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Judgment
Per Sujit Narayan Prasad, J.
The instant appeal is directed against the Judgment of conviction dated 17.06.1998 and order of sentence dated 18.06.1998, passed by learned 5th Additional Sessions Judge, Hazaribagh, in Sessions Trial No.81 of 1996 arising out of Barkagaon P.S. Case No.67 of 1995 corresponding to G.R. No.1809 of 1995 registered under Sections 302/34 of the Indian Penal Code by which the appellant has been convicted under Section 302/34 of the Indian Penal Code and has been directed to undergo rigorous imprisonment for life for the offence under Section 302/34 of the I.P.C.
At the outset it needs to mention that during the pendency of appeal, appellant Neecha Sao had died. Hence, by order dated 11.09.2026, a Co-ordinate Bench of this Court had abated his appeal. The order dated 11.09.2026, is being quoted herein below-
“Order No. 18/Dated: 11th September, 2026
1.Mr. Pankaj Kumar, learned Public Prosecutor has submitted that in pursuance of order dated 21.08.2026, an affidavit has been filed in the Court today itself stating therein that the appellant no. 1 Neecha Sao had died on 18.03.2006. It has further been submitted that appellant no. 2 Chopal Sao, the son of the appellant no. 1 Neecha Sao, had made an application for issuance of death certificate of his father, aged about 85 years, which is yet to be supplied. Let the affidavit be kept on record.
2.The aforesaid submission has been made based upon the application submitted for issuance of death certificate, the enquiry report for getting the issue of death registered and the statement of witnesses.
3.No application has been filed on behalf of legal heirs of the appellant no. 1 for substitution to pursue as required under Section 394 of the Cr.P.C. corresponding to Section 435 of the BNSS.
4.This Court, considering the statement made in affidavit dated 11.09.2026, is of the view that the appeal, so far as appellant no. 1 namely, Neecha Sao, is to be abated.
5.Accordingly, the appeal, so far as appellant no. 1 namely, Neecha Sao is concerned, stands abated. 6. The appeal is, thus, confined to appellant no. 2 namely, Chopal Sao.
7.Heard Mrs. Saman Ahmad, learned Amicus Curiae for the appellant and Mr. Pankaj Kumar, learned Public Prosecutor for the State.
8.Argument concluded.
9.Judgment Reserved. “
Now this Court proceeds to scrutinize the alleged culpability of the surviving appellant, namely, Chopal Sao.
The prosecution story in brief as per the First Information Report reads hereunder as:-
The case of the prosecution is based on the fardbayan of the Informant Lukan Sao (PW-1), son of Late Jhaman Sao of village Pankari Barwadih, Police Station Barkagaon, District Hazaribagh, recorded by the S.I. Anuj Kumar of Barkagaon Police Station on 02.11.1995 at 16:30 hours at village Pakri Barwadih. Lukan Sao (P.W.-1), the Informant has alleged in his fardbaya that on 02.11.1995 at about 8:00 A.M., he had gone to his field towards West of Mandir Pakri Barwadih at Gosaithan and his father Jhaman Sao (deceased) had told him that he would come along with the breakfast in the field.
It has been further alleged that while the Informant was working in his field at about 12 O' Clock in the afternoon, his wife Jirwa Devi(PW-7), who was cutting paddy along with his mother in the Eastern side of the field of Gossithan Mandir, reached there and told him that his brother Mahabir Sao (PW-5) had come from the house and had informed that when he came to his house from the school at about 11:00 A.M. and as soon as he entered the house after opening the Eastern door of the house he found his Uncle Nicha Sao, dragging his father Jhaman Sao (deceased) inside the room and he told him to run away otherwise he would be killed.
It has further been alleged that when Nicha Sao was dragging his father inside the room at that time Chopal Sao (appellant herein) was watching standing on the Northern side of the gate.
