Das, J.@mdashThe appellant Golap Chandra Mahanta a coaccused along with 3 others had to face the trial in the Court of Sessions Judge, Darrane at Tezour in Sessions Case No. B8 (DT� of 1977 under section 302 and 394 read with section 34 of the Indian Penal Code. It was a double murder case where the unfortunate victims Mahadeo Prasad Agarwalla and his wife Santi Agarwalla had to face their cruel death. The learned trial Court found the appellant and his other coaccused Jogeswar Sangmai guilty under section 302 and 394 read with section 34 of the Indian Penal Code and convicted both of them to suffer R. I. for life and to pay of fine of Rs. 500, in default to undergo rigorous imprisonment for one year under section 302 of the Indian Penal Code. They were also sentenced under section 394 I. P. C. to suffer R. I. for 10 years each and to pay a fine of Rs. 500, in default to undergo R I. for one year each. The term of sentence of imprisonment awarded to each of them were directed to run concurrently. The other two accused were acquitted as they were found not guilty by the learned trial Court. Hence this appeal has been filed by Golap Chandra Mahanta challenging the legality of the judgment and order of conviction and sentences inflicted on him.
2. The occurrence, indeed, was unfortunate and heinous. While murder is a tragedy, discovery of the murderer beyond doubt is a judicial function. The duty of the Court is to enquire who the culprits were. Before we enter into the merits of the case in its proper perspective we propose to state briefly the prosecution case.
3. Deceased Mahadeo Prasad Agarwalla was the owner and proprietor of M/S Sankar Stores at Marnoiguri under Gohpur Police Station. On 23. 3. 76 evening Mahadeo Prasad Agarwalla was sitting on the �Gaddy'' of his shop Two lamp (one table lamp and one hurricane) were burning inside the shop. Two of his employees, Surajmal Sarma (P.W.3) and Ukil Prasad were busy counting empty gunny bags. At about 730 P.M. four persons armed with dagger, torch light etc, entered the shop of Mahadeo Prasad Agarwalla. It is further stated by the prosecution that one of them had a pistol like things and each of them took their respective position inside the shop to commit the offence. One of them stood on the door way, one moved towards Mahadeo Prasad and the other two approached towards Surajmal and Ukil Prasad who were busy inside the shop in counting gunny bags. One of the culprits who approached Mahadeo Prasad Agarwalla demanded key and asked him not to shout. Mahadeo Prasad raised alarm shouting �Daku, Daku�. No sooner he shouted, the culprit stabbed him. Hearing the alarm raised by him his wife Santi Agarwalla approached from inside, but she was also stabbed by one of the culprits, She fell down on the spot with injuries. Mahadeo Prasad ran out of his shop and fell in front of the shop of one Tulsi Prasad who was the next door neighbour. The culprits, after assaulting both of them took away a tin box and some money from inside the cash box that was on the ''Gaddy''. Hearing the alarm many people gathered there. On receipt of information police arrived at the place of occurrence at about 9 P.M. on the said date. Sankar Lai (since deceased) who was the son of Mahadeo Prasad lodged an ejahar narrating the incident upon which investigation was started by police of Hawajan Police Out Post. In ejahar the informant did not furnish the name of any of the culprits but simply narrated the occurrence which took place at about 730 P.M. on 23. 3. 76, In course of investigation the police arrested the accused appellant Golap Chandra Mahanta, accused Joeeswar Sangmai (who have been convicted). Maniram Gogoi and Biren Gogoi and submitted chargesheet against them under section 302/394 read with section 34 I.P.C All the aforesaid accuseds were charged under section 302/394 read with section 34. I.P.C. by the learned Sessions Judge and they pleaded not guilty when the charges were explained to them.
4. The prosecution examined as many as 17 witnesses who were crossexamined by the defence. The statement of all the accused persons were recorded under section 313 Cr. P. C. Though the defence pleaded not guilty, but further pleaded that as they protested against the high price demanded by the deceased Mahadeo Prasad Agarwalla for the goods purchased by the people few days before the occurrence, they were impleaded as accused in the case. At the close of the trial the learned trial Court having found the two accused, namely, the appellant and Jogeswar Sangmai guilty under section 302/394 read with section 34 I.P.C. convicted both of them and sentenced them as aforesaid.
