her husband fell on the road.
They dragged him towards the side of the road and escaped. It was also mentioned in the FIR that a dispute between one Mira Bhatele on the
question of land is going on and Mira Bhatele had illicit relations with appellant Kallu. The FIR was lodged. The police, during investigation, collected
the evidence that co-accused Mira Bhatele had hatched conspiracy with the appellant Kallu for committing murder of the deceased and with the help
of two more accused persons, the offence was committed. The police, after recording the statements and completing the necessary formalities, filed
the charge sheet against Mira Bhatele and the appellant. Two more persons, namely, Charan Singh and Ramveer Singh were shown to be absconding.
The charge sheet was filed for offence under Sections 302, 34, 120-B of IPC.
(3) The trial Court by order dated 04/07/2006 framed the charges under Section 302 of IPC and under Section 25/27 of the Arms Act against the
appellant, whereas the charge under Sections 302, 120-B of IPC was framed against co-accused Mira Bhatele.
(4) The appellant and co-accused Mira Bhatele adjured their guilty.
(5) The prosecution, in support of its case, examined Arati (PW1), Mahadevi (PW2), Akhilesh Sharma (PW3), Rameshwar Dayal Bhatele (PW4),
Dr. Dinesh Khatri (PW5), Munnalal Bhatele (PW6), G.D.Sharma (PW7), Kaliyansingh Mahore (PW8), Constable Santosh Kumar Tiwari (PW9) and
Arms Clerk Dinesh Sharma (PW10). The appellant and the co-accused did not examine any witness, in their defence.
(6) After hearing both the parties, the trial Court by judgment dated 24/12/2010 passed in Sessions Trial No.65/2006 acquitted co-accused Mira
Bhatele and convicted the appellant for offence under Section 302 of IPC and Section 25(1-B)(a) of the Arms Act and sentenced him to undergo the
life imprisonment and fine of Rs.1,000/- and rigorous imprisonment of one year and fine of Rs.500/- with default imprisonment respectively. Both the
sentences have been directed to run concurrently.
(7) Neither the State nor the complainant has challenged the acquittal of co-accused Mira Bhatele. Therefore, the case is being considered only to find
out that whether the prosecution has succeeded in establishing the guilt of the appellant or not ?
(8) The first question for determination is that whether the deceased Sunil Bhatele had died homicidal death or not ?
(9) Dr.Dinesh Khatri (PW5) had conducted postmortem of the deceased Sunil Bhatele and in the postmortem, he had found the following injuries:-
''(i) Abrasion 2''x1'' just upper side of right eyebrow of face.
(ii) Abrasion 2½'' x 2'' right anterior superior line ofspine region.Â
(iii) Entrance wound ½''x½''x 'Deep- IInd and IIIrd(Between) Ribs right side chest with blackening 2â€distance sternum.
(v) Entrance wound ½'' x ½'' x ½'' just near right side of sternum near 1st entrance wound.''
One metallic bullet was recovered from the body of the deceased. In the opinion of doctor, the cause of death of the deceased was cardio respiratory
arrest due to gunshot injury.
The postmortem report is Ex.P8.
Thus, it is clear that the prosecution has succeeded in establishing that the deceased Sunil Bhatele had died homicide death.
(10) Arati Bhatele (PW1) is the only eyewitness in the case. She has stated that the incident took place in between village Khader and village Kharoa.
On that day, she was coming along with her husband on a motorcycle. As the vehicle had gone out of order, therefore, they were coming by walking.
Her husband was pushing the motorcycle whereas, she was accompanying him. The appellant and two more persons queried about the direction of
village Kharoa, which was told by her husband. The moment, her husband pointed out the way towards the village Kharoa, the appellant fired first
gunshot and another gunshot was fired by his companion. Her husband fell down on the road. After he fell down, he was dragged by the appellant and
his companions and took him towards Nariya and threw him there. She had left her house along with her husband at about 05:00 pm and at the time of
incident, there was a sunlight. It was further stated that the appellant had enmity with her husband on the question of agricultural land. The property
dispute was going on between the accused Mira Bhatele as well as the appellant and her husband. Mira Bhatele is distantly related to this witness and
she is a distant sister of her husband. Coaccused Mira Bhatele used to quarrel with her husband very frequently and she also used to threaten the
deceased by saying that she would kill him. After the incident, she came to the police station where she lodged the FIR Ex.P1. Then, again she went
to the spot along with the police and her father-in- law. At her instance, the police prepared spot map Ex.P2. Her statements were recorded by the
police on the spot itself. In cross-examination, she admitted that she is not literate and cannot read and write, but she can simply sign her signatures.
She could not tell the date, year and month of her marriage, but stated that she was married about 2 years back and the marriage took place on
Sunday and in the third year of her marriage, her husband was killed. She further stated that she lost her father during her childhood itself. She has
further stated that she has two children, however, she could not tell about the date of birth of her children. It was further stated that the house of the
appellant is adjoining to the house of deceased and the said house belongs to co-accused Mira Bhatele. The appellant has no agricultural land on his
own. He was carrying the agricultural activities on the land in possession of Mira Bhatele.