It has been alleged that on getting this information the Informant, his wife, his mother and his brother returned to their house and found his father lying dead in the room. He called his father but when his father did not respond the Informant with the help of local people brought him in the aangan from the room and found him dead. His father had ligature mark in his neck and there were scratches in the right side of the neck. They saw a roll of plastic rope about 2½ feet long stuck in the collar of the shirt of the deceased.
It has further been alleged that on account of land dispute, relationship of the deceased with the accused were strained and on previous occasions also accused Nicha Sao had threatened his father (deceased) with dire consequences.
On the basis of fardbayan of the informant, a formal F.I.R. being Barkagaon P.S. Case No.67 of 1995, was registered against accused Nicha Sao and Chopal Sao under Section 302/34 of the Indian Penal Code and the police took up the investigation of this case.
After completion of investigation, the Investigating Officer submitted charge-sheet against the accused persons. The cognizance of offence was taken against the accused persons and the case was committed to the court of Sessions. Charges were framed against the accused persons/appellant herein, under Sections 302/34 of the Indian Penal Code.
The prosecution has altogether examined 15 witnesses to prove its case. They are -
PW-1 - Lukan Sao (the Informant);
PW-2 - Krishna Kumar (Witness of Inquest report);
PW-3 - Kamlesh Kumar (Tendered);
PW-4 - Mohini Devi (Wife of the deceased);
PW-5 - Mahabir Kumar Sao (11 years old son of the deceased and the sole alleged eye witness);
PW-6 - Shanti Kumari (Daughter of the deceased);
PW-7 - Jirwa Devi (Tendered and Wife of PW-1);
PW-8 - Sarya Sao
PW-9 - Sugan Sao (Tendered);
PW-10 - Kinu Sao (Hostile);
PW-11 - Anuj Kumar (Investigating Officer);
PW-12 - Dr. Tejpati Singh (Doctor);
PW-13 - Constable 225, Shatrughan Sao;
PW-14 - Baijnath Sao
PW-15 - Jhari Sao (Hostile)
It will be relevant to mention that out of the 15 witnesses, PW-3, PW-7 and PW-9 have been tendered, PW-10 and PW-15 have been declared hostile.
The Defence has not examined any witness in support of their case.
After the closure of prosecution evidence, the statement of the accused persons/appellant herein, under Section 313 Cr.P.C. was recorded, in which they denied the charges and claimed to be tried
The learned trial court, on appreciation of the evidences produced on behalf of the prosecution, has found the allegation proved beyond all reasonable doubt and accordingly, passed the judgment of conviction and order of sentence which is impugned in this appeal.
Argument advanced on behalf of the appellant
Learned counsel for the appellant has submitted that the impugned Judgment of conviction and order of sentence passed by the Trial Court cannot be sustained in the eyes of law for the following reasons:-
The impugned judgement is contrary to law and against the weight of evidence on record as such is liable to be set aside.
The learned trial court has committed grave error in convicting and sentencing the appellant, although the prosecution has miserably failed to prove its case and the charges framed against them.
The learned trial court ought to have considered that the Informant PW-1 in his evidence at para 3 of the examination in chief has stated that his wife (PW-7) had told him about the alleged occurrence but his wife (PW-7) has been declared tendered and she has not stated in her evidence that she had told to her husband (PW-1) about the alleged occurrence and this major contradiction creates serious doubt in the very prosecution case.
The learned trial court ought to have considered that there is much contradiction in the statement of the Informant and the Investigating Officer with regard to the receiving of the first information about the alleged occurrence. The Informant has stated that he himself had gone to the Police Station and informed the Police but on the other hand the Investigating Officer has stated that he heard rumour about the alleged occurrence then he after making the Station Diary entry had gone to the place of occurrence and as such this contradiction makes the entire prosecution case doubtful.
The learned trial court ought to have considered that the Informant PW-1 has stated in his evidence that when he returned to his house, he found several persons were also present there but the sole alleged eye witness PW-5 has stated that there was no any other person present in the house when they returned to the house. This contradictory statement of the witness of the case creates serious doubt on the prosecution case.
