# Rameshwar (In Jail) v. State of U.P

- **Citation:** (2022) 7 ILRA 1203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-04
- **Case number:** Criminal Appeal No. 1665 of 1996
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-in-jail-v-state-of-u-p-48749
- **Pages:** 13

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 134 - Sole witness testimony- The
law is settled that on the testimony of a
sole witness conviction can be sustained
provided the witness is wholly reliable and
his testimony is unimpeachable and of a
stellar quality- Though, there is no bar in
basing conviction on the testimony of a
single eye-witness but, before doing so,
the court must carefully scrutinise the
evidence to be satisfied that it is free of
any
blemish
or
suspicion,
is
wholly
truthful
and
appears
natural
and
convincing,
that
is,
in
short,
it
is
intrinsically reliable, inherently probable
and wholly trustworthy.

Settled law that it is the quality and not the
quantity of evidence which is relevant provided
that the said evidence is wholly reliable,
trustworthy and credible.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 134 - Considering that it is a
case of night incident, the prosecution has
examined a solitary eye witness, whose
testimony is not of a stellar quality; that
two
gunshots
were
fired
in
quick
succession, not preceded by altercation, it
would have been a split second affair; that
the witnesses arrived at the spot from
different places after hearing gunshots
while they were within the confines of
their own home, thereby taking time to
arrive; that initial report was of seeing the
accused while they were scaling the wall
to escape therefore, bearing in mind that
the presence of light outside the room has
not been satisfactorily proved, there was
very little scope for the witnesses to
recognize the accused- Keeping in mind
that it is a case based on a single eye
witness testimony who is not wholly
reliable as discussed above, we are of the
considered view that the appellant is
entitled to the benefit of doubt.

Conviction cannot be secured where the
testimony of a solitary witness is wholly
unreliable, improbable and unnatural. (Para 16,
21, 25)

Criminal Appeal Allowed. (E-3)

Judgements/ Case Law relied upon:-

## Text

_Characters 0–39,837 of 44,503. This is a partial read: ask again with offset=39837 for what follows._

7 All. Rameshwar Vs. State of U.P.
1203
(2022)07ILR A1203
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 1665 of 1996

Rameshwar ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri O.Singh, Sri Lal Mani Tripathi, Sri Pankaj
Kumar Tyagi

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 134 - Sole witness testimony- The
law is settled that on the testimony of a
sole witness conviction can be sustained
provided the witness is wholly reliable and
his testimony is unimpeachable and of a
stellar quality- Though, there is no bar in
basing conviction on the testimony of a
single eye-witness but, before doing so,
the court must carefully scrutinise the
evidence to be satisfied that it is free of
any
blemish
or
suspicion,
is
wholly
truthful
and
appears
natural
and
convincing,
that
is,
in
short,
it
is
intrinsically reliable, inherently probable
and wholly trustworthy.

Settled law that it is the quality and not the
quantity of evidence which is relevant provided
that the said evidence is wholly reliable,
trustworthy and credible.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 134 - Considering that it is a
case of night incident, the prosecution has
examined a solitary eye witness, whose
testimony is not of a stellar quality; that
two
gunshots
were
fired
in
quick
succession, not preceded by altercation, it
would have been a split second affair; that
the witnesses arrived at the spot from
different places after hearing gunshots
while they were within the confines of
their own home, thereby taking time to
arrive; that initial report was of seeing the
accused while they were scaling the wall
to escape therefore, bearing in mind that
the presence of light outside the room has
not been satisfactorily proved, there was
very little scope for the witnesses to
recognize the accused- Keeping in mind
that it is a case based on a single eye
witness testimony who is not wholly
reliable as discussed above, we are of the
considered view that the appellant is
entitled to the benefit of doubt.

Conviction cannot be secured where the
testimony of a solitary witness is wholly
unreliable, improbable and unnatural. (Para 16,
21, 25)

Criminal Appeal Allowed. (E-3)

Judgements/ Case Law relied upon:-

1. Anil Phukan Vs St. Of Assam, (1993) 3 SCC
282

2. St. of Raj. Vs Bhola Singh, AIR 1994 SC 542

3. Bhimapa Chandapa Hosamani & ors Vs St. of
Kar., (2006) 11 SCC 323

4. Jagdish & ors. Vs St. of Har., (2019) 7 SCC
711

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. We have heard Sri Pankaj Kumar
Tyagi for the appellant Rameshwar; and Sri
Amit Sinha, learned AGA, for the State.