5. Mr. J. P. Bhattacharjee, learned counsel appearing on behalf of the appellant has submitted and perhaps, most correctly that the entire story of the prosecution is based on the solitary witness, namely, Surajmal Sarma (P.W. 3) who claims to be the eyewitness to the occurrence. The learned counsel for the appellant has also submitted that if the evidence of P.W. 3 is considered to be the testimony without corroboration, the Court will have to see how far the conviction can be based on the testimony of the sole witness whose evidence is also shaky and unreliable. The prosecution story as it appears speaks of one Ukil Prasad who was also one of the inmates and stated to be an eye witness to the occurrence, but he has not been examined by the prosecution at least to corroborate the evidence of P.W. 3 as regards the presence of the accused in the shop house of deceased Mahadeo Prasad.
6. Mr. D. P. Chaliha, learned Public Prosecutor has submitted that there is no reason why the evidence of P.W. 3 cannot be believed or that he may be treated as untruthful and unreliable witness. According to the learned Public Prosecutor, P.W. 3 Surajmal Sarma was present when the occurrence took place and he could recognize the accused persons though he could not say the names. According to learned Public Prosecutor the evidence of P.W. 3 corroborates the story of the prosecution narrated in the ejahar. Nonmentioning the names of the accused in the ejahar would not he fatal to the prosecution case.
7. Before we consider the other aspects of the matter as submitted by the learned counsel of the parties and before we enter into evidence of relevant witnesses let us first consider the general principles to be applied to consider the guilt of the accused on the evidence of a single witness. As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. Unless corroboration it insisted upon by statute, Courts should not insist on corroboration except in cases where nature of testimony of a single witness itself requires the same as a rule of prudence. But whether corroboration of the testimony of a single witness is or is not necessary must depend upon the fact and circumstances of each case. There may be three classes of witnesses, namely, (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. The question of corroboration arises only in case of witness of the last category in which the Court has to be circumspect. In case of murder the first question which the Court has to consider is whether the accused has been proved to the satisfaction of the Court to have committed the crime. If the Court is convinced about the truth of the prosecution story conviction has to follow, (see AIR 1957 SC 614). On the other hand the acceptance of sole testimony of eyewitness must undergo test as to whether the witness was wholly reliable. The principle that conviction is possible on the testimony of the sole eyewitness cannot be applied to a case where the evidence of that sole witness is not of that quality which can compel acceptance of the evidence of the said witness. The burden lies to the prosecution to prove the guilt of the accused beyond any shadow of doubt. It is also reminds us the principle that in the deposition of witnesses there may always be normal discrepancies however honest and truthful that may be. These are mostly due to normal error 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 the like. In appreciating the evidence in criminal case grain is to be shifted from the chaff in the light of the evidence and surrounding circumstances, (see AIR 1975 SC 667).
8. In the above context let us now examine the evidence on record. Mr. Bhattacharjee, learned counsel for the appellant has first referred to us the ejahar which was lodged by the son of the deceased. During the pendency of the proceeding in the trial Court, unfortunately, the informant died and therefore the prosecution could not get the benefit of his testimony. Drawing our attention to the ejahar, Mr. Bhattacharjee pointed out that nobody''s name appears in the ejahar though it is alleged that the appellant was recognised as one of the assailants by the informant or he was informed by P.W. 3 who is stated to be an eyewitness to the incident.