The learned trial court has wrongly convicted the appellant only on the basis of sole alleged child eye witness (PW-5) who is aged about only 11 years and he could very well be taught and tutored by the interested persons and as such the learned trial court should not have given much emphasis and should not have considered the evidence of this witness.
Learned counsel has further submitted that it is also a well settled law that there should be a closer scrutiny of the evidences of a child witness before the same is accented by a court of law and it can only be accepted with greatest caution. In the present case also the learned trial court ought to have considered that PW-5 is unable to tell the name of his class teacher, principal of the school and his classmates who sent him to bring a spade from his house and in such a circumstances the learned trial court must have come to the conclusion that PW-5 is not a competent witness and his evidence must not have been considered by the learned trial court.
Learned counsel appearing for the appellant has submitted that in para 24 of the impugned judgement the learned trial court has also accepted that there is contradiction in the statement of the PW-5 but even then, the learned court has surprisingly accepted the evidence of this child witness and has wrongly convicted the appellant on the basis of evidence of the child witness.
It has been submitted that the learned trial court ought to have considered that when PW-5 saw that the Nicha Sao(since dead) dragging his father, he did not raise alarm and this fact clearly indicates that in fact neither he was present at the place of occurrence nor he actually saw the occurrence.
It has also been submitted that the learned trial court ought to have considered that according to the story of prosecution that at the time of the alleged occurrence PW-5 had come to his house during his school hours to bring a spade cannot be accepted and this fact has not been corroborated by any other witness too and PW-5 himself also could not say that who sent him to bring the spade.
The Investigating Officer (PW-11) has stated in his evidence that he heard the rumour about the alleged occurrence and then he made the Station Diary entry and went to the alleged place of occurrence but no such Station Diary was produced before the Court and as such the learned trial court ought to have drawn an adverse inference against the prosecution case and the benefit of doubt should have been given to the Appellant.
Learned counsel has submitted that the learned trial court ought to have considered that although the Investigating Officer has accepted and stated that he had made the Station Diary entry but the learned trial court instead of accepting the statement of this Witness, without any rhyme or reason and without any basis and violating his jurisdiction has given his own findings that no Station Diary entry was made by the Investigating Officer.
Learned counsel for the appellant has submitted that the learned trial court has accepted in para 25 of its judgement that there was lacuna in the investigation of the case and as such benefit of doubt should have been given to the appellant.
Learned counsel has submitted that the statements of the appellant under Section 313 Cr.P.C. were recorded in most illegal manner and no question with regard to killing of the deceased by pressing his neck by a rope, has been asked to the appellant and hence such evidence cannot be used against the appellant and as such entire prosecution case fails against the appellants.
Learned counsel has further submitted that the learned trial court has misunderstood the case, misread the evidence, misconstrued the law, resulting into grave miscarriage of justice.
The judgment of conviction and sentence passed by the learned court below is otherwise bad in law and is fit to be set aside.
The learned counsel for the appellant, based upon the aforesaid ground, has submitted that the trial court has not taken into consideration of the aforesaid facts as such impugned judgment requires interference, hence not sustainable in the eyes of law.
Argument advanced by the learned counsel for the State
While defending the judgment of conviction learned counsel appearing for the State raised the following arguments in response to the grounds as referred hereinabove -
Learned counsel appearing for the State has submitted that the contentions advanced on behalf o the appellant are not tenable because evidence of the prosecution is consistent and has proved material particulars of this case.
It has been further stated that the infirmities pointed out by the learned counsel for the appellant in the evidence of PW-5 are all imaginary. The evidence of PW-5 is very consistent with the facts of this case and it cannot be disbelieved.
Learned Public Prosecutor has further submitted that the defence has not produced a definite case of its own and it has changed its version from time to time only to suit its choice. This also goes averse to the defence version.
It has been further contended that though it has been held from time to time by the several decisions of the Hon'ble High Court and Hon’ble Supreme Court that the evidence of children is notoriously dangerous unless material available and unless received before any possibility of coaching is eliminated and conviction can lie even on the evidence of solitary child witness.
