# Ganga Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 1063
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Criminal Appeal No. 1162 of 1993
- **Bench:** Manoj Misra, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-singh-ors-in-jail-v-state-of-u-p-44628
- **Pages:** 13

## Headnote

A. Evidence Law-Indian Evidence Act,
1872 - Criminal appeal - Sole eyewitness if
partisan or related or inimical witness, the
court must be cautious, and evidence of
such witness may require corroboration
from independent reliable sources before
making
conviction.
Although
ocular
evidence of solitary eye-witness, who is
close relative of deceased, can be made
basis of conviction but only after it is
found to be of sterling quality, free of any
blemish or suspicion, and should impress
the Court as wholly truthful, natural and
convincing. No recovery of the weapon of
assault was made from any of the accused
- The trial court did not test the
prosecution evidence on all the aspects.
Took the prosecution evidence as gospel
truth - the presence of PW2 at the place
and time of occurrence is highly doubtful -
testimony is not of sterling quality as may
prove the prosecution case against the
accused appellants beyond reasonable
doubt - Benefit of doubt must go to the
appellants.(Para-7,23,26,31,33)
B. Evidence Law-Indian Evidence Act,
1872 - Section 134 - no particular number
of witnesses shall, in any case, be required
for the proof of any fact - Law does not
require plurality of witnesses and no particular
number of witness is required to prove the fact.
It is the quality of the evidence that counts and
not the quantity. (Para-22)

Appeal succeeds and allowed. (E-7)

Chronological list of cases cited:-

## Text

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3 All. Ganga Singh & Ors. Vs. State of U.P.
1063
house of the deceased. To top it all the
I.O. has not shown that any cot or
bedding was noticed by him lying there
during the course of investigation or
while preparing the site plan. Once, we
doubt the presence of PW3 at the place of
occurrence at the material time, the
credibility of the remaining two witnesses
of circumstance falls to the ground as
they have allegedly responded to the cries
of PW3 and her mother (who has not been
examined).

71. In view of the discussion made
above, we are of the considered view that
the prosecution evidence on the whole
fails to inspire our confidence as it poses
more questions than what it seeks to
answer. Hence, the benefit of doubt must
go to the accused. Consequently, the
appeal is allowed. The judgment and
order
dated
29.06.1993
passed
by
Additional Sessions Judge/ Special Judge,
Meerut in S. T. No.294 of 1989 is set
aside. The appellants are acquitted of the
charges framed against them. If they are
on bail, they need not surrender.

72. Let a copy of this order be sent
to the trial court for compliance.
----------

(2019)11ILR A1063

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Appeal No. 1162 of 1993

Ganga Singh & Ors. ..Appellants.(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri J.S. Kashyap.

Counsel for the Opposite Party:
A.G.A.

A. Evidence Law-Indian Evidence Act,
1872 - Criminal appeal - Sole eyewitness if
partisan or related or inimical witness, the
court must be cautious, and evidence of
such witness may require corroboration
from independent reliable sources before
making
conviction.
Although
ocular
evidence of solitary eye-witness, who is
close relative of deceased, can be made
basis of conviction but only after it is
found to be of sterling quality, free of any
blemish or suspicion, and should impress
the Court as wholly truthful, natural and
convincing. No recovery of the weapon of
assault was made from any of the accused
- The trial court did not test the
prosecution evidence on all the aspects.
Took the prosecution evidence as gospel
truth - the presence of PW2 at the place
and time of occurrence is highly doubtful -
testimony is not of sterling quality as may
prove the prosecution case against the
accused appellants beyond reasonable
doubt - Benefit of doubt must go to the
appellants.(Para-7,23,26,31,33)
B. Evidence Law-Indian Evidence Act,
1872 - Section 134 - no particular number
of witnesses shall, in any case, be required
for the proof of any fact - Law does not
require plurality of witnesses and no particular
number of witness is required to prove the fact.
It is the quality of the evidence that counts and
not the quantity. (Para-22)

Appeal succeeds and allowed. (E-7)

Chronological list of cases cited:-

1. Vadivelu Thevar Vs St. of Mad. - AIR
(1957) SC 614

2. Ramji Surjya Padvi Vs St. of Mah. AIR
(1983) SC 810
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
3.
Govindaraju
@
Govinda
Vs
St. By
Sriramapuram P.S. & anr. (2012) 4 SCC 722

4. Bhimappa Chandappa Hosamani & ors. Vs
St. of Kar. (2006) 11 SCC 323

(Delivered by Hon'ble Manoj Misra, J.
Hon'ble Mrs. Manju Rani Chauhan, J.)