Now to the evidence. P. W. 1 is Dr. Amar Singh Kakaty who held the autopsy of the deceased Mahadeo Agarwalla and his wife Santi Agarwalla. In his opinion death was due to shock and haemorrhage due to injury sustained and that the injuries which were found on the persons of Santi Agarwalla and Mahadeo Agarwalla were likely to be caused by weapons like Material Exhibit I and Material Exhibit 2. The death has not been denied by the accused but they pleaded innocence. P. W. 2 is a Senior Scientific Officer in Forensic Science Laboratory. He examined the wearing cloths of the deceased and also other material exhibits. In item No. 5 of the material exhibit, as it appears in his evidence, we find that this witness found �suspected heavy blood stain� in one white ganji and as per item No. 6 he found �suspected blood stain� in one �torn dirty blouse�. In item 2 of the result of his examination h? observed that blood could not be found in the rest of the exhibits and so, the question of comparison did not arises. Before we take up the evidence of P.W. 3 we may examine the evidence of other witnesses to see how far the prosecution could prove the guilt of the accused. P. W. 4 Dwarka Prasad Agarwalla has deposed that he came to the place of occurrence in the morning of next day of occurrence. He was one of the seizure list witnesses of the dagger which was seized by the police. That apart we do not get any other material evidence in the evidence of P. W. 4. Bhadreswar Bora arrived at the place of occurrence when he heard the news in the market that dacoit entered the house of Mahadeo Agarwalla and took away money by committing murder. He further stated that Mahadeo''s son requested him to write the ejahar as he could not write the ejahar due to tremor in his hand. In crossixamination he has categorically stated that he did not see the witness Surajmal when he reached the place of occurrence He reached the place of occurrence at about 8 P. M. and the occurrence took place at about 730 P. M.. Curiously enough he further deposed in cross examination that when he reached the place of occurrence none told him the name of Golap Mahanta as one of the assailants though, admittedly, many people were present including P. W. 3 Surajmal. P. W 6 has clearly stated that when he heard the cry at the shop of Mahadeo Agarwalla he and many people proceeded towards that side and then he saw Mahadeo Agarwalla lying in front of Tulsiram''s shop. He then immediately went to Hawazan Police Out Post and lodged an ejahar stating that dacoity had been committed in the shop of Mahadeo Agarwalla �and man had been stabbed� In crossexamination he has stated that on his arrival in front of Tulsi Sarma''s house none mentioned the name of any dacoit. He, accompanied by Biman Saikia went to police and verbally informed the police about the occurrence. Biman Saikia was not examined by the prosecution. He has clearly stated that he did not hear from Sankar and others present there about uttering the names of the dacoits or that they could recognise them, if seen. He also stated that he did not hear about any pistol or revolver stated to be carried by dacoits with them. P. W. 7 R nubak Sarkar deposed that on the day of occurrence the appellant Golap Mahanta and three Desoali persons came to her house and they had their drink (country liquor) in the house of i>. W 7. In cross examination this witness has categorically stated that at about 8 P. M. the accused Golap Mahanta (the appella it) and three others persons left her house. On plain reading of the evidence of P. W. 7 it appears that the appellant along with three others were in her house drinking liquor till 8PM. when the occurrence to�k place at 730 P M. They happened to be in the house of P. W. 7 in the evening till 8 P. M. Therefore, the evidence o P. W. 7 instead of leaning to the prosecution has supported the defence and proves the presence of the accused appellant Golap in her house till 8 P. M. The next witness P W. 8 Ritndas Thakur disposed certain material facts in his evidence which are not consistent with the story of the prosecution In his evidence he has stated that on the day the dacoity was committed in the house of Mahadeo Agarwalla, he along with two others went to take liquor in the house of P. W 7 It was dark at that time, There he could meet Accused Golap Mahanta and they drank there and Golap Mahanta had left the place a little before they left. They proceeded to the house of Mahadeo Agarwalla and found that he was lying dead in front of Tulsi''s shop. The wife of Mahadeo Agarwalla was also yine dead in injured condition inside the shop. In crossexamination he stated that he did not hear anybody mentioning the names of dacoits or saying that they could recognise the dacoits. His further statement is that Golap Mahanta accusedappellant came out of the house of P. W. 7 about 10/15 minutes ahead of them when they proceeded to Mahadeo''s house. The witness. P.W. 8 was arrested by police in connection with this case and later on he was released. P. W. 9 Golap Chandra Sarma and P.W. 10 Tileswar Barua appear to be formal witnesses. P. W. 9 stated that accused Jogeswar brought out Rs. 3, one long pant, one vest and a gamocha from his house. There were blood stains over the long pant and the ''gamocha''. Police seized those articles. P. W. 10 stated that accused Jogeswar brought out one long pant, one vest, one gamocha and Rs 3/. These were seized by the police. P. W. 11 Bhogeswar Dihingia had stated that Daroga requested him to go with the police party as Jogeswar wanted to produce a dagger and then he accompanied the police and saw Jogeswar bringing out a dagger which was seized by police. He was one of the witnesses to the seizure list. P. W. 12 Liladhar Agarwala is not a material witness. He stated that police seized one table lamp chimney, one wooden drawer, some loose change, one table lamp (without chimney), one Rakesh Lantern, one bamboo stick, one wooden hand box without drawer from inside the shop of Mahadeo. He stated that on the following day of occurrence at about 10 A. M. police seized the said articles. �. W. 13 Tileswar Tanuli has stated the story leading to discovery of certain articles by accused Jogeswar (convict) from nearly jungle. P. W. 14 who is a Judicial Magistrate, 1st Class at Tezpur held the T. I. P. on 23. 