It has further been stated by the learned State counsel that all the witnesses P.W.-1 and P.W.-4 have deposed about the previous enmity between the present appellant and the deceased regarding land dispute.
The prosecution has successfully proved the charges leveled against the appellant, beyond the all shadows of reasonable doubts, hence, order of conviction requires no interference.
Learned counsel appearing for the State, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed.
Analysis
We have heard learned counsel for the parties, gone through the testimonies of the witnesses as available in the LCR including the exhibits as also the finding recorded by the trial court in the impugned judgment.
This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
In this case the prosecution has examined altogether 15 witnesses. The extracts of their depositions are being referred herein.
PW-1 - Lukan Sao, is the informant of the case. He has stated in his evidence that incident occurred on 02.11.1995. His father, Jhamman Sao, was at home, while he, his mother Mohini Devi, wife Jirwa Devi and sister Shanti Kumari had gone to the field for work and his two younger brothers Mahabir Kumar Sao and Tilkanath Sao, had gone to school. His mother and wife were harvesting paddy in one field, while he was digging peas plant in another field. His father had told that he will bring breakfast for all in the field. Informant further stated that his brother Mahavir Sao, upon returning from school, came at the field and informed his mother that he saw his uncle Neecha Sao, pushing the father inside the house, while Chopal Sao(appellant herein) was standing at the door and when his brother Mahavir requested to release his father, then uncle Neecha Sao, threatened him and he was driven away. Then his wife came at the field and conveyed this information to him.
Informant further stated that they ran towards the house and in the house, they found his father lying in the straw shed. Attempts were made to wake him, but he could not move, then, he was lifted and placed on a cot in the courtyard, but his father had died. A rope mark was observed on the right side of the neck and a plastic rope was found tied around the neck.
Informant had further stated that for the last one year, demands were being made by his uncle for land adjacent to the well, to build a house. A dispute had also occurred three days prior to the occurrence between his father and uncle regarding raising a wall. A year earlier, his mother was struck in the stomach by uncle with a stick, but villagers had told not to report at the police station.
Informant had further stated that police arrived at about 4 p.m., and recorded his statement and he and Gulab Chand Sao, signed on it and on identification signature were marked as Ext.-1 and Ext.-1/1 respectively. The rope was seized, by the daroga je and the body was sent to Hazaribagh for post-mortem the next morning.
In his cross-examination, informant stated that on the day of the incident, his mother and wife had prepared the food and after eating, they left the house at eight o'clock and only his father remained at home. His two younger brothers had left for school with us. His brothers' school is about 75-80 yards from their house. He did not know the headmaster's name. He has stated that when he reached home, there was a crowd in the house and about 17/18 people had gathered. He and another man carried his father outside. He does not remember who that man was. His father was lying face down in the room. There was only straw in the room. After seeing him, he immediately took his father out of the room.
PW-2 Krishna Kumar Sao, is witness to inquest report. He has stated in his evidence that Jhamman Sao of Pakri Barwadih had died one and half year ago. Police came to his house and found his body lying on a cot in the courtyard. Inspector made the description of the corpse in his presence and Kamlesh Sao and they had signed on the paper. On identification, signatures on the inquest report were marked as Ext. 1/2 and 1/3 respectively.
PW-4 Mohni Devi, is the wife of the deceased. She had stated in her evidence that about a year and a half ago, it was the month of Kartik and in the morning, she, her daughter Shanti, daughter-in-law Jirva Devi and her son Lukan Sao, had gone to east of the village temple to harvest paddy and they had left home together. Her son Lukan Sao went to the pea field located at the west of the temple. In the house her two sons, Mahavir and Tila Sao, and their father, Jhaman Sao, remained at home. Both sons had stayed home to go to school and her husband Jhaman, had told that after sending the children to school, he will come to the field taking their breakfast. When they left, he was spreading straw in the house. About an hour and a half later, her son Mahavir came running and said that dada Neecha Sao and his son Chaupal Sao were beating the father and forcing him into a room. When he objected, they threatened to kill him and chased him away. Hearing this, she sent her daughter-in-law to the pea farm to inform her son, and she returned home with her son, Mahavir. Her daughter Shanti, son Lukan and her daughter-in-law Jirva, also followed.