2. This appeal is against the judgment
and order dated 01.08.1996 passed by the
First
Additional
Sessions
Judge,
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
Muzaffarnagar in S.T. No.266 of 1994,
arising out of case crime no.33 of 1993, P.S.
Ratanpuri, district Muzaffarnagar, whereby
the appellant Rameshwar has been convicted
and sentenced as follows: imprisonment for
life under Section 302/34 IPC; and 10 years
R.I. under Section 449/34 IPC. It be noticed
that two persons were put to trial, namely,
Rameshwar (the appellant) and Vinod. By the
judgement and order impugned while
convicting and sentencing the appellant as
above, the co-accused Vinod has been
acquitted by extending the benefit of doubt to
him.

INTRODUCTORY FACTS

3. The prosecution case in a nutshell as
per the written report (Ex. Ka-1) is that on
12.4.1993 at about 8 pm in the night when
the deceased Salek Chand was in his house,
watching TV in his room, two gunshots
were heard by neighbours, namely, Jitendra
(PW-2),
Deshraj
(not
examined)
and
Dharmo (not examined). When they arrived
at the spot, they noticed Rameshwar (the
appellant) and another person, having
country made pistols in their hand, scaling
the eastern wall of the house of the deceased
and escaping towards south. Inside that
room, Salek Chand (the deceased) was
noticed dead with injuries.

4. The written report (Ex. Ka-1) of
the incident was given by the deceased's
brother (PW-1) at P.S. Ratanpuri. Chik
FIR (Ex. Ka-3) and GD entry No.25 (Ex.
Ka-4) of the written report was prepared
by PW-4 at 21.25 hrs on 12.04.1993
giving rise to case crime no.33 of 1993 at
P.S. Ratanpuri, District Muzaffarnagar.
The inquest was conducted at the spot
and was completed by 24.00 hrs (i.e.
midnight of 12/13.04.1993) of which
inquest report (Ex. Ka-5) was prepared,
which was witnessed by five persons. But
neither the informant nor any of the
persons who witnessed the accused
escaping were witnesses to the inquest
report. Autopsy of the cadaver was
carried out by Dr. S. Tandon (PW-3) on
13.04.1993 at about 3 pm. As per the
autopsy report (Ex. Ka-2), the external
examination of the body revealed that
rigor mortis was present all over the
body. The abdomen was distended. Antemortem injuries were as below:-

"1. Gunshot wound of entry
with lacerated margin 6.5 cm x 2.5 cm x
vertabrae deep on left side of the neck in
front. The wound extends from mid line
to 3 cm below labula of the ear left. The
direction of wound is from right to left
and from front to back with evidence of
fracture of the third cervical vertabrae
and evidence of laceration and rupture of
neck vessels.

2. Gunshot wound of exit 4.5
cm x 2 cm x vertebrae deep on the back,
left side of neck, adjacent to the mid line.
The wound was communicating through
and through to the injury no.1.

Note: One large metallic shot
removed from injury no.1, sealed and
handed over to the constable concerned.

3. Gunshot wound of entry 2 cm
x 1.5 cm x abdomen cavity deep on right
side
front
of
abdomen. Blackening
around the entry on the skin present. The
direction of wound was from front to
back. It was situated at 9 O'clock
position, 2 cm right lateral to umblicus.

4. Gunshot wound of exit 2 cm
x 2 cm x abdominal cavity deep on right
side of the back, adjacent to mid line."
7 All. Rameshwar Vs. State of U.P.
1205

According to the opinion of the
doctor, death was due to shock and
haemorrhage as a result of ante mortem
firearm injuries and the same could have
been caused three-fourth of a day before.

5.
During
the
course
of
investigation,
the
investigating
officer
collected: (i) blood stained mat from the cot
inside the room where the deceased was
shot, of which seizure memo (Ex. Ka-11)
was prepared; and (ii) blood stained earth
and plain earth from the spot, of which
seizure memo (Ex. Ka-12) was prepared. A
custody memo (Ex. Ka-13) in respect of the
torch alleged to have been used to witness
the accused escaping from the spot was
also prepared, as per which, the custody of
the torch, which was of Deshraj and in a
running condition, was handed over to its
owner Deshraj. After the statement of
witnesses were recorded under Section 161
CrPC, the investigating officer (I.O.),
namely, PW-5, submitted a charge sheet
(Ex. Ka-14) against two persons, namely,
Rameshwar (the appellant) and Vinod (coaccused). After taking cognizance on the
charge-sheet, the case was committed to the
court of session. The sessions court by
order dated 11.10.1994 framed charge of
the offences punishable under Sections
449/34 and 302/34 IPC against both the
accused. Both the accused pleaded not
guilty, denied the charge and claimed for
trial.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined five witnesses. Their
testimony, in brief, is as follows:-