She further admitted that the mental condition of brother of Mira Bhatele is not good. She further admitted that no Court case is pending between her
husband and Mira Bhatele. Although they used to quarrel with each other, but no FIR was ever lodged in the police station. She further stated that she
went to her parental home along with her husband to attend the ''Shradh'' ceremony of her father and from there, she was coming back and started
from her parental home at about 05:00 pm. She further admitted that her matrimonial house is situated at a distance of about 1 hour from her parental
home. They had a food at around 04:00 pm. She further admitted that a shop of country made liquor is situated at some distance from the place of
incident. However, she clarified that the shop is situated at a distance of about one kilometer. She further admitted that after the incident, one person
had passed through the place of incident to whom she had narrated that some persons have killed her husband and they have dragged the body
towards the bushes. However, she could not narrate the name of such person because he was not known to known to her. It is further admitted that
when the appellant had killed her husband, then he had extended a threat that she should run away otherwise she should be killed. She further
admitted that she had not disclosed the names of assailants to the person who had passed from the place of incident and after having a brief talks, the
said person had left the said place of incident. When she was talking to the owner of the motorcycle, no other persons had passed. After the incident,
she remained on the place of incident about an hour and she admitted that during this period, several vehicles have passed from the place of incident
but none of the vehicles had stopped. She further stated that she tried to stop the bypasser by screaming and shouting but nobody stopped. It is further
submitted that as the motorcycle had gone out of order, therefore, they were coming back by walking and she was two â€" three steps behind her
husband. Her husband was pushing the motorcycle. When the first gunshot was fired, her husband had not fallen down, but after the second
gunshot was fired, her husband fell down along with the motorcycle. She further admitted that when her husband fell down, then she did not try to
assist him. She further admitted that her clothes were stained with the blood of her husband, however, her clothes were not seized by the police. She
further stated that the road was a TALCOAL ROAD and her husband was dragged for a distance of about 20 steps. However, she was frightened,
therefore, she could not see that whether her husband had sustained any injuries because of dragging or not. Whether the blood of her husband had
fallen on the ground or not, was not seen by her as it was already night and she was screaming and weeping. She further stated that she could not
recollect that whether any bloodstained earth was picked up by the police or not. After her husband was shot, she was continuously weeping. The
police personnel reached on the spot and took her to the police station. Till the police came on the spot, at that time, she was standing near the dead
body of her husband and except of police, nobody else came on the spot. The police had come by either jeep or matador, number of persons were not
counted by her. She further admitted that her signatures were not obtained by the police on the spot, but she went to police station where she
lodged the FIR. The motorcycle owner, to whom this witness had informed the incident, must have informed the police. She further stated in the FIR
that she has disclosed the name of the appellant. She further admitted that as she cannot read, therefore, she did not know that whether the incident
was rightly written in the FIR or not. She further stated that her father-in-law, elder brother-in-law and mother-in-law had come to the hospital, where
they stayed for sometime and thereafter, they went back to the house. When she reached her matrimonial house, all the neighbourers had assembled
as her husband was killed. She could not say that whether Mira Bhatele or Kallu were in the house or not. She clarified that she was continuously
weeping because of the incident. She further denied that she had not seen any incident. She further alleged that as she was along with her husband,
therefore, she had seen the entire incident. She further denied that the appellant had not fired any gunshot but somebody else had killed her husband.
She again said with the authority that it is the appellant who had fired on her husband. She further denied that till the next date of incident, neither the
police personnel nor the family members were aware that who had killed her husband. She further denied that in the entire area or even in the
newspaper, it was being discussed that some unknown persons had killed her husband. She again said that in fact, it is the appellant and his
companions, who had killed her husband. She further admitted that the appellant belongs to Muslim caste and denied that as the appellant was looking
after the land belonging to her family, therefore, her husband and his family members had enmity with the appellant. Some minor omissions in her case
diary statements were pointed out. She was further cross-examined by the counsel for co-accused Mira Bhatele. She stated that she cannot tell that
after how much time their motorcycle had gone out of order. She further stated that her husband did not try to repair the motorcycle but they were
coming by walking. She also stated that they did not try to park the motorcycle in any nearby house. She could not tell that whether any independent
persons were present on the spot at the time of incident or not. However, she admitted that when the incident took place no other person had come on
the spot. The police after coming to the place of incident, shifted the dead body of her husband. She has stated that the total width of the road is about
15-20 feet and had bushes on both sides. They took half an hour to reach the police station from the place of incident. As she was continuously
weeping, therefore, she does not know that whether at the police station, the police had taken out the dead body of her husband from the vehicle or
not. Three persons were chasing them. After hearing the gunshot fires, nobody else had come. However, she further stated that one by-passer who
was on the motorcycle had come, but as the accused persons had threatened him to kill, therefore, he ran away. The person to whom, she had
informed about the incident, was coming from the side of Gohad. After dragging her husband by the side of the road the miscreants had picked up the
motorcycle and parked the same. She further stated that she was coming along with her husband from the side of Gohad. She denied that she has
given a false statement against the accused persons. In her cross-examination, this witness has asserted that she was along with her husband at the
time of the incident.
(11) Mahadevi (PW2) is a witness of conspiracy between theco-accused Mira Bhatele and the appellant. Since the trial Court has disbelieved the
evidence of this witness and there is no appeal challenging the acquittal of co-accused Mira Bhatele, therefore, there is no need to discuss the
evidence of this witness.
(12) Akhilesh Sharma (PW3) is also a witness of conspiracy and as Mira Bhatele has been acquitted and in absence of any challenge to her acquittal,
there is no need to consider the evidence of this witness.