She further stated that upon arriving home, she found her husband lying dead in room. Her husband was lifted and placed on a cot in the courtyard; she saw that a plastic rope was tied around his neck. Her husband was killed by her brother-in-law Neecha Sao and his son Chopal Sao. She has stated that previously, there was a land dispute between her brother-in-law (bhaisur) and her husband.
In her cross-examination, she has stated that her son went to the farm and informed her. She and Mahavir came home together on foot. Her son, daughter-in-law and others came later. Her son and daughter-in-law came half an hour after she arrived. She first saw her husband when she entered the house alone. His body was laying east-west and his forehead was facing east. The body was in room. The room had no door; its entrance was to the north.
PW-5 Mahavir Kumar Sao, is the son of the deceased. He has stated in his evidence that on the day of occurrence, his mother, sister, and sister-in-law(babhi) had gone to harvest paddy, and his brother Lukan Sao, had gone to field to make a pea channel. Only he, his brother Tilak Kumar and father, were at home. He and his brother went to school, and father was alone at home. To the court question, he stated that a boy had defecated in school, so the other boys asked him to bring spade from home so he came home to get the spade. When he came home, he saw that his elder uncle Neecha Sao, was pushing his father into the house and his elder uncle's son, Chopal Sao, was standing at the door. He tried to stop his uncle saying that his father had to deliver food at the farm. He abused him and ordered his son to catch and threatened him to run away. Then, he ran to the farm to inform his mother about the incident and returned home with her. His sister-in-law went to the pea field to inform to his brother. Upon returning home, he found his father's body in the room. He tried to offer him water but, he did not drink. His brother and another man brought his body into the courtyard. His father was dead. A plastic rope about 2 feet long was tied around his neck, and there was a mark on his neck.
He further stated that his uncle and father had a land dispute. His uncle had asked my father for land, but his father refused to give it. A year before this incident, his uncle had stabbed his mother in the stomach and ripped it open.
P.W.-5 in his cross-examination, had stated that the school is from 11 am to 4 pm and on the day of the incident also it was from 11 pm to 4 pm. He and his brother had gone to school together at 11 a.m. and reached school in three-four minutes. He studies in sixth class. At the time of the incident, he was studying in fifth class. Attendance was not made that day. He does not know the name of the teacher who was teaching the fifth class. On the day of occurrence, there were two teachers in the school, but he cannot tell the name of the second teacher. There is a headmaster of the school, but, he does not know his name. He did not take leave from the teacher to bring spade from home. Some boy had defecated in the school at night. Boys from his class sent him to bring the spade, but, he did not remember his name. It took two-three minutes to reach home. There are two doors to enter the house. He saw the elder father's son(appellant herein) standing at the door where there is a tree, which is a mango tree. On the court question, he stated that the paddy field where his mother was, is about a mile from his house and his school is about 50/60 yards from his house. He only spoke to his mother in the field and they immediately left the paddy there and left for home. They did not meet anyone on the way. When they came home there was no crowd, when they started crying and wailing then the crowd gathered.
PW-6 Shanti Kumari, daughter of the deceased. She had stated in her evidence that on the day of the incident she, her mother Mohani Devi, and sister-in-law (babhi) Jirwa Devi, had gone to harvest paddy and her elder brother Lukan Sao, had gone to the pea field. Her middle brother Mahavir and the younger brother Tileshwar @ Tila, were at home. Her father was engaged in threshing straw and he had told them that he will come afterwards taking food for them. She further stated that her brother Mahavir came to the farm and informed the mother that elder father Neecha Sao and his son Chopal Sao were beating the father. Upon hearing this, sister-in-law(babhi) was sent by the mother to call the brother. When she, her mother and brother arrived home, the father was seen lying on a cot in the courtyard. A rope mark was observed on the right side of the neck, and the rope was still found attached. The prior to this incident, a dispute had arisen between her elder father and father regarding land. The elder father used to demand the land of the house, but her father did not accede. A year before the land dispute, the elder father had beaten her mother in the stomach, resulting in rupture.