1. This criminal appeal has been
preferred by accused appellants Ganga
Singh, Nem Singh, Hira Lal, Lalta Prasad
and Udaivir against the judgment of
conviction dated 03.07.1993 and the order
of sentence dated 03.07.1993 passed by
the Vth Additional Sessions Judge, Etah
in Sessions Trial No.249 of 1991 whereby
all the appellants have been convicted
under section 148 IPC and section 302
read with section 149 IPC and sentenced
to
suffer
one
year
R.I.
and
life
imprisonment,
respectively,
for
the
aforesaid
offences,
coupled
with
a
direction that both sentences would run
concurrently.

2. During the pendency of this
appeal, appellant nos. 1, 3 & 5, namely,
Ganga Singh, Hira Lal & Udaivir Singh
died and their appeal was declared abated
by vide order dated 15.07.2019.

3. The prosecution case as narrated
in the first information report (for short
FIR), which was lodged by Smt. Omwati
(P.W.1) wife of the deceased - Indrajeet
on 27.09.1990, at 11:30 A.M., at police
station Kotwali Dehat, District Etah, after
discovery of dead body of her husband, is
that her husband - deceased, a resident of
village Nagla Hasan, was doing business
in Garlic. On 26.09.2006 while he was
returning from Etah to his house along
with Balistar - P.W.2 (brother-in-law of
deceased) and Lekhraj - DW1 (distant
nephew of the deceased), at about 06:45
P.M., when they were near the road going
towards village Nandgaon, the accused
appellants, armed with country made
pistol and knives, with whom the
deceased had an altercation in connection
with dispute relating to land, caught hold
of the deceased and dragged him towards
the fields. When Balistar (PW2) and
Lekhraj
(DW1)
resisted
they
were
threatened as a result they escaped. After
the deceased was dragged into the crops
standing in the field, soon thereafter, a
gunshot was heard. P.W.2 and D.W.1
came and informed the informant about
the incident, at night, in the village. Upon
which, many persons went to search for
informant's husband but could not find
him. Next day morning, body of the
deceased was found in Millets (Bajra)
field. FIR was lodged naming the
appellants.

4. After registration of the FIR, the
Sub Inspector (S.I.) Ompal Singh (P.W.4)
visited the spot, prepared the inquest
report (Ex. Ka-3); collected blood stained
and plain earth; prepared site plan (Ex. Ka
8); took into possession three bicycles
found on the spot along with other
belongings of the deceased and prepared a
memo of recovery (Ex Ka 10); and,
thereafter, after sealing the body of the
deceased, the body was sent for post
mortem. Dr. G. C. Agrawal (P.W.3)
carried out autopsy at about 4 p.m. on
27.09.1990 and prepared autopsy report
(Ex. Ka 2). The autopsy report disclosed:
(i) Fire arm wound of entry 1.5. cm X 1
cm through and through on left temple,
blackening
scorching
and
tattooing
absent, with direction left to right and
slightly backward; (ii) Fire arm wound of
exit 3 cm x 3 cm communicating with
injury no.(i) on right side of head behind
right ear; (iii) incised wound 2 cm x 1 cm
3 All. Ganga Singh & Ors. Vs. State of U.P.
1065
x muscle deep on left thigh upper part of
outer aspect; (iv) incised wound 5 cm x 1
cm x muscle deep on inner surface of
right knee joint; and (v) abrasion 3 cm x 2
cm on back of right shoulder joint. The
time of death was estimated 3/4th of a day
before.

5. The investigation was thereafter taken
over by Aley Hasan Khan (P.W.5) who recorded
the statement of P.W.2 - Balister on 30.09.1990,
handed over custody of cycle of the deceased
and Rs.595 of the deceased recovered from the
spot to P.W.1 and prepared memo (Ex. Ka 12),
recorded statement of Lekhraj (D.W.1) on
4.10.1990 and, on 08.10.1990, took possession
of the torch, allegedly being with the witness at
the time of the incident, and prepared memo
(Ex. Ka. 13); and, thereafter, submitted charge
sheet (Ex. Ka.14). The learned Magistrate took
cognizance of the offence on the charge sheet
and committed the case to the court of session.