(13) Rameshwar Dayal Bhatele (PW4) is the person, in whosepresence, the panchnama of the dead body was prepared which is Ex.P3. The
panchnama was prepared in the hospital. Before preparation of panchnama of the dead body, a notice Ex.P4 was issued. One motorcycle was seized
vide Ex.P5. He had identified the dead body as that of Banti alias Sunil and has received the dead body vide Ex.P6.
(14) Munnalal Bhatele (PW6) is also a witness of conspiracy. He has further stated that he was informed that Banti alias Sunil has been killed,
therefore, he went to the hospital where the dead body of Banti alias Sunil was lying on the police vehicle. His daughter-in-law i.e. Arati (PW1) was
sitting near the vehicle and was weeping. The panchnama of the dead body ExP3 was prepared, where he put the signatures and motorcycle was
seized vide ExP5. When he enquired from his daughter-in-law that whether she could identify any miscreants or not, then she informed that the
appellant had fired at the deceased. A detailed discussion of the evidence of this witness, is not necessary because so far as the question of
conspiracy is concerned, the trial Court itself has acquitted co-accused Mira Bhatele. The only circumstance, is the fact that Arati (PW1) had
informed this witness about the name of the appellant as one of the assailants. Thus, the evidence of this witness to some extent can be used as a
corroborative piece of evidence.
(15) G.D. Sharma (PW7) is the Investigating Officer, who hasstated that Arati (PW1) had lodged the FIR against the appellant and two unknown
persons which is Ex.P1. The FIR was lodged as it was narrated by the first informant. Marg intimation is ExP9. Notices to the witnesses were
issued vide Ex.P4. Panchanama of dead body was prepared which is Ex.P3.The spot map was prepared which is ExP2. Appellant Kallu Khan was
arrested and on 07/10/2005, in the presence of other witnesses he produced a 315 bore country made pistol and one 315 bore live cartridge vide
ExP10. One motorcycle was seized from the spot vide seizure memo ExP5. The dead body of the deceased was sent for postmortem along with an
application which is Ex.P8. The statements of the witnesses were recorded. The clothes of the deceased were seized vide seizure memo ExP13. The
seizure memo was prepared by Head Constable Gyan Das who is posted in the Police Station and whose signatures were known to him. The 315
bore country made pistol which was seized vide seizure memo ExP10, was identified by this witness in the Court and was marked as Article-1. One
315 bore live cartridge which was seized vide seizure memo Ex.P10, was also identified by this witness. A fired bullet was also identified by this
witness. The glass bottle and the fired bullet were marked as Articles 3 to 4, whereas the live cartridge was marked as Article-2. In cross-
examination, this witness has stated that on telephone one person had given an information that he has been told by a lady that three persons had killed
her husband in between village Khader and village Kharoa. That information was received at 19:20 and in order to verify the said information he left
for the place of incident. After reaching the place of incident he found one lady, a motorcycle and a dead body. They reached the place of incident
within a period 7-8 minutes. The lady was brought to the police station for lodging the FIR. The motorcycle was seized vide seizure memo Ex.P5.
Munnalal Bhatele and Rameshwar Dayal who are signatories of the documents, had reached the spot just after the police reached. However, this
witness has stated that he had not found any bloodstained earth on the spot and accordingly, Ex.P5 was prepared. A specific question was put to this
witness that whether any sign of dragging was found on the spot or not, which was replied by this witness that the incident had taken place on damar
pucca road and, therefore, there was no possibility of sign of dragging. During the cross examination, it was noticed by the Court that the Investigating
Officer is feeling difficulty in answering the question without refreshing his memory from the case diary. As the case diary was not available,
therefore, his cross-examination was deferred. In further cross examination he stated that he remained on the spot from 19:35 till 06:00 in the morning
and after 12:00 in the night, the date has changed, therefore, there are two different dates in the proceedings. He further stated that he had prepared
the documents in the light of the vehicle. He further denied that no firearm or live cartridge was seized from the possession of the appellant. He
further stated that the place of incident is an isolated place. He admitted that the case diary statement of Arati (PW1) was recorded on 27/09/2005
and since she was upset and was in a depressed state of mind, as her husband was killed, therefore, there was a delay in lodging the case diary
statement.
(16) Kaliyan Singh Mahore (PW8) is the witness of arrest and seizure. He has turned hostile and did not support the prosecution case.
(17) Santosh Kumar Tiwari (PW9) is the person, who had brought the clothes from the hospital along with one sealed bottle carrying a fired bullet as
well as the specimen of the seal. The said articles were handed over to Head Constable Gyan Das, which was seized vide seizure memo Ex.P13.
(18) Dinesh Sharma (PW10) is working as an Arms Clerk in the office of the District Magistrate, who has stated that the sanction for prosecution
was issued by the District Magistrate by order dated 03/06/2006 and as he had worked with the District Magistrate, therefore, he can identify his
signatures.
(19) The FSL report has also been brought on record, whichhas been marked as Ex.P15. The said report is admissible in the light of provisions of
Section 293 of CrPC. As per this report, the country made pistol which was seized from the possession of the appellant was found in a working
condition and on examination, it was found that a gunshot was fired. On comparison of the country made pistol which was seized from the possession
of the appellant and the fired bullet, it was found that the bullet which was recovered from the body of the deceased, was fired form the firearm
seized from the possession of the appellant. The live cartridge which was seized from the possession of the appellant, could have been fired, which
was seized from the possession of the appellant. The gunshot holes which were found on the clothes of the deceased could have been caused by the
bullet which was recovered from the body of the deceased.