P.W-6 in her cross-examination, she stated that she cannot say the name of the person, who removed the rope from the father’s neck.
PW-8 Saryu Sao, has stated in his evidence that on 02.12.1995, he was at home. At 3 o’clock in the afternoon, information was given by Lutan Sao that his father Jhamman Sao, had died. Then, he went to his house and saw Jhamman Sao was found lying dead on a cot, with a rope mark around his neck and a rope was lying nearby. Other persons were also present there.
In his cross-examination, he stated the body of Jhamman Sao was found on a cot, with the head facing east and the feet facing west.
PW-11 Anuj Kumar, is the Investigating Officer of the case. He has stated in his evidence that on 02.11.1995, he was posted as Junior Sub-Inspector at the Barkagaon police station and on that day, at 16:00, police station received a rumor that a man had been murdered in Pakri Barwadeeh village. He went with Constable 914 Ramji Gupta to verify the information. At 16:30, they reached Pakri Barwadeeh Basti and upon arriving there, he took the statement of Lukan Sao, son of Jhaman Sao. Jhaman Sao's body was lying on a cot in Lukan Sao's courtyard. He recorded Lukan Sao's statement, which bears signature of Lukan Sao and signature of Dular Sao as a witness. The fardbeyan was marked as Ext.-2.
Investigating Officer further stated that he prepared the inquest report of the body in the presence of two witnesses, Krishna Kumar Sao and Kamlesh Sao. The inquest report is in his handwriting and signature, which was marked as Ext.-3. A rope approximately two and a half feet long, made from the thread of a plastic bag, was recovered from near the body. This rope was seized in the presence of Krishna Sao and Kamlesh Sao and the seizure list of it, was marked as Ext.-4. He has further stated that he inspected the site of the incident. The site of the incident was the house of deceased Jhamman Sao located in village Pakri Barwadih whose main door faces east. There are three rooms with tiled roof on the east side and one room each on the north and south side and a courtyard in the middle. In the courtyard, near the door of the room on the north side, the body of deceased Jhamman Sao was found on a cot facing east-west. A deep mark of rope was found on the neck and a rope woven from a plastic bag of about two and a half feet long was found on the cot. It was told that the accused Neecha Sao had dragged the deceased Jhamman Sao near the first room on the east side and it was told that Chopal Sao stood near the door after the corridor on the north side and kept watch. It was told that the deceased Jhamman Sao had fallen on the straw in the third room on the east side. He raided the accused house and both accused were found absconding from their homes.
In his cross-examination, Investigating Officer stated that the rope he seized is not here now. He had drawn a map of the scene of the incident. He has described the scene of the incident according to the description given. He recorded Mahavir Sao's statement on 03.11.1995 at 9 am and he did not state that he had gone to school at 11 am and he did not state that a boy had defecated in the school and the other boys asked him to bring spade from home and he went home to get spade. He had not stated that he came home from school at 11 am to keep the spade. He did not state before me that the elder father (i.e. Neecha Sao) had one foot inside the door and one foot outside. Investigating officer further stated that informant Lukan Sao, did not state before him that the two younger brothers, Mahavir Sao and Tilak Nath Sao, had gone to school. The witness Mahavir Sao, did not state that he studied at Barkagaon Middle School, but he only mentioned that he had attended the school. He did not go to the school to inquire about this.
PW-12 Dr. Tej Pati Singh, had conducted postmortem on the body of the deceased. He has deposed that on 03.11.1995, he was posted at Sadar Hospital Hazaribagh as CAS. On that day he conducted post-mortem of the dead body of Jhaman Sao. The doctor had found the following ante-mortem findings-
External findings.