4. 76 almost after one month from the date of occurrence. In his evidence we find that Ukil Prasad and P. W. 3 Surajmal Sarma identified the accused Golap Mahanta (the appellant), accused Jogeswar Sangmai, Biren Gogoi and Moniram Gogoi. In his crossexamination he has stated that he could not say whether the witnesses hid the chance to see the suspects before he held the Test Identification parade. On perusal of his evidence it becomes clear tint though the occurrence took place on 23rd March, 1976, but no test identification parade was held till 23. 4. 76 and the possibility of knowing the acquired for the purpose of identification by the witnesses cannot be ruled out. A Finger Print Expert was examined by the prosecution as P. W.I 5 to prove the finger print that appeared in the glass chimney, Though he stated that the finger print that appeared in the chimney was identical with the right index finger print of accused Golap Mahanta, it was not possible to ascertain the date and time of setting the finger print on the substance. Admittedly, the materials were seized including the glass chimney by the police officer on the following day of occurrence at 10 A. M. and these were kept in custody of police where the accused was also put under the police custody. Therefore, the possibility of having such finger print on the chimney under certain circumstances also cannot be ruled out. P. W. 16 was the police officer attached to Gohpur Police Station who seized the dagger as produced by Jogeswar from his house. The Investigating Officer was examined as P. W. 17 who recorded the statement of the witnesses and seized the material exhibits and also arrested the accused. The accused Golap Mahanta was arrested with the help of a Dog Squad. He recorded the statement of P. W. 3 Surajmal, Ukil Prasid, Tulsiram and other witnesses. Ukil Prasad who was a material witness according to P. W. 3, was left out by the prosecution. He was not produced at the dock atleast to corrobarate the evidence of P. W. 3. Similarly, the Investigating Officer did examine a neighbouring witness, namely, Sri Tarun Bora, a school teacher who was present at the place of occurrence was also not examined by the prosecution. As regards the arrest of accused Golap Mahanta with the help of Dog Squad, this witness has stated that one Mahendra Bania was also arrested with the help of dog but lateron he was released on saying by the ''Ring Master'' that he had been held wrongly. Therefore, the arrest of a person to be an accused with the help of a dog squad is not a sure test about the commission of a particular offence by that person. It has been held by the Supreme Court in Abdul Razak Murtaza Dafadar vs. State of Maharashtra : AIR 1970 SC 283 that dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever there are thought processes there is always the risk of error, deception and even selfdeception. In the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight. In crossexamination P. W. 17 has stated that he could not see finger print on the chimney with naked eye. He denied the defence suggestion that there was no finger print of Golap Mahanta on chimney at the time of its seizure and that after wiping the chimney accused Golap was given the chimney to hold it and thus his finger print was obtained only to strengthen the case of the prosecution. The defence also could bring out certain contradictions in the evidence of the witnesses. In the evidence P. W. 17 has stated that P. W. 8 told him that when Golap Mahanta came out from the house of P. W. 7 he was proceeding ahead of them. This witness has also stated that P. W. 8 further told him that Golap had taken a ''Bidi'' from the ''Pan shop'' at Chengamara Bazar and had left them there. P. W. 9 Golap Chandra Sarma also did not say to the I. O. that there were blood stain in the seized long pant, vest and the ''gamocha''. Now the next witness is P.W. 3 Surajmal Sarma. He worked as ''Munim'' in the shop of deceased Mahadeo Prasad Agarwalla. In his evidence he has stated that at about 730 P.M. he along with Ukil Prasad were counting empty gunny bags in the shop while Mahadeo Prasad was sitting on the ''gaddi''. In the meantime four persons entered the shop who had daggers and torch lights with them. He could recognise Golap and also other three persons but he did not know their names. He has stated that Golap stabbed Mahadeo on his cheat. Accused Golap put out the lamp and chased Mahadeo whm he came out of the shop. Another black man (pointing to accused Jogeswar) stabbed the wife of Mahadeo Prasad with a dagger. According to this witness P W. 3, Ukil Prasad came out running when a man had come near him. After assault the persons left the place taking a suit case from one of the rooms near ''gaddi'' and the sale proceeds of that day. Sankar, who was the son of Mahadeo Prasad came out from inside and rendered assistance to Mahdeo''s wife. The doctor was sent for but not available. Many people assembled there, �his witness has further added that he identified the accused before the Magistrate at Tezpur. His statement was recorded by F.O. He was thoroughly crossexamined by the defence. In crossexamination he has stated that he would not be able to identify the man who had carried pistol in hand. He has further stated that police interrogated him in the night of the occurrence and on the following morning and he mentioned the name of Golap Mahanta on both the occasions. According to this witness Ukil and Tulsi were also present when he mentioned the name of Golap before the I.O. After the occurrence this witness met Ukil but they had no talk about the occurrence. This witness P.W. 3 has also stated �Ukil Prasad fled away while Mahajan was being assaulted but he was not there while the wife of Mahajan was being assaulted�. The defence while corssexamining P. W. 17 could bring contradiction with the statement of this witness recorded by the police. He made the statement before the police that when dacoits approached, Ukil Prasad fled away and after Ukil Prasad fled away Golap stabbed ''Mahajan with dagger. This witness has categorically stated that he prayed with folded hand to the dacoit not to assault him.