7. PW-1- Bhikkan Das (the
informant). He stated that the deceased
Salek Chand is son of his uncle (Chacha);
that the accused Rameshwar and Vinod are
known to him; and that relationship
between Rameshwar and Salek Chand was
not cordial though, he is not aware about
the relationship between Vinod and Salek
Chand. In respect of the incident, he stated
that at the time of the incident he was at his
own house. He heard that his cousin (the
deceased) was shot by someone. He
received information from Dharmo that
Salek Chand has been killed. He stated that
the written report was in his writing and he
had signed it. On this statement of PW-1,
the written report was marked (Ex. Ka.-1).
PW-1 stated that he had not named
Rameshwar (the appellant) in the written
report. At this stage, the prosecution
declared the witness hostile and sought
permission for his cross examination,
which was granted.

During cross examination by
the prosecution, PW-1 stated that he had
studied upto Class-X. He admitted his
signature on Ex. Ka-1. He also admitted
that in his report, he had mentioned that
accused appellant Rameshwar and another
person with country made pistols in their
hand were witnessed scaling the eastern
wall of deceased's house and going towards
south. He also admitted that the I.O. had
interrogated
him.
The
witness
when
confronted with his statement recorded
under Section 161 CrPC admitted that he
had stated before the I.O. that on
12.04.1993 while his cousin Salek Chand
(the deceased) was in his house, watching
TV, at about 8 pm, 2-3 gunshots were heard
coming from the house of Salek Chand
upon which neighbours Jitendra (PW-2),
Deshraj and Dharmo came running to the
spot to witness Rameshwar (the appellant)
and another person scaling the eastern wall
of the house and escaping towards south;
and that, about two years before the
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
incident, the deceased and Rameshwar had
a scuffle, which was settled by intervention
of the villagers. PW-1 stated that whatever
he had told to the I.O. was on the basis of
information received by him. He also stated
that the written report was scribed by him
in the village and was handed over to the
police for registration of a first information
report.

During cross examination at the
instance of co-accused Vinod, he feigned
ignorance that the deceased Salek Chand
was challaned for an offence. He also
feigned ignorance that Salek Chand was
made an accused in a case of firing at the
police. He also feigned ignorance in respect
of recovery of a country made pistol from
Salek Chand and registration of a case
under Section 25 of the Arms Act, against
him. He, however, admitted that to his
knowledge there is no other person by the
name of Salek Chand son of Buddhu in the
village. He admitted that in the village one
Raja Baniya was killed but he denied that
in connection with that murder, Salek
Chand was arrested by the police. He
feigned ignorance that Salek Chand (the
deceased) had enticed away a girl from
village Kukanpur. He denied the suggestion
that the said girl is yet to be recovered. He
claimed that he has no knowledge that
Salek Chand is a history sheeter.

During cross examination at the
instance of Rameshwar (the appellant),
PW-1 stated that he had not witnessed the
incident and had arrived at the spot after
about half an hour at 8.30 pm. He stated
that he is not aware whether at the time
when he arrived at the spot, there was any
electric light in the house of Salek Chand.
He stated that he is not aware whether
Salek Chand had an electricity connection
though he admitted that the night was dark.
He stated that at the spot, with him, there
were Dharmo and 2-3 other persons. He
stated that whatever he had written in the
report was on the information received
from Dharmo. He stated that the report was
scribed while sitting in the house of Salek
Chand. He stated that he must have taken
15-20 minutes to write the report; and that
he reached the police station by about 10 or
11 pm. He stated that at the time of lodging
the report, the Pradhan had accompanied
him to the police station along with other
persons though he does not remember their
names. Immediately thereafter, he stated
that he went to the police station alone,
whereas others were outside. He stated that
soon after registration of the report, his
statement was recorded by the I.O. On
further probe, PW-1 stated that Dharmo
had not disclosed the name of any person
to him and he had also not disclosed the
name of any person to the I.O.

8. PW-2 - Jitendra. PW-2 stated that
he knows Rameshwar (the appellant) and
Vinod as they are residents of the same
village where he resides. He stated that
there was enmity between Rameshwar (the
appellant) and Salek Chand. 2-21⁄2 years
before the incident, there was a scuffle
between them. He stated that there was also
a talk in the village that Vinod's aunt
Shimla had illicit relations with Salek
Chand and because of that, Vinod (coaccused) was inimically disposed towards
Salek Chand. He stated that Salek Chand
was unmarried. With regard to the incident,
PW-2 stated that at about 8 pm, while he
was having dinner at his house, he heard
gun shot noise coming from the house of
Salek Chand. He ran towards the house of
Salek Chand. He saw Rameshwar firing a
gunshot at Salek Chand. At that time, Salek
Chand was in his house. He stated that
there was electric light in the house of
7 All. Rameshwar Vs. State of U.P.
1207
Salek Chand. With Rameshwar, he saw
Vinod as well. After firing the shot,
Rameshwar (the appellant) and Vinod (coaccused) escaped with their country made
pistols by scaling the eastern wall of
deceased's house. He stated that before the
accused could escape, witnesses Deshraj
and Dharm Singh had also arrived at the
spot. They also witnessed the incident. He
stated that Deshraj had a torch with him.
He stated that Salek Chand died on the
spot. At that time a television and a fan
were switched on in his room.