6. The charge of offences punishable
under section 148 IPC and section 302
read with section 149 IPC were framed
against the appellants. Upon denial of
charges,
trial
commenced.
The
prosecution, in order to prove its case,
produced and examined five prosecution
witnesses: P.W.-1 - Smt. Omwati, the first
informant, who is wife of the deceased;
P.W.-2 Balistar Singh, the eye witness of
the incident, who is brother of P.W.-1 -
Smt. Omwati and thus is brother-in-law of
the deceased; P.W.-3 Dr. G.C. Agarwal,
who conducted the post-mortem; P.W.-4
Ompal Singh, Sub-Inspector, who is the
first Investigation Officer; and P.W.-5 Ale
Hasan, Sub-Inspector, the then Station
Officer, the second Investigation Officer
of the case.

7. After recording of prosecution
evidence, the incriminating evidence were
put to the accused for recording their
statement under section 313 CrPC. In
their statements recorded U/s 313 Cr.P.C.
all the accused appellants denied their
involvement in the crime. Accused
appellants Ganga Singh, Lalta Prasad &
Udaivir Singh specifically stated that they
have been falsely implicated in this case
as they appeared as prosecution witnesses
against the deceased, who was accused in
murder of one Har Prasad. The accused
appellant Hiralal stated that he is cousin
of Har Prasad. The accused appellant
Udaivir Singh denied that his cycle was
recovered from the place of occurrence,
when this circumstance was put to him
under section 313 Cr.P.C.

8. The defense examined the alleged
eye witness Lekhraj as DW1, who stated
that he was not there with the deceased at
the time of alleged incident. He further
stated that he received the information of
the incident on the next day when he was
there in village Manota. Thereafter he
visited the village Nagla Hasan and after
about two-three hours, when he reached,
P.W.-2 Balistar also reached there. Upon
being
confronted
by
his
statement
recorded under section 161 CrPC, he
categorically denied giving of any such
statement to the police.

9. The learned trial court relied upon
the evidence adduced by the prosecution
and
convicted
and
sentenced
the
appellants for the charges framed against
them. Hence, this appeal.

10. We have heard learned counsel for
the surviving appellants 2 and 4; the learned
Additional Government Advocate (AGA) for
the State; and have perused the record.

11. It has been submitted by the
learned counsel for the appellants that the
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence adduced by the prosecution is
concocted and is wholly unreliable. The
first information report has been lodged
with inordinate delay, without there being
any plausible reason for the same. The
alleged eye witness is a procured witness
and is highly interested, partisan and
inimical witness. The appellants had no
motive to commit the offence and the
motive alleged by the prosecution is false
and imaginary.

12. On the other hand learned AGA
has stated that the eye witness P.W.-2
Balistar is wholly reliable and his
testimony is corroborated by medical
evidence and recovery of the bicycle of
the deceased and one of the accused
appellants, namely, Udaivir Singh (since
deceased), from the spot and, therefore,
the conclusion drawn by the learned trial
court is justified and the appeal is liable to
be dismissed.

13. In the light of the aforesaid
submissions, this court proceeds to
examine the evidence available on record.

14. The P.W.-1 Smt. Omwati is wife
of the deceased. She has stated in her
examination in chief that one Master Har
Prasad, resident of her village was
murdered and her husband was accused in
that murder case. He was prosecuted but
was acquitted. The accused Lalta Prasad,
Udai Singh & Hira Lal are cousins of Har
Prasad and due to this reason, they bore
enmity with her husband. Regarding the
incident in issue, she has stated that her
husband Indrajeet Singh (deceased) along
with Balistar and Lekhraj were returning
from Etah to his village. All of them were
on bicycle. Her husband was on one
bicycle and the two witnesses were on
another bicycle. When all the three
reached near the road going towards
village Nandgaon, accused appellants,
present in the court, were found having
country made pistols and knives in their
hands. They caught hold of her husband
and dragged him towards the field and
when Balistar and Lekhraj tried to
intervene, they were threatened. The
accused persons killed the deceased by
gunshot and knives and threw the dead
body into the field of pearl millets
(Bajra). She has further stated that after
receiving the information of the incident
she, along with some other persons of the
village, reached the place of occurrence
but on account of darkness could not trace
the dead body. Thereafter, on the next day
morning, she along with co-villagers
again tried to trace the dead body and the
dead body was found in the field of pearl
millets. She proved lodging of the FIR.
She stated that one month prior to the
incident, a quarrel had taken place
between the accused persons and her
husband.