9. The learned trial Court examined the accused under section 313 CrP.C. and recorded their statement. The accused Golap Mabanta while denying the allegations made against him as regards commission of the offence had categorically stated
��.When I was brought to the thana, the O/C of the thana placed a chimney in a corner of a table. And when asked I lifted the chimney and handed over the same to the O/C.�
If it is correct, the finger prints of the accused would surely appear in the chimney which were sent later on to the finger print expert by the prosecution.
10. Now we are to consider whether we can rely on the testimony of P.W. 3. The witness P W. 6 has categorically stated that when he reached the place of occurrence immediately after hearing hullah he did not see P.W. 3 at the place of occurrence. We do not find in the evidence of P.W. 3 that he left the place of occurrence when other people came but on the other hand his clear evidence is that on raising hullah many people came to the place of occurrence though he could not identify few of them. P.W. 6 in his evidence has stated that when he and Biman Saikia (not examined by the prosecution) reached the place of occurrence along with the police he did not meet either Surajnial or Ukil there. Therefore, this witness also denied the presence of P.W. 3 at the place of occurrence. It appears that both the witnesses have nude categorical statement that P.W. 3 was not present at the place of occurrence. If that be the position, will it be possible to believe that P.W. 3 was present at the place of occurrence when the occurrence took place ? The simple answer would be that�it is doubtful�.
11. As regards the implication of accused Golap, the prosecution evidence is very much contradictory. P.W. 7 and P.W. 8 whose evidence was relied on by the prosecution contradicted the story of the prosecution as regards Golap who was stated to be one of the assailants. P. W. 7 has stated that on the day of occurrence Golap was in her house drinking liquor till 8 P.M. Similar evidence was also adduced by P.W. 8 who has stated that Golap had left the house of P.W. 7 at about 10/15 minutes before they left for the place of occurrence on hearing hullah. Therefore on bare reading of the evidence of P.W. 7 and P.W. 8 the commission of the offence by Golap at 730 P.M. becomes doubtful. Ti e only link to connect the accused win, the guilt is the finger prints on the chimney, but we have already discussed above that in his statement the accused has stated how the finger print could appear on the chimney. Moreover, it would be unsafe to draw an adverse inference against the accused on the basis of the report of the finger print expert if other corroborative evidence is either absent or doubtful. If we believe the evidence of P.W. 3 then a question arises why the prosecution did not examine a most important witness Ukil Prasad who would have been the best witness to corroborate P.W. 3 in all material particulars. Another facet we are to consider as to whether we should disbelieve P. Ws 7 and 8 and if so, on what grounds? The categorical evidence of both the witnesses support the defence case atleast to the extent that the accused Golap was in the house of P.W. 7 till 8 P. M. Therefore, scanning all the evidence adduced by the prosecution to prove the guilt of the accused it would be unsafe to place absolute reliance on the evidence of P.W. 3 without having any other supporting evidence to that effect. Hence the appellant, in our opinion, is entitled to get a benefit of doubt.
For the reasons set forth above we allow the appeal, set aside the conviction and sentence of the appellant. He is acquitted on benefit of doubt. The appellant is on bail and he is discharged from his bail bond.