(20) It is submitted by the counsel for the appellant that the prosecution, in support of its case, has heavily relied upon the sole testimony of Arati
(PW1). The incident had taken place on a public road, therefore, the presence of other witnesses is not ruled out, but still the police has not examined
any independent witness.It is further submitted that admittedly, there was an enmity between the husband and the appellant and, therefore, the
appellant has been falsely implicated. It is further submitted that the prosecution has failed to establish beyond reasonable doubt that it is the appellant
who had fired the first gunshot on the deceased Sunil.
(21) Per contra, it is submitted by the counsel for the State that the conviction can be recorded on the basis of sole testimony of the witness. Merely
because Arati (PW1) is the wife of the deceased would not ipso facto mean that her evidence should be discarded merely because she is a ''related
witness''. It is incorrect to say that there is no corroborative piece of evidence. It is further submitted that the FSL report Ex.P15 which has been
placed on record, clearly shows that the gun which was seized from the possession of the appellant was used and the fired bullet which was
recovered from the dead body of the deceased was found to have been fired form the pistol seized from the possession of the appellant. Furthermore,
the evidence of Arati (PW1) is corroborated by the evidence of Munnalal Bhatele (PW6), who has stated that immediately after the incident he was
told by Arati (PW1) that it is the appellant who has killed the deceased.
(22) Considered the submissions made by the counsel for theparties.
(23) The first question for determination in the present case is that whether Arati (PW1) can be said to be a ''related witness'' or she was an
''interested witness'' because it is also well-settled principle of law that the evidence of a witness cannot be rejected or discarded merely because
he/she is “related witness''.
(24) The Supreme Court in the case of Raju vs. State of T.N., reported in (2012) 12 SCC 701, has held as under :-
''21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki [(1981) 2
SCC 752]. It was held that: (SCC p. 754, para 7)
“7. … True, it is, she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased.
‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the
result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible
eyewitness in the circumstances of a case cannot be said to be ‘interested’.â€
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh [AIR 1958 SC 500], the view that a “natural witness†or
“the only possible eyewitness†cannot be an interested witness may not be, with respect, correct. In Basawan Singh [AIR 1958 SC 500], a trap
witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trapâ€. The
Constitution Bench held: (AIR p. 506, para 15)
“15. … The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their
evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are
concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse
considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the
accused person.â€
The Supreme Court in the case of Jalpat Rai vs. State of Haryana, reported in (2011) 14 SCC 208 has held as under:-
''42. There cannot be a rule of universal application that if the eyewitnesses to the incident are interested in the prosecution case and/or are disposed
inimically towards the accused persons, there should be corroboration of their evidence. The evidence of eyewitnesses, irrespective of their
interestedness, kinship, standing or enmity with the accused, if found credible and of such a calibre as to be regarded as wholly reliable could be
sufficient and enough to bring home the guilt of the accused. But it is a reality of life, albeit unfortunate and sad, that human failing tends to
exaggerate, over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown
where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the
crime.
43. In the circumstances of the present case, to obviate any chance of false implication due to enmity of the complainant party with the accused party
and the interestedness of PW 1, PW 4 and PW 8 in the prosecution case, it is prudent to look for corroboration of their evidence by medical/ballistic
evidence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The lack of corroboration
from medical and ballistic evidence and the circumstances brought out on record may ultimately persuade that in fact their evidence cannot be safely
acted upon.
44. Besides PW 1, PW 4 and PW 8, who are closely related to the three deceased, no other independent witness has been examined although the
incident occurred in a busy market area. The place of occurrence was visited by PW 20 in the same night after the incident. He found three two-
wheelers one bearing No. HR 31 A 5071, the second bearing No. RJ 13 M 7744 and the third without number lying there. One Maruti car bearing No.
HR 20 D 8840 with broken glass was also parked there. The owners of these vehicles have not been examined. At the place of occurrence, one
HMT Quartz wristwatch with black strap, one belcha and four pairs of chappals were also found. There is no explanation at all by the prosecution
with regard to these articles. Nothing has come on record whether four pairs of chappals belonged to the accused party or the complainant party or
some other persons. Whether the HMT Quartz wristwatch that was found at the site was worn by one of the accused or one of the members of the
complainant party or somebody else is not known. Then, the mystery remains about the belcha that was found at the site. These circumstances
instead of lending any corroboration to the evidence of those three key witnesses, rather suggest that they have not come out with the true and
complete disclosure of the incident.''
The Supreme Court in the case of Rohtash Kumar v. State of Haryana, reported in (2013) 14 SCC 434, has held as under:-
''35. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or
a statement in writing, made or given in the court, or otherwise. In Pradeep Narayan Madgaonkar v. State of Maharashtra [(1995) 4 SCC 255] this
Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires
corroboration. The Court therein held that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded
merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far
as possible the corroboration of their evidence on material particulars, should be sought. (See also Paras Ram v. State of Haryana [(1992) 4 SCC
662], Balbir Singh v. State [(1996) 11 SCC 139], Kalpnath Rai v. State [(1997) 8 SCC 732], M. Prabhulal v. Directorate of Revenue Intelligence
[(2003) 8 SCC 449 ] and Ravindran v. Supt. of Customs [(2007) 6 SCC 410].)
Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the
said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the
effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.''
The Supreme Court in the case of State of Rajasthan Vs. Chandgi Ram reported in (2014) 14 SCC 596 has held as under :-
''17. It was contended that all the witnesses were family members of the deceased and being interested witnesses, their version cannot be relied upon
in toto. When we consider the same, we fail to understand as to why the evidence of the witnesses should be discarded solely on the ground that the
said witnesses are related to the deceased. It is well settled that the credibility of a witness and his/her version should be tested based on his/her
testimony vis-Ã -vis the occurrence with reference to which the testimonies are deposed before the court. As the evidence is tendered invariably
before the court, the court will be in the position to assess the truthfulness or otherwise of the witness while deposing about the evidence and the
persons on whom any such evidence is tendered. As every witness is bound to face the cross-examination by the defence side, the falsity, if any,
deposed by the witness can be easily exposed in that process. The trial court will be able to assess the quality of witnesses irrespective of the fact
whether the witness is related or not. Pithily stated, if the version of the witness is credible, reliable, trustworthy, admissible and the veracity of the
statement does not give scope to any doubt, there is no reason to reject the testimony of the said witness, simply because the witness is related to the
deceased or any of the parties. In this context, reference can be made to the decision of this Court in Mano Dutt v. State of U.P. [(2012) 4 SCC 79]
Para 24 is relevant which reads as under: (SCC p. 88)
“24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and
they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the
prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in
examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a
member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into
such a quarrel and trying to defuse the crisis.
Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in
accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the
Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected
party.â€Â        Â
(emphasis added)
18. Reliance can also be placed upon Dinesh Kumar v. State of Rajasthan [(2008)8 SCC 270], wherein in para 12, the law has been succinctly laid
down as under: (SCC p. 273) “12. In law, testimony of an injured witness is given importance. When the eyewitnesses are stated to be interested
and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope
in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of
related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence,
the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the
basis of such evidence.''
(emphasis supplied)
The Supreme Court in the case of Nagappan Vs. State reported in (2013) 15 SCC 252 has held as under :-
''10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased,
first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not
supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court,
in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable
contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of “interested witnesses†is
consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses.
In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab [ AIR 1953 SC 364], Guli Chand
v. State of Rajasthan [(1974) 3 SCC 698], Vadivelu Thevar v. State of Madras[AIR 1957 SC 614], Masalti v. State of U.P. [AIR 1965 SC 202], State
of Punjab v. Jagir Singh [(1974) 3 SCC 277], Lehna v. State of Haryana [(2002) 3 SCC 76], Sucha Singh v. State of Punjab[(2003) 7 SCC 643], Israr
v. State of U.P. [(2005) 9 SCC 616], S. Sudershan Reddy v. State of A.P. [(2006) 10 SCC 163], Abdul Rashid Abdul Rahiman Patel v. State of
Maharashtra [2007) 9 SCC 1], Waman v. State of Maharashtra [(2011) 7 SCC 295], State of Haryana v. Shakuntla [(2012) 5 SCC 171], Raju v. State
of T.N. [(2012) 12 SCC 701] and Subal Ghorai v. State of W.B.[(2013) 4 SCC 607])''
The Supreme Court in the case of Mohd. Ishaque Vs. State of W.B. reported in (2013) 14 SCC 581, has held as under :-
''14. We also fully endorse the view of the High Court that the mere fact that some of the witnesses are interested witnesses, that by itself is not a
ground to discard their evidence, the evidence taken as a whole supports the case of the prosecution.
15. In Hari Obula Reddy v. State of A.P. [(1981) 3 SCC 675], this Court laid down certain broad guidelines to be borne in mind, while scrutinising the
evidence of the eyewitnesses; in para 13 of the judgment, this Court held as follows: (SCC pp. 683-84)
“13. … But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for
discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction
unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested
witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically
reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the
matter of appreciation of evidence, no hard-andfast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a
partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the
material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the
natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a
prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and
free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be
found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the
main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from
independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that
these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all
situations.â€
16. PW1, PW2, PW4 in the present casesustained serious injuries and their evidence was believed by the court. It is trite law that the testimony of
injured witnesses is entitled to great weight and it is unlikely that they would spare the real culprit and implicate an innocent person. Of course, there is
no immutable rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted, it should also be in consonance
with probabilities (Ref: Makan Jivan v. State of Gujara[(1971) 3 SCC 297], Machhi Singh v. State of Punjab [(1983) 3 SCC 470], Jangir Singh v. State
of Punjab [(2000) 10 SCC 261]). In this respect, reference may be made to the judgment of this Court in Jaishree Yadav v. State of U.P. [(2005) 9
SCC 788] wherein this Court held that whether witnesses are interested persons and whether they had deposed out of some motive cannot be the sole
criterion for judging credibility of a witness, but the main criterion would be whether their physical presence at the place of occurrence was possible
and probable.''