During cross examination at the
instance of Rameshwar, PW-2 stated that
his house is about 20 paces away from the
house of Salek Chand (the deceased); that
the way to Salek Chand from his house
runs east-west; that on hearing gunshot he
did not even take a minute to reach the
spot; that he witnessed Rameshwar and
Vinod scaling the wall and escaping; at that
time, there was electricity light though the
night was dark; that he was the first to
arrive at the spot; that the informant
had also arrived thereafter, but must
have arrived 10-5 minutes later; that
before the informant, Deshraj and
Dharmo had arrived; that he had entered
the room of Salek Chand where he was
shot at; there he noticed that he was shot
twice; that the deceased was lying on the
cot; that blood had spilled on the cot as
well as on deceased's clothes; that blood
had not spilled anywhere else except the
cot and the clothes; that Salek Chand used
to reside alone; that when he entered the
room of Salek Chand, he noticed that
empty utensils were there suggesting that
he had had his dinner; and the TV was
switched on. He could not recall as to
which programme was running on the TV.
He stated that when several people arrived
at the spot, someone had switched off the
TV. He also stated that he could not notice
any metered electricity connection but there
appeared use of electricity with the aid of a
cable. On further questioning, he stated that
the accused had scaled the eastern wall, the
height of which would have been 2 1⁄2 to 3
feet high; that at the time of scaling the
wall, accused persons' face was not
towards him (PW-2) rather, their waist
could be noticed. PW-2 stated that after
witnessing the incident, he went back
home. On the same day the I.O. had arrived
at the spot by about 10-11 pm. He stated
that the I.O. stayed there for about an hour.
He met the I.O. that day itself. His
statement was also recorded by the I.O. He
stated that he had narrated the incident to
the I.O. and had also disclosed to the I.O.
the place and the spot from where the
accused had escaped. He again reiterated
that his house is at a distance of 20 paces
from the spot. On further questioning, PW2 stated that he is not aware whether the
I.O. had prepared the site plan on that day.
He stated that he had disclosed to the I.O.
the location of his house. At this stage, the
witness stated that he saw the accused
firing the gunshot. He stated that he had
disclosed to the I.O. about this fact.
Upon this statement of the witness, he
was
confronted
with
his
previous
statement recorded under Section 161
CrPC which was read out to the witness
and it was pointed out to the witness that
in his previous statement he had not
disclosed that he had seen the accused
firing gunshot. On being confronted with
his previous statement, the witness stated
that if that was not written while
recording his statement under Section
161 CrPC, he cannot tell the reason for
the same. On further cross examination,
PW-2 stated that in connection with the
incident of scuffle between the deceased
and Rameshwar (the appellant), there is no
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
litigation
pending.
He
denied
the
suggestions that he made false statement
against Rameshwar on account enmity; that
he had not witnessed the incident; that his
house is at a distance of 200 paces from the
house of Salek Chand; and that in the night
of the incident there was no electric light in
the house of Salek Chand.

During cross examination at the
instance of co-accused Vinod. PW-2
reiterated that at the time when the gunshot
was heard, he was having dinner in his
house and at that time Salek Chand was in
his own house. He was confronted with his
previous statement wherein he had stated
that he heard a gunshot noise coming from
the house of Salek Chand. In response to
which, he stated that his statement that
Rameshwar (the appellant) fired a shot at
Salek Chand is not false. He stated that his
statement that while he was having dinner
in his house, he heard gunshot noise
coming from the house of Salek Chand;
upon hearing that noise, he ran towards the
house of Salek Chand where he saw
Rameshwar firing a shot at Salek Chand, is
correct. He stated that the fact is that he
was having dinner in his own house when
he heard a gunshot noise; when he arrived
at the spot from where the noise came, he
saw Rameshwar firing at Salek Chand,
which was the second shot. He stated that
only two gunshot injuries were found on
the body of Salek Chand. He stated that
Salek Chand was watching television in his
room and his house is a one room house in
front of which there is a courtyard. He
stated that there is only one door in the
room of his house and from that door,
Rameshwar, after firing gunshot, had
effected his escape. He stated that he made
an effort to catch Rameshwar while he was
escaping but if he had done so, he would
have been shot by Rameshwar. He stated
that Deshraj and Dharmo Singh had not
arrived at the spot before him but they
arrived immediately after he arrived at the
spot. He stated that when Deshraj and
Dharmo
arrived
by
that
time
Rameshwar had already scaled the wall.
He stated that he, Deshraj and Dharmo had
witnessed Rameshwar scaling the wall.
Deshraj had a torch with him.