15. In her cross-examination, she
stated that Balistar and Lekhraj had
informed her about the incident in the
village at about 08:00 P.M. They had
come on bicycles. The two witnesses
(Balistar and Lekhraj) and others had
accompanied her to search out the body,
however they did not visit the police
station with her at the time of lodging of
the report. Her husband's body was
discovered at 10 A.M. When she had gone
to the police station to lodge the report,
Balister and Lekhraj were there near the
body of the deceased. Sher Singh, Jalim
Singh & Talevar were present with her at
the police station. She stated that the
police arrived at the place of occurrence
at about 12:00 noon. The Investigation
Officer recorded her statement at about
3 All. Ganga Singh & Ors. Vs. State of U.P.
1067
11:30 A.M., near the body, at the place of
occurrence,
during
which
witnesses
Balistar and Lekhraj were present there.
She admitted in her cross examination
that at the time when Har Prasad was
murdered, the accused persons were not
living with Har Prasad. With regard to the
quarrel relating to land, she admitted that
no report was lodged. She has also stated
that the house of accused Lalta Prasad,
Udai Singh and Hira Lal is situated in the
eastern side of the village and the house
of accused Ganga Singh is situated in the
western side of the village and her house
is situated in the middle of the village and
the land which was subject matter of
quarrel is situated in front of her house.
The tube well and open land of the
accused persons, namely, Lalta Prasad,
Udai Singh and Hira Lal, is situated in the
eastern side of their houses. She has
denied the suggestion that the deceased
was murdered by unknown persons and
that she had lodged a false first
information report against the accused
appellants on account of enmity.

16. P.W.-2 Balistar, who is brotherin-law of deceased-Indrajeet and is
resident of village Amapur, has stated in
the examination in chief that deceased
Indrajeet was his sister's husband and was
doing business of garlic at Etah and he
was helping him in his business. The
village Nagla Hasan is situated in
between his village and Etah and he used
to visit village Nagla Hasan and the house
of his brother-in-law. He has further
stated that the accused persons were
having grudge and enmity with his
brother-in-law Indrajeet Singh on account
of murder case of Har Prasad, in which
the deceased Indrajeet was prosecuted but
was acquitted. He has further stated that
the accused were also bearing enmity
with the deceased due to earlier incident
of quarrel regarding abadi land of the
deceased. Regarding the present incident,
this witness has stated that he was
returning from Etah along with his
brother-in-law, (deceased Indrajeet) and
Lekhraj to village Nagla Hasan. His
brother-in-law was on one bicycle and he
and Lekhraj were on another bicycle. He
was having torch with him. When they
reached near the way going to village
Nandgaon, they saw accused persons
coming from front towards them. Accused
Udai Singh and Lalta Prasad were having
knives, while accused appellants Hira Lal,
Ganga Singh and Nem Singh were having
country made pistols. The accused person
caught hold of the deceased and when the
witnesses tried to save him, they were
threatened by showing country made
pistols. All the five accused appellants
dragged the deceased towards field of
pearl millets (Bajra) and thereafter he
heard a gun shot. After hearing the sound
of gunshot, he ran towards village Nagla
Hasan and informed his sister Smt.
Omwati and other persons of the village
about the incident. Thereafter they along
with Smt. Omwati and other villagers
went to the place of occurrence but as it
was dark, they could not search the
deceased in the field and returned to the
village. Next day, his sister and other
persons of the village went to the place of
occurrence and found the dead body of
deceased - Indrajeet Singh in the field of
pearl millets (Bajra). His sister Smt.
Omwati lodged the first information
report regarding this incident by giving
written information at the police station.
He saw the incident in the light of the
torch.

17. In his cross examination, P.W.-2
Balistar Singh had stated that his village is
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
situated at a distance of about 11-12 kms from
Etah and it takes about one hour to reach his
village from Etah. On the date of incident, he
started from Etah at about 06:15 P.M. on
separate cycle, while Indrajeet Singh was on
separate cycle. He has further stated in cross
examination that the accused persons were
not covering their faces and two bicycles were
parked there. The accused persons were
hidden in bushes and crop of pearl millets
(Bajra). He has also stated that near the place
of incident, there is a tube well and flour mill
situated on the approach road towards
Nandgaon and a human habitation exists
about 2-2.5 furlong away from the place of
incident. He has further stated that he didn't
shout at the time of incident, as no one was
present there. He has further stated that the
place of occurrence is situated at a distance of
about four kms from Etah city and it is about
1.5 - 2 kms away from village Nagla Hasan.
He has also stated that he could not go to Etah
to lodge the first information report as it was
quite dark at that moment. He has further
stated in his cross examination that he went to
village Nagla Hasan on his cycle. He came
back to the place of occurrence to trace the
deceased but could not find him on account of
darkness and went back to village Nagla
Hasan. In the morning at about 07:00-08:00
A.M., inhabitants of village Nagla Hasan
again went to search the deceased and the
dead body was found at about 10:00 A.M. He
did not go to the police station to lodge the
first information report. He admitted that the
accused appellants Lalta Prasad, Udai Singh
and Ganga Singh were prosecution witnesses
against his brother-in-law (deceased Indrajeet
Singh) in the murder case of Har Prasad.