Thus, it is clear that although Arati Bhatele (PW1) is the wife of the deceased, but her evidence cannot be discarded merely on the ground that she is
the ''related witness''. The presence of Arati Bhatele (PW1) on the spot is natural as she was coming along with her husband from her parental home
and was going to her matrimonial home after attending the ''Shradh'' ceremony of her father. Further, the police had received a cryptic information on
telephone that a lady has informed the informant that her husband has been killed by three persons. Thus, it is clear that Arati Bhatele (PW1) had
informed a stranger by-passer about the incident, therefore, the presence of Arati Bhatele (PW1) on the spot, is established from the cryptic
telephonic information given by a stranger by-passer. Thereafter, the police also went to the spot and found that a lady was standing on the spot,
whereas the dead body of a person along with his motorcycle was lying on the place of incident. That lady was brought back to the police station,
where she lodged the FIR. The incident had taken place at 07:00 in the evening, whereas the FIR was lodged at 07:50. Thus, it is clear that within one
hour not only the FIR was lodged but Arati Bhatele (PW1) had also informed a stranger bypasser about the incident. It was communicated by him to
the police. Thus, the presence of Arati Bhatele (PW1) on the spot is corroborated by the cryptic information as well as the fact that the FIR was
lodged within one hour of the incident.
(25) The next question for determination would be that whether the evidence of sole witness is sufficient to hold a person guilty or not ?
(26) Section 134 of the Indian Evidence Act is a guiding factorto consider the situation. It has been specifically provided under Section 134 of the
Evidence Act that no particular number of witnesses shall, in any case, be required for the proof of any fact. Thus, it is clear that it is the quality and
not the quantity of the witness, which decides the guilt or innocence of an accused. (27) The Supreme Court in the case of Namdeo Vs. State of
Maharashtra reported in (2007) 14 SCC 150 has held as under :-
''16. Having heard the learned counsel for the parties, in our opinion, no interference is called for in exercise of power under Article 136 of the
Constitution. It is no doubt true that there is only one eyewitness who is also a close relative of the deceased viz. his son. But it is well settled that it is
quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial
and the emphasis of courts is always on quality of evidence.
17. So far as legal position is concerned, it isfound in the statutory provision in Section 134 of the Evidence Act, 1872, which reads:
“134. Number of witnesses.â€"No particular number of witnesses shall in any case be required for the proof of any fact.â€
18. Let us now consider few leading decisionson the point.
19. Before more than six decades, in Mohd. Sugal Esa Mamasan Rer Alalah v. R. [AIR 1946 PC 3], one M together with his brother E caused
murder of his half-brother A. The trial court convicted M and sentenced him to death acquitting his brother E. The conviction was confirmed by the
appellate court. It was contended before the Privy Council that the conviction was solely based on unsworn evidence of a girl aged about 10-11 years.
The trial court found her competent to testify, but was of the view that she was not able to understand the nature of an oath and, therefore, oath was
not administered. It was contended by the accused that no conviction could be recorded on a solitary witness and that too on an unsworn evidence of
a tender aged girl of 10-11 years without corroboration. Considering the question raised before the Judicial Committee, leave was granted. Their
Lordships considered the legal position in England and in India. It was held that such evidence is admissible under Indian law “whether
corroborated or notâ€.
20. Lord Goddard, speaking for the Boardstated: (AIR p. 6)
“Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the
evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence
and not of law. In a careful and satisfactory judgment the Judge of the Protectorate Court shows that he was fully alive to this rule and that he applied
it, and Their Lordships are in agreement with him as to the matters he took into account as corroborative of the girl’s evidence.â€
21. In Vadivelu Thevar v. State of Madras [AIR 1957 SC 614] referring to Mohd. Sugal [AIR 1946 PC 3] this Court stated: (AIR pp. 618-19, para
10)
“On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly
established:
(1) As a general rule, a court can and may acton the testimony of a single witness though uncorroborated. One credible witness outweighs the
testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon bystatute, courts should not insist on corroboration except in cases where the nature of the testimony of the
single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a
witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of asingle witness is or is not necessary, must depend upon facts and circumstances of each case and no
general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes.â€
22. Quoting Section 134 of the Evidence Act, Their Lordships stated (at AIR p. 619, para 11) that
“we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly
statedâ€.
The Court proceeded to state: (AIR p. 619, para 11)
“It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon
occurrence where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases
where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the
Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single
witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal
impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single
witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses
may be forthcoming to testify to the truth of the case for the prosecution.
The Court also stated: (AIR p. 619, para 12) “There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of
witnesses.
Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to
suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the
testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the
testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But,
where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single
witness is entirely reliable.â€
23. In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] this Court held that even where a case hangs on the
evidence of a single eyewitness it may be enough to sustain the conviction given the sterling testimony of a competent, honest man although as a rule
of prudence courts call for corroboration.
“It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.â€
(SCC p. 807, para 19)
24. In Anil Phukan v. State of Assam [(1993) 3 SCC 282] the Court observed:Â Â (SCC p. 285, para 3)
“Indeed, conviction can be based on the testimony of a single eyewitness 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 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.â€
25. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614] referring to several cases, this Court stated: (SCC pp. 619-20, para 7)
“7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar
case [AIR 1957 SC 614] and, therefore, conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not
shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness.