On further questioning at the
instance of co-accused Vinod, PW-2
stated that he saw Rameshwar firing at the
neck of the deceased from a close range. At
this stage, on further probe, PW-2 stated
that Deshraj and Dharmo had arrived
with him at the house of Salek Chand.
PW-2 stated that when the police had
arrived, they had called him over to the
house of Salek Chand; that was the second
time, he visited the house of Salek Chand.
At that time, Dharmo, Deshraj and Bhikkan
Das (the informant) were there at the spot.
He stated that what he had witnessed, he
told to the police. He also stated that he had
informed the I.O. that there was gossip in
the village that there was enmity between
Vinod and Salek Chand on account of illicit
relations of the aunt (Chachi) of Vinod with
Salek Chand. At this stage, PW-2 admitted
that he had not informed Bhikkan (the
informant) that Vinod had fired a shot at
Salek Chand in his presence. However,
PW-2 maintained that Vinod had fired a
shot at Salek Chand in his presence
which hit Salek Chand on the neck,
whereas Rameshwar had fired shot at
Salek Chand which hit him on the
abdomen. He stated that Vinod and
Rameshwar both had fired shot at Salek
Chand while he was there. He denied the
suggestion
that
neither
Vinod
nor
Rameshwar fired shot in his presence and
that he had not witnessed Vinod escaping
from the spot. He also denied the
7 All. Rameshwar Vs. State of U.P.
1209
suggestion that he is telling lies on account
of village party bandi.

9. PW-3- Dr. S. Tandon (Autopsy
Surgeon). He stated that on 13.04.1993 he
was
posted
at
District
Hospital,
Muzaffarnagar when the body of the
deceased was brought to him for autopsy in
a sealed state. He proved the autopsy report
and the injuries noticed by him therein. On
the basis of his statement, the autopsy
report was exhibited as Ex. Ka-2. He stated
that injury nos.1 and 3 noticed by him were
firearm injuries and were entry wounds.
Those injuries were possible to have been
caused at 8 pm on 12.04.1993. He also
stated that death of the deceased might
have occurred three-fourth of a day before
the autopsy. He denied the suggestion that
he prepared the autopsy report on the basis
of suggestions given by the constable
concerned.

10 . PW-4- H.C. Bhagwat Singh. He is
the constable who prepared the GD entry of
the written report. He proved the GD Entry
No.25 made at 21.25 hrs on 12.04.1993 in
respect of the written report. The copy of
the GD entry was exhibited as Ex. Ka-4.
He also proved preparation of the chik FIR,
which was marked Ex. Ka-3.

During his cross examination,
he denied the suggestion that the first
information report was written at his
instance. He stated that the informant had
brought the written report. He stated that he
could not remember whether the informant
had arrived on foot or by some other mode.

11.

PW-5-
Ram
Singh
Pal
(Investigating Officer). He proved the
various stages of investigation and stated
that
after
registration
of
the
first
information report he had visited the spot
and had noticed the body of Salek Chand
lying on a cot inside the room of his house.
He
proved
conducting
of
inquest
proceeding as also preparation of papers in
connection with inquest and autopsy. He
stated that on 13.04.1993 he recorded the
statement of Jitendra, Deshraj and Dharmo,
who were eye witnesses as per the first
information report, and inspected the spot
in light of electric bulb as well as lantern
and prepared a site plan of the spot, which
was marked Ex. Ka-10. He proved
collection of blood stained Dari (mat) from
the cot as well as plain earth and blood
stained earth from the spot. The seizure
memos thereof were marked Ex. Ka-11 and
Ex. Ka-12, respectively. He stated that
efforts were made to arrest the accused.
The accused Rameshwar was arrested on
14.04.1993 whereas the accused Vinod
surrendered on 26.04.1994 in court. He also
stated that the witness Deshraj had shown
him the torch in the light of which he had
witnessed the accused scaling the wall. He
stated that the torch was found in a working
condition and custody memo in respect
thereof was prepared, which was marked
Ex. Ka-13. He also proved submission of
charge sheet, which was marked Ex. Ka-14.
He produced the blood stained earth, plain
earth/ the piece of mat collected by him.
They were made material exhibits.