18. P.W.-3 Dr. G.C. Agarwal had
conducted the post mortem examination
on the body of deceased Indrajeet Singh
on 27.09.1990 at about 04:00 P.M. He has
estimated that the death occurred about
3/4th of a day (i.e. 18 hours) earlier. He
stated that he found five injuries on the
person of the deceased, which have
already been detailed above. Though he
accepted that the death could have
occurred
at
about
06:45
P.M.
on
26.09.1990 but also expressed that it is
possible that death may have taken place
at 10 pm or up to four hours before 10
pm, on 26.09.1990.

19. P.W.-4 Sub-Inspector Ompal
Singh is the first Investigation Officer of
the case. He has stated that on 27.09.1990
he was posted as Sub-Inspector at police
station Kotwali Dehat and the case was
registered in his presence. Upon lodging
of
the
first
information
report
he
proceeded to the place of incident and
prepared the inquest report and other
police papers and sent the dead body for
post mortem examination. Thereafter he
made recovery of three cycles, one plastic
bag, one torn tehmad and slipper and
Rs.595/- from the site, from where the
deceased was dragged and had prepared
memos of the recovery. In his cross
examination, he has stated that he did not
record the statement of first informant
under section 161 of Cr.P.C at police
station and site plan was prepared on the
pointing out of first informant. On that
day, he did not interrogate the eye
witnesses Balistar and Lekhraj. He has
also stated that the witness Balistar did
not show his torch to him, when he
visited the place of occurrence.

20. P.W.-5 Sri Aale Hasan Khan is
the Station Officer of police station
Kotwali Dehat, District Etah and has
stated that on the day when the first
information report was registered he was
on V.V.I.P. duty and when he returned
back after completing that duty, he took
3 All. Ganga Singh & Ors. Vs. State of U.P.
1069
over the investigation of the case from
Sub-Inspector Ompal Singh and went to
the place of occurrence and saw various
recoveries prepared by first Investigating
Officer. He recorded the statement of eye
witness Balistar under section 161 of
Cr.P.C. on 30.09.1990 and on the same
day, he recorded the statement of first
informant again and the statement of
witness Lekhraj was recorded by him on
04.10.1990 and the statement of witness
Duryodhan (not examined) was recorded
on 26.10.1990, who identified one of the
cycle found on the spot as that of accused
Udai Veer Singh. He has further stated
that he prepared the memo of recovery
pertaining to the torch of witness Balistar
on 08.10.1990. He has admitted that he
did not conduct any investigation or
enquiry in the small hamlet (abadi) near
the place of occurrence and at the flour
mill which stood near the place of
occurrence.

21. From the evidence adduced by
the prosecution, it is clear that the
prosecution case rests on the testimony of
solitary eyewitness P.W.-2 - Balistar. This
witness is brother of the first informant -
Smt. Omwati and is brother-in-law of the
deceased Indrajeet Singh. The defense has
assailed his testimony on the ground that
he is an interested and partisan witness,
who has not lodged the FIR despite full
opportunity to him and, in fact, is a
witness
who
has
been
set
up.
Furthermore, it is not safe to rely upon the
testimony of a solitary eye witness who
has himself not suffered any injury,
particularly when the other eye witness
named in the first information report has
not supported the prosecution case and
has denied the presence of P.W.-2 Balistar
in the village also. On the other hand, the
learned AGA has contended that this
witness P.W.-2 Balistar is wholly reliable
and conviction can always rest on the
testimony of a solitary witness.