The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at a time or place when there
was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.â€
26. In Chittar Lal v. State of Rajasthan [(2003) 6 SCC 397 ] this Court had an occasion to consider a similar question. In that case, the sole testimony
of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohd. Sugal [AIR 1946 PC 3] and reiterating the law laid
down therein, this Court stated: (SCC p. 400, para 7)
“The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the
Evidence Act, 1872 (in short ‘the Evidence Act’). Administration of justice can be affected and hampered if number of witnesses were to be
insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown
occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent,
cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality
of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be
reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for
proving or disproving a fact.â€
(emphasis supplied)
27. Recently, in Bhimappa Chandappa Hosamani v. State of Karnataka [(2006) 11 SCC 323] this Court held that testimony of a solitary witness
can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be
free from blemish or suspicion and must impress the court as natural, wholly truthful and so convincing that the court has no hesitation in recording a
conviction solely on his uncorroborated testimony.''
(28) Thus, it is clear that the sole witness even if he/sheis related to the deceased, can be relied upon if his/her evidence is found trustworthy. If the
evidence of Arati Bhatele (PW1) is considered, then it is clear that not only she started from her parental home along with the deceased on a
motorcycle, but immediately after the incident, she narrated the incident to a stranger who was bypassing the place of incident to whom she
informed the incident and accordingly, a cryptic information was given to the police by the stranger bypasser. The police has specifically mentioned
that it was informed by a lady that three persons had killed her husband. When the police reached on the spot, they found that a lady was standing on
the place of incident. That lady was brought to the police station, where a FIR was lodged by Arati (PW1). Thus, it is clear that it is established
beyond reasonable doubt that Arati (PW1) is the lady who had informed the stranger bypasser about the incident and Arati (PW1) is the lady who
was found by the police on the spot. The FIR was lodged within 50 minutes of the incident. Thus, not only the presence of Arati (PW1) is natural,
but also her presence is established by the evidence, which has come on record.
(29) It is further submitted by the counsel for the appellant that as the trial Court has disbelieved the evidence of the prosecution witnesses with regard
to hatching conspiracy by Mira Bhatele with the appellant Kallu Khan, therefore, where the part of the evidence has been disbelieved, then the
remaining part of evidence of the witness also becomes doubtful. The submission made by the counsel for the appellant cannot be accepted for two
reasons. Firstly, Arati Bhatele (PW1) is the eyewitness of actual incident and she has not stated anything about the conspiracy hatched between
Mira Bhatele and the appellant. Secondly, the principle of ''falsus in uno, falsus in omnibus'', has no application in India and the Court must try to
remove the grain from the chaff.
(30) The Supreme Court in the case of Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble, reported in (2003) 7 SCC 749 has held as under :-
''25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it
from the beginning to end. The maxim “falsus in uno falsus in omnibus†has no application in India and the witnesses cannot be branded as liars.
The maxim “falsus in uno falsus in omnibus†has not received general acceptance nor has this maxim come to occupy the status of rule of law. It
is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine
merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a
mandatory rule of evidenceâ€. (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 ])
26. The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently
speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in
giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of
acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it
does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The
aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at
any rate an exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [(1972) 3 SCC 751] and Ugar Ahir v. State of Bihar [AIR
1965 SC 277 ].) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from
falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of
separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and
the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of
M.P. [ AIR 1954 SC 15] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511].)
As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752] normal discrepancies in the evidence are those which 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 occurrence and
those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a
normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the
credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6
SCC 81], Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381] and Rizan v. State of Chhattisgarh [(2003) 2 SCC 661].''
The Supreme Court in the case of Yogendra Vs. State of Rajasthan reported in (2013) 12 SCC 399 has held as under :-
''13. The argument advanced by Shri Altaf Hussain, learned counsel for the appellants, stating that the evidence which has been disbelieved in respect
of certain accused, cannot be enough to convict the present appellants, has no force. This Court, in Ranjit Singh v. State of M.P. [(2011) 4 SCC 336]
has dealt with a similar issue. The Court herein, considered its earlier judgments in Balaka Singh v. State of Punjab [(1975) 4 SCC 511], Ugar Ahir v.
State of Bihar [(1975) 4 SCC 511] and Nathu Singh Yadav v. State of M.P. [(2002) 10 SCC 366] and has referred to the doctrine falsus in uno, falsus
in omnibus and held, that the same has no application in India. The court must assess the extent to which the deposition of a witness can be relied
upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely
impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be
discarded.
The Supreme court in the case of Raja Vs. State of Haryana reported in (2015) 11 SCC 43 has held as under :-
''20. Another circumstance which needs to be noted is that Sukha PW 7, a taxi driver, has deposed that on 18-1-2003 about 11.00 p.m. while he was
going to Fatehabad for taking passengers, he saw a bullock cart parked in front of the house of the accused and certain persons were tying a bundle in
a “palliâ€. On query being made by him, the accused persons told him that they are carrying manure to the fields. Though, this witness has given an
exaggerated version and stated differently about the time of arrest, yet his testimony to the effect that he had seen the accused with a bundle in
“palli†at a particular place cannot be disbelieved. The maxim falsus in uno, falsus in omnibus, is not applicable in India. In Krishna Mochi v. State
of Bihar, it has been held thus:
(SCC pp. 113-14, para 51)
“51. … The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in
uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of
the rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be
disregarded.â€
21. In Yogendra v. State of Rajasthan, it has been ruled that: (SCC p. 404, para 13) “13. ..…... The court must assess the extent to which the
deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in
exceptional circumstances, when it is entirely impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the
entire evidence of such a witness must be discarded.â€
(31) Thus, it is clear that although the trial Court hasdisbelieved the evidence of witness with regard to conspiracy between Mira Bhatele and the
appellant, but the entire evidence can not be discarded merely because some of the witnesses with regard to conspiracy, were not found to be reliable
by the trial Court.