During cross examination at the
instance of co-accused Vinod, PW-5
stated that he recorded the statement of
informant on 12.04.1993 at 21.50 hrs, soon
after registration of the case. He recorded
the statement of Deshraj at 0.45 hrs on
13.04.1993. He also recorded the statement
of witness Dharmo Singh in the night itself
at 01.00 hrs. And at 0.30 hrs, on
13.04.1993, he recorded the statement of
Jitendra. He stated that the FIR was
registered at the instance of PW-1 at 21.25
hrs on 12.04.1993 and, whereafter, the
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
police team left to go to the spot at about
22.00 hrs. He stated that he arrived at the
spot by about 22.10 hrs on 12.04.1993
itself.

During cross examination at the
instance of accused Rameshwar, PW-5
stated that at the time of preparing the site
plan he had not shown the electricity wires
and the direction in which they were placed
but had disclosed in the site plan the
presence of an electricity bulb, TV and a
fan in the room where the incident
occurred. He stated that when the police
team arrived at the spot, the electricity bulb
was switched on but the TV and fan were
off. He stated that the witnesses had told
him that the TV and the fan was also on at
the time of occurrence. He stated that the
witnesses informed him that some person
may have switched off the TV and fan. He
stated that he is not aware about the
electricity connection in the premises
where
the
incident
occurred.
PW-5
specifically stated that witness Jitendra
(PW-2) had not disclosed to him that he
had witnessed the accused firing shots at
the deceased. He stated that PW-2 had
only informed him that he had seen the
accused coming out of the room; scaling
the eastern wall and escaping with
country made pistols in their hand. He
stated that he did not prepare any seizure
memo of the TV, fan, stool or the bulb that
was in the room but their presence was
disclosed in the site plan prepared by him.
In respect of the height of the wall which
was allegedly scaled by the accused to
effect their escape, PW-5 stated that it must
be 3 feet high though its height was not
mentioned in the index of the site plan
prepared by him. He stated that the
distance between point ''F' and ''E'
mentioned in the site plan would be
around 35 paces. He stated that point ''F'
shown in the site plan is the place from
where witnesses witnessed the accused
scaling the wall while effecting their
escape with the help of torch light. On
being specifically questioned with regard
to the distance between the wall and
point ''F', PW-5 stated that although
that distance is not mentioned in the site
plan but it must be around 14-15 paces.
PW-5 stated that when the witnesses saw
the accused scaling the wall while they
were at point ''F', the witnesses could notice
the accused from the side (waist) but,
immediately thereafter, he clarified by
stating that when the accused were coming
out of the door, the witnesses could have
noticed the face also. He denied the
suggestion
that
he
completed
the
investigation while sitting at the police
station.

STATEMENT UNDER SECTION 313
CrPC

12. After the prosecution evidence
was
closed,
the
incriminating
circumstances appearing in the prosecution
evidence were put to the accused. As coaccused Vinod has been acquitted by the
trial court, we do not propose to notice the
statement of co-accused Vinod recorded
under Section 313 CrPC. In so far as the
appellant Rameshwar is concerned, in his
statement recorded under section 313 CrPC
he denied the incriminating circumstances
appearing in the prosecution evidence
against him and claimed that he has been
falsely implicated on account of village
party bandi.

TRIAL COURT FINDING

13. The trial court by placing reliance
on the statement of PW-2 convicted the
accused-appellant
Rameshwar. Accused
7 All. Rameshwar Vs. State of U.P.
1211
Vinod was extended the benefit of doubt as
he was not named in the first information
report and that his name surfaced only in
the statement of witnesses recorded during
investigation.

SUBMISSIONS OF LEARNED
COUNSEL FOR THE APPELLANT

14. Questioning the judgment and
order of the trial court, the learned counsel
for the appellant submitted that this is a
case where the incident is of night; that the
deceased was shot dead inside the room of
his house; that none of the witnesses were
residing with the deceased; that the site
plan prepared by the I.O. did not disclose
the presence of any external light; that the
site plan also does not disclose that the
house of PW-2 was adjoining the house of
the deceased; that the first information
report disclosed that the witnesses had only
seen the accused escaping from the spot;
that the other two witnesses whose names
were mentioned in the first information
report have not been examined by the
prosecution; that the torch in the light of
which the accused were seen escaping was
of Deshraj, who has not been examined;
that the statement of PW-2, the sole eye
witness examined, is not wholly reliable;
and
that
PW-2
not
only
makes
improvement from his previous statement
recorded under Section 161 CrPC but also
makes improvement during the course of
his deposition in court, therefore, it is a fit
case where the accused-appellant be
extended the benefit of doubt, particularly,
when there is no corroboratory evidence in
respect of participation of the accusedappellant in the crime. It has been
submitted that the motive for the crime is
not proved beyond doubt, inasmuch as, the
motive for the crime shown in the first
information
report
is
in
respect
of
animosity arising from a scuffle between
the deceased and the accused-appellant that
took place two years before the incident.
Whatever animosity that might have been
there, arising from that incident, stood
erased with passage of time as also that the
two had settled their differences on the
intervention of villagers. Lastly, it was
contended that since it is a case based on a
single witness testimony and the informant,
namely, PW-1, has also stated that he had
not named the accused-appellant in the
FIR, the appellant is entitled to the benefit
of doubt.