22. The law in this regard is well
settled. Section 134 of Indian Evidence
Act, 1872 provides that "no particular
number of witnesses shall, in any case, be
required for the proof of any fact". Law
does not require plurality of witnesses and
no particular number of witness is
required to prove the fact. It is the quality
of the evidence that counts and not the
quantity. In the celebrated judgment of
Vadivelu Thevar vs. State of Madras -
AIR 1957 SC 614, the Hon'ble Apex
Court has discussed this aspect of law in
following words: -

"Hence, in our opinion, it is a
sound and well-established rule of law
that the court is concerned with the
quality and not with the quantity of the
evidence
necessary
for
proving
or
disproving a fact. Generally speaking,
oral testimony in this context may be
classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable.

12. In the first category of
proof, the court should have no difficulty
in coming to its conclusion either way - it
may convict or may acquit on the
testimony of a single witness, if it is found
to be above reproach or suspicion of
interestedness,
incompetence
or
subornation. In the second category, the
court equally has no difficulty in coming
to its conclusion. It is in the third
category of cases, that the court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial.
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
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. We have
therefore, no reasons to refuse to act upon the
testimony of the first witness, which is the only
reliable
evidence
in
support
of
the
prosecution."

23. It has also been held by Hon'ble
Supreme Court in many cases that when
the sole eye witness is partisan or related
or inimical witness, the court must be
cautious and evidence of such witness
may
require
corroboration
from
independent
reliable
sources
before
making conviction. In the case of Ramji
Surjya Padvi vs. State of Maharashtra,
AIR 1983 SC 810, the relevant portion of
the judgment reads thus:

"There is no doubt that even
where there is only a sole eye-witness of a
crime, a conviction may be recorded against
the accused concerned provided the Court
which hears such witness regards him as
honest and truthful. But prudence requires
that some corroboration should be sought
from the other prosecution evidence in
support of the testimony of a solitary witness
particularly where such witness also happens
to be closely related to the deceased and the
accused are those against whom some motive
or ill-will is suggested."

24. Like-wise, in the case of
Govindaraju @ Govinda v. State By
Sriramapuram P.S. & Anr. (2012) 4
SCC 722, the Hon'ble Apex Court
cautioned about relying on testimony of
sole eye-witness in following terms: -

"Equally well settled is the
proposition of law that where there is a
sole witness to the incident, his evidence
has to be accepted with caution and after
testing it on the touchstone of evidence
tendered by other witnesses or evidence
otherwise recorded. The evidence of a
sole witness should be cogent, reliable
and must essentially fit into the chain of
events that have been stated by the
prosecution. When the prosecution relies
upon the testimony of a sole eyewitness,
then such evidence has to be wholly
reliable and trustworthy. Presence of such
witness at the occurrence should not be
doubtful. If the evidence of the sole
witness is in conflict with the other
witnesses, it may not be safe to make such
a statement as a foundation of the
conviction of the accused. These are the
few principles which the Court has stated
consistently and with certainty."

25. Another decision in the case of
Bhimappa Chandappa Hosamani &
Ors. Versus State of Karnataka, 2006
3 All. Ganga Singh & Ors. Vs. State of U.P.
1071
(11) SCC 323 would be worth-while to
notice, in which Hon'ble Apex Court dealt
with the evidence of sole eye-witness and
held as follows: -

"We have undertaken a very
close
and
critical
scrutiny
of
the
`evidence of P.W.--1 and the other
evidence on record only with a view to
assess whether the evidence of P.W.--1 is
of such quality that a conviction for the
offence of murder can be safely rested on
her sole testimony. This Court has
repeatedly observed that on the basis of
the testimony of a single eye witness a
conviction may be recorded, but it has
also cautioned that while doing so the
Court must be satisfied that the testimony
of the solitary eye witness is of such
sterling quality that the Court finds it safe
to base a conviction solely on the
testimony of that witness. In doing so the
Court must test the credibility of the
witness by reference to the quality of his
evidence. The evidence must be free of
any blemish or suspicion, must impress
the Court as wholly truthful, must appear
to be natural and so convincing that the
Court has no hesitation in recording a
conviction solely on the basis of the
testimony of a single witness."