(32) It was further contended by the counsel for the appellantthat as certain omissions were found in the FIR, also in the case diary statements, under
these circumstances, the evidence of Arati Bhatele (PW1) cannot be relied upon. The submissions made by the counsel for the appellant cannot be
accepted for the simple reason that while appreciating the evidence of a witness, the Court has to assess whether his/her evidence is truthful or not.Â
Discrepancies, contradictions and omissions are to be kept in mind while appreciating the evidence. However, it cannot be said that there would not be
any deficiency in the evidence of truthful-witness. Every discrepancy would not affect the creditworthiness and trustworthiness of the witness.
(33) The Supreme Court in the case of Bhagwan Jagannath Markad Vs. State of Maharashtra reported in (2016) 10 SCC 537 has held as under :-
''19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in
mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the
core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when
discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the
Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act
lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for
contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance
to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the
trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from
the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v. State of Haryana, (1999) 9 SCC 525]. Want of
independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to
reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether
an innocent person is falsely implicated. Mechanical rejection of evidence even of a “partisan†or “interested†witness may lead to failure of
justice. It is well known that principle “falsus in uno, falsus in omnibus†has no general acceptability [Gangadhar Behera v. State of Orissa, (2002)
8 SCC 381 ]. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the
offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the
other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time,
mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over
the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.''
(34) So far as the question of enmity is concerned, enmity is a double-edged weapon and if it provides a cause for false implication, then it also
provides motive for committing an offence.Â
The Supreme Court in the case of Babir vs. Vazir and Others reported in (2014) 12 SCC 670 has held as under :-
''12. We are dealing with an appeal against acquittal. The acquittal is not recorded by the trial court but by the High Court. We shall therefore see
whether there were sufficient reasons for the High Court to set aside the conviction. We must however bear in mind that if the view taken by the
High Court is a reasonably possible view it should not be disturbed because the acquittal of the accused by the High Court has strengthened the
presumption of their innocence. We must also mention that according to the prosecution this is a case of strong motive. Land disputes between the
two sides and earlier attacks made on deceased Krishna Gir have been deposed to by the witnesses. The High Court has observed that no
documentary evidence is produced by the prosecution in support of this case. However, we cannot dismiss the prosecution case of enmity between
the two sides lightly because reference to it is made by several witnesses. But that by itself does not help the prosecution. Just as there is a possibility
of murders having been committed because of motive due to enmity, there is also a possibility of false implication of innocent people to settle past
scores. That is why it is said that motive is a double edged weapon. We shall keep this in mind and approach the case. ''
The Supreme Court in the case of Ruli Ram Vs. State of Haryana reported in (2002) 7 SCC 691 held as under :-
''7. So far as the acceptability of evidence is concerned, the trial court and the High Court analysed the evidence in detail and have held it to be
plausible and acceptable, and that it suffers from no infirmity. It has been noted that in a faction-ridden village, independent witnesses, as submitted by
the learned counsel for the accused-appellant, are difficult to get. Enmity is a double-edged sword. While it can be a basis for false implication, it can
also be a basis for the crime. The court has to weigh the evidence carefully and if after doing so, holds the evidence to be acceptable, the accused
cannot take the plea that it should not be acted upon. When a plea of false implication is advanced by the accused, foundation for the same has to be
established. We do not find any reason to differ from the courts below on the factual aspects.''
(35) Thus, it is incorrect to say that where the enmity isadmitted by the witnesses, then their evidence has to be disbelieved. If the evidence of the
witness is found trustworthy, then the enmity would provide a motive for the accused to commit an offence. Thus, considering the submissions made
by the counsel for the appellant as well as the evidence which has come on record, this Court is of the considered opinion that the prosecution has
succeeded in establishing beyond reasonable doubt that it is the appellant who had fired a gunshot on the deceased Banti alias Sunil, who succumbed
to the injuries. Accordingly, it is held that the appellant is guilty of offence under Section 302 of IPC.
(36) So far as the offence punishable under Section 25(1-B)(a)of Arms Act is concerned, it is proved beyond reasonable doubt that a country made
pistol along with live cartridge was recovered from the possession of the appellant. As per the FSL report Ex.P15, the bullet which was recovered
from the body of the deceased could have been fired from the pistol which was seized from the possession of the appellant. Thus, the use of pistol by
the appellant which was recovered from his possession, is proved beyond reasonable doubt. As the appellant could not produce any licence to possess
the said pistol, therefore, this Court is of the considered opinion that the prosecution has proved the guilt of the appellant under Section 25(1-B)(a) of
Arms Act.Â
(37) So far as the question of sentence is concerned, the minimum sentence provided for offence under Section 302 of IPC is life imprisonment.
Therefore, no interference can be made on the question of sentence.
(38) Accordingly, the judgment and sentence dated 24/12/2010passed by the Sessions Judge, Bhind in Sessions Trial No.65/2006 is hereby affirmed.
(39) The appeal fails and is hereby dismissed.