SUBMISSIONS ON BEHALF OF THE
STATE

15. Per contra, learned AGA
submitted that the first information report
of the incident was promptly lodged; that
there is no suggestion to the prosecution
witnesses including the informant that the
incident was of some other time than what
is alleged in the first information report;
that there is no suggestion with regard to
the ante-timing of the first information
report; that, admittedly, two gunshots were
fired therefore the witnesses could have
arrived at the spot after hearing the first
gunshot and it is highly probable that the
witnesses, upon arrival, noticed the accused
exiting the the room where the deceased
was shot and while they were scaling the
wall of the house; that, admittedly, there
was a bulb lit in the room and there was
also a torch hence there was sufficient light
to witness the accused escaping soon after
the incident; that since no animosity is
suggested between the accused-appellant
and the witness PW-2, the trial court was
justified
in
convicting
the
accusedappellant as he was named in the first
information report and also in the statement
recorded during the course of investigation
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
and further, his participation in the crime
was proved by the testimony of PW-2.
Learned AGA, therefore, prayed that the
appeal be dismissed and the conviction and
sentence recorded by the court below be
affirmed.

ANALYSIS

16.

Having
noticed
the
rival
submissions and having noticed the entire
prosecution evidence, before we proceed to
evaluate the prosecution evidence we may
remind ourselves that this is a case where
the prosecution relies on a sole witness
testimony. The law is settled that on the
testimony of a sole witness conviction can
be sustained provided the witness is wholly
reliable and his testimony is unimpeachable
and of a stellar quality.

17. In Anil Phukan vs State Of
Assam, (1993) 3 SCC 282, the Supreme
Court held as follows:-

"........ Conviction can be based
on the testimony of a single eye-witness and
there is no rule of law or evidence which
says to the contrary provided the sole eye
witness passes the test of reliability. So long
as the single eye-witness is a wholly
reliable witness the courts have no
difficulty in basing conviction on his
testimony alone. However, where the single
eye- witness is not found to be a wholly
reliable witness, in the sense that there are
some circumstances which may show that
he
could
have
an
interest
in
the
prosecution, then the courts generally insist
upon some independent corroboration of
his testimony, in material particulars,
before recording conviction"

18. In State of Rajasthan v. Bhola
Singh, AIR 1994 SC 542, the aforesaid
statement of law was reiterated in the
following words:

"It is well settled that if the case
rest only on the sole evidence of the eyewitness, such testimony should be wholly
reliable."

19.

In
Bhimapa
Chandapa
Hosamani
and
others
v.
State
of
Karnataka, (2006) 11 SCC 323, the apex
court reiterated the law in the following
words:-

"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."

20. In a recent decision in the case of
Jagdish and others v. State of Haryana,
(2019) 7 SCC 711, again, the Supreme
Court reiterated the law by observing
"conviction
on
basis
of
a
solitary
eyewitness is undoubtedly sustainable if
there is reliable evidence cogent and
convincing
in
nature
along
with
surrounding circumstances."

21. Having noticed the observations
of the Supreme Court on the issue as to
when on a single witness testimony
7 All. Rameshwar Vs. State of U.P.
1213
conviction can be sustained, we are of the
view that, though, there is no bar in basing
conviction on the testimony of a single eyewitness but, before doing so, the court must
carefully scrutinise the evidence to be
satisfied that it is free of any blemish or
suspicion, is wholly truthful and appears
natural and convincing, that is, in short, it is
intrinsically reliable, inherently probable
and wholly trustworthy.