26. The legal principle deducible from
the decisions noticed above is that although
ocular evidence of solitary eye-witness, who
is close relative of deceased, can be made
basis of conviction but only after it is found to
be of sterling quality, free of any blemish or
suspicion, and should impress the Court as
wholly truthful, natural and convincing. As to
whether the testimony is of such sterling
quality would depend on the proven facts and
circumstances of a case. The primary test
ordinarily adopted by the court to test
reliability of a witness is whether the presence
of the witness on the spot has been proved
beyond doubt and whether he had opportunity
to witness the incident. When incident occurs
inside a house, the presence of the inmates of
that house would be natural. But where the
incident takes place at a place where
ordinarily a person may not be found present,
the courts would have to closely scrutinize the
evidence to find out whether the claim that the
witness was present at the scene of occurrence
is reliable or not. Some of the tests, inter alia,
adopted by courts, to ascertain whether the
witness was present at the scene of
occurrence, are whether the witness has
suffered any injury in the incident; and
whether the conduct of the witness at the time
of the incident or soon thereafter is such
which is reflective of his having witnessed the
incident. No doubt, there can be no golden
rule that every person would react in a given
manner in a given situation but broad
probabilities have to be kept in mind to assess
whether the conduct of the witness is in
harmony with the hypothesis of his presence
at the scene of occurrence. Sometimes
inordinate delay in lodging the FIR, without
proper explanation, is evidence of conduct
which is suggestive of the fact that the witness
might not have been present and, therefore,
after deliberation and guesswork, on the basis
of suspicion, FIR has been lodged by naming
several accused persons. At times, reliability
of a witness may be gauged from the conduct
reflected by those who have been informed by
the witness. In a nutshell each case turns on its
own facts and circumstances derived from the
evidence led.

27. In the light of the aforesaid
principles, when we examine the evidence
of the prosecution witnesses P.W.-1 Smt.
Omwati first informant (not an eye
witness) and P.W.-2 Balistar (claimed to
be the eye witness), it transpires that their
conduct is not that of a normal prudent
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
human being. Say, if PW2 had informed
PW1 about the murder, she would not
have waited till recovery of the body to
lodge the FIR next day morning,
particularly, when, according to her
(PW1), she had collected villagers in the
night and had visited the spot thereby
ruling out any fear factor. Moreover, PW1
would not have waited till 8.00 AM of the
next day morning to resume search for
her husband, as has been stated by PW2,
because, an apprehending wife would not
wait till day break to find out whether her
husband is dead or alive, after receipt of
information that her husband has been
dragged into the fields and a gun shot was
heard soon thereafter. It is noteworthy
that the incident is of the month of
September and the morning sun is out by
6 A.M. therefore waiting till 8.00 AM to
resume search does not appeal to the
conscience of the court and is suggestive
of the fact that there had been no
information by that time with PW1. More
so, when no independent witness has been
produced by the prosecution to disclose
that search operations were conducted in
the night also. Then there is another
aspect, which is, if the eye witnesses,
namely, Balistar (PW2) and Lekhraj
(DW1) were present at the scene of
occurrence why it would take 2 hours to
find out the body. It may be noticed that
according to the prosecution evidence
body was found at about 10 AM whereas
the search began at 8 AM. More so, when
from the site plan, the dead body was
found just 7 paces away from the chak
road, 16 paces from the drain (nali) inside
the field, and in total just 77 paces from
the road/ place from where the deceased
was allegedly dragged by the accused.
Further, the explanation given by the
witnesses that in the night the dead body
was not traceable on account of darkness,
does not appeal to reason, particularly,
when the witnesses had torch as, later, a
case has been set up that the accused was
spotted in the light of a torch, which was
handed out to the investigation officer on
08.10.1990. Another noticeable aspect
which has surfaced in the prosecution
case is with regard to the absence of the
eye witness (PW2) at the time of
registration of FIR. In natural course of
events, the first information report ought
to have been lodged by the eye witnesses
of the incident, who were themselves
close relatives of the deceased. Not only
there is delay in lodging the FIR but the
same has not even been lodged by the eye
witness. According to the prosecution
case, P.W.-2 Balistar, the brother-in-law
of deceased, and Lekhraj, nephew of the
deceased
(not
produced
by
the
prosecution though produced by the
defense as DW1), had themselves seen
the
incident
and
were
throughout
available either with the P.W.-1 or at the
place of occurrence, having a cycle with
them yet they did not go to lodge the first
information
report
for
which
no
satisfactory explanation is there. In fact,
they did not even accompany the first
informant Smt. Omwati to the police
station at the time of lodging of the first
information report though it has come in
the evidence that they were there with the
body. If that was so, then they could have
been made witness of the inquest
proceeding. But neither of the two
witnesses was a witness to the inquest
proceeding. The said circumstances, make
the presence of the solitary eye witness
P.W.-2
Balistar,
examined
by
the
prosecution, at the scene of occurrence
highly doubtful.

28. Another aspect of the matter is
the delayed interrogation of P.W.-2
3 All. Ganga Singh & Ors. Vs. State of U.P.
1073
Balistar by the Investigating Officer. As
per the statement of P.W.-1 - Smt.
Omwati, P.W.-2-Balistar was throughout
present with her, except at the police
station, that is at the time of registration
of the FIR. She has admitted in her cross
examination that when her statement was
recorded by the Investigating Officer,
witnesses Balistar and Lekhraj were
present there. P.W.-2 Balistar also stated
in his cross examination that when the
police arrived at the place of occurrence,
he was present there with the dead body
and had shown the torch to the SubInspector and the Sub-Inspector had done
a short interrogation with him. But P.W.-4
-Sub-Inspector
Om
Pal
Singh,
the
Investigating Officer, has specifically
stated that when he visited the place of
occurrence on 27.09.1990, he prepared
the site plan at the instance of first
informant P.W.-1 Smt. Omwati and, on
that date, he did not interrogate witnesses
Balistar and Lekhraj and that the witness
Balister did not show his torch to him.
According to the statement of P.W.-5 Aale
Hasan Khan, the second Investigating
Officer, he recorded statement of eye
witness Balistar on 30.09.1990 and took
the torch of Balistar in his possession on
08.10.1990 and prepared the memo
(Exhibit Ka-13).
In
the
facts
and
circumstances of the present case, the
delayed interrogation of P.W.-2 Balistar
by the Investigating Officer is suggestive
of the fact that, in all probability, P.W.-2
Balistar was not then available as a
witness and when he was convinced to
become a witness, his statement was
recorded. This circumstance dents the
credibility of the witness PW2 and
renders him not of sterling quality.

29. The defense has also assailed the
motive of the accused appellants alleged
by the prosecution for committing the
offence. In the first information report,
the motive alleged by the first informant
is with regard to an earlier incident of
some quarrel in between the deceased and
the accused persons over a piece of land.
However in the statement of witnesses
recorded during trial, an additional motive
has been introduced which is that the
deceased Indrajeet Singh was prosecuted
in the murder of Har Prasad and accused
appellants Udai Veer Singh, Lalta Prasad
& Hira Lal are cousins of Har Prasad and
due to that reason they were bearing
enmity with the deceased Indrajeet Singh.
The cross examination of P.W.-1 Smt.
Omwati reveals that the deceased did not
make any complaint or report against the
accused persons regarding the alleged
quarrel and, further, it has also been
admitted by P.W.-1 Smt. Omwati that the
open land, stated to be root cause of
quarrel, is situated in the midst of the
village while the houses and open land of
accused persons are situated in the eastern
and western side of the village. In these
circumstances, the motive, as claimed by
prosecution, generated from quarrel in
between deceased and accused persons
relating to a piece of land which does not
appear to be accessible to the accused
persons,
seems
to
be
unfounded.
Moreover, PW1 and P.W.-2 have stated
that though accused appellants Udai
Singh, Ganga Singh & Lalta Prasad were
prosecution witnesses against deceased
Indrajeet Singh in the murder case of Har
Prasad but they resided separate from Har
Prasad. Thus, there appears no strong
motive for commission of the offence.

30. Lastly, DW1, another relative of
the deceased, allegedly an eye witness as
per the prosecution, has taken the courage
to appear as a defense witness and declare
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
that he has not been with the deceased
and has not witnessed any such incident,
as claimed by the prosecution. Though
suggestion has been put to him that on
account of pressure from his matrimonial
home he has turned up as defence witness
but there is no motive suggested as to
why he would go against his relatives
belonging to the family of the deceased. If
prosecution had not examined him, as
being won over, or if he had turned
hostile,
though
examined
by
the
prosecution, things would have been
different. But here he appeared as defense
witness and gave statement that his
presence on the spot has been falsely
shown by the prosecution. Under the
circumstances, his testimony is of some
significance so as to dent the credibility
of the prosecution evidence.

31. At this stage, we may also
observe that no recovery of the weapon of
assault was made from any of the accused
and that the alleged bicycles found on the
spot
were
not
connected,
by
any
admissible evidence, with that of any of
the accused persons or with any of the
witnesses so as to demonstrate their
presence at the scene of occurrence. It
may be noticed that PW5 had stated that
one of the bicycles was identified to be of
accused Udai Veer Singh but that person
who allegedly identified the cycle to be
that of Udai Veer Singh was not examined
whereas Udai Veer Singh, on the other
hand, in his statement recorded under
section 313 CrPC denied that the cycle
recovered was his.

32.