22. In the instant case, the first
information
report
was
lodged
by
disclosing the name of three persons,
namely, Jitendra (PW-2), Deshraj and
Dharmo, as witnesses. In his deposition in
court, PW-1, the informant, states that the
information was lodged as per information
received from Dharmo, who has not been
examined.
During
the
course
of
investigation, the torch of Deshraj was
seized and its custody was handed over to
Deshraj. But, surprisingly, Deshraj has not
been examined by the prosecution. The
only witness examined by the prosecution
is PW-2 (Jitendra Singh). In the testimony
of PW-2 what is consistent is that PW-2
was having dinner in his house at the time
when he heard noise of a gunshot. After
hearing the noise of first gunshot, he rushed
to the spot. In his statement before the
investigating
officer,
recorded
under
Section 161 CrPC, the witness had not
disclosed of having witnessed the accused
firing gunshots at the deceased. Rather, he
disclosed about having seen the accused
escaping by scaling the eastern wall of the
house. However, during his deposition in
Court, he makes considerable improvement
by stating that he witnessed firing of
gunshots at the deceased. But, PW-2 is not
consistent even here. At one portion, he
says that after hearing the first gunshot he
arrived at the spot and after his arrival,
Deshraj and Dharmo arrived. Deshraj had a
torch. In this part of his statement, PW-2
stated that after hearing the first gunshot
when he arrived, he saw Rameshwar firing
a second gunshot at the deceased. Later, in
his deposition, PW-2 stated that he
witnessed both shots that were fired at the
deceased. In the latter part of his statement,
PW-2 stated that Vinod fired a shot which
hit the deceased on his side, near the neck
region;
whereas,
the
shot
fired
by
Rameshwar struck the abdomen of the
deceased. At one place, this witness states
that Deshraj and Dharmo had arrived after
his arrival at the spot whereas at another
stage, he states that he, Deshraj and
Dharmo simultaneously arrived at the spot.
Notably, PW-2 was confronted with his
previous statement recorded under Section
161 CrPC where he had not disclosed that
he witnessed the accused firing shot at the
deceased. The investigating officer who
had recorded the statement of PW-2 under
Section 161 CrPC specifically stated,
during his cross examination, as follows:-

^^xokg ftrsUnz us xksyh ekjus okyh
ckr rFkk eqyftekuks }kjk xksyh ekjrs gqos ns[kus
dh ckr ugh crkbZ FkhA ijUrq ;g crk;k Fkk fd
mlus fouksn o jkes'oj dks dejs ls fudy dj
iwoZ dh fnokj dwn dj Hkkxrs gq;s ns[kk Fkk muds
gkFkks es dV~Vs FksA^^

The
inconsistencies
in
the
statement of PW-2, noticed above, in our
view, renders the witness as not a wholly
reliable one.

23. In addition to above, the autopsy
report of the deceased would suggest that
two shots were fired at the deceased from a
close distance. The house of the deceased
was a single room house and in front of that
room there was a courtyard. The site plan
prepared by the I.O., which is at the
instance of the witnesses who witnessed the
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
incident including Jitendra, would suggest
that one set of witness came from east and
the other set came from west. The spot
from where those witnesses witnessed is
shown by point ''F'. In the index of the site
plan ''E' is the point where the witnesses
heard the gunshot. In the testimony of PW5, the distance between ''E' and ''F' is 35
paces. Point E is not located inside the
house of any one but falls in the lane. From
the testimony of PW-2 it is clear that he
was having dinner in his house when he
heard first gun shot. Whereafter, he rushed
to the spot. The house of PW-2 is not
shown in the site plan therefore, if point ''E'
is the spot where the witness heard the shot,
it would be the point where he heard the
second gun shot and not the first because,
as per the evidence, the first was heard
while the witness was having dinner in his
house. The point ''F', as per the testimony
of PW-5, is 14-15 paces away from the wall
scaled by the accused to escape from the
spot. Notably, the height of that wall is 21⁄2
to 3 feet, which means that it would not
take much effort to scale it. From the
testimony of PW-2, it appears, the place
from where he witnessed the accused
scaling the wall he could notice only the
side profile of the accused, which is evident
from his statement extracted below:-

^^tc eqyfteku nhokj dwn dj Hkkx
jgs Fks rc budh esjh rjQ dej Fkh eqag ugh
FkkA^^

24. To get out of this situation, the
I.O. in his testimony sought to suggest that
when the accused were exiting the room by
using the door, their face would have been
towards the witnesses thus the witnesses
had the opportunity to notice the face of the
accused. Assuming that this was the case,
then another question that would arise is
whether a man standing in darkness and
looking towards light, could visualize the
face of a person, which is towards
darkness, when light is falling on the back
of that person. Importantly, presence of
light is not shown outside the room. Bulb
shown is inside the room, which had one
door. Notably, it is not disclosed that the
room had a window. Thus, when the
accused would have exited that door, light
of the bulb, if any, would be falling on their
back.