(i)Eyes closed, mouth partially open, face congested/reddish blue appearance, rigor mortis present in both upper and lower limbs.
ii) Ligature mark around the neck, mark dominal over front of neck interrupted and irregular also here. Over front of the neck, it looked like a grove base of which was pale and margins congested. There was a knot like impression behind the right ear, near the right mastoid process/ back side of ear. Mark situated above the thyroid cartilage between the lyrings/wind pipe and chin.
iii) Saliva running from the left angle of mouth over the left cheek.
Internal findings
i)Walls of the trachea/front of neck congested.
ii) Hyoid bone/front of neck intact.
iii) Right side of the heart contained blood clot, lungs, liver, spleen, kidneys were intact and congested.
iv) Stomach wall normal, contained half digested rice and vegetable.
v)Urinary bladder empty.
Time since death within 48 hrs of P.M. examination.
Doctor opined that cause of death was hanging, heading to asphyxia resulting in death. Ligature mark of neck may be due to rope. On his identification P.M. report was marked Ext.-8.
PW-13 Constable 225 Shambhu Singh, had stated in his evidence that he had brought the material exhibit from the Barkagaon police station, which pertains to Barkagaon Police Station Case No. 67/95, under Section 302/34 of IPC. He had brought it on the orders of the station in-charge. The exhibit was recorded in the police station's storehouse register number 11/95. He opened the exhibit in which cut nylon rope was found and the same has been marked as Material Ext.-I.
PW-14 Baidyanath Sao, had stated in his evidence that Jhamman Sao died over a year and a half ago. He heard that he was strangled to death with a rope. Prior to this incident, Neecha Sao had hit Jhamman Sao's wife in her stomach with a stick, but, no case was filed against this and a panchayati was held. In his cross-examination he stated that the deceased Jhamman Saw's wife is his sister.
Having considered the entire evidence on record, the principal question which arises for determination is whether the prosecution has established, beyond reasonable doubt, that the surviving appellant, Chopal Sao, shared a common intention with the deceased accused Neecha Sao to commit the murder of Jhamman Sao and participated in the commission of the offence punishable under Sections 302/34 of the Indian Penal Code.
This court finds from the impugned judgment that learned trial court has convicted the appellant relying on the testimony of Mahabir Kumar Sao (P.W.-5), who is the sole eye witness of the part of the occurrence as he had only witnessed the part of the occurrence as he had deposed that when he came home, he saw that his elder uncle Neecha Sao, was pushing his father into the house and his elder uncle's son, Chopal Sao, was standing at the door. He tried to stop his uncle saying that his father had to deliver food at the farm. He abused him and ordered his son to catch and threatened him to run away. Then, he ran to the farm to inform his mother about the incident and returned home with her.
Thus, from the aforesaid discussion, it becomes manifest that Mahabir Kumar Sao (P.W.-5) had not himself witnessed the alleged murder of the deceased. His testimony, insofar as it relates to the surviving appellant, is confined to the assertion that the said appellant was merely standing at the door at the time when co-accused Neecha Sao (since deceased) was allegedly pushing the father of P.W.-5 into the house.
There is no dispute regarding the homicidal death of Jhamman Sao (deceased). PW-12, the doctor who conducted the post-mortem examination, found a ligature mark around the neck of the deceased and opined that death had occurred due to asphyxia resulting from hanging.
Learned trial court in its finding has observed that testimony of Mahabir Kumar Sao (P.W.-5), was substantiated by P.W.-1(Informant), P.W.-4 and P.W.-6.
To answer the instant issue, this Court is proceeding to analyse the evidence of P.W.-5, who has been projected by the prosecution as the sole eye witness to the part of the occurrence.
It is a settled principle of criminal jurisprudence that conviction can be based on the testimony of a solitary witness, provided his evidence is found wholly reliable, cogent, and inspires confidence. At the same time, where the testimony of the sole eye witness suffers from material contradictions, improbabilities, or lacks corroboration on material particulars, the Court is required to approach such evidence with greater caution.
Before we analyse and appreciate the circumstances that have weighed with the trial court, this court think it apposite to refer to certain authorities pertaining to evidentiary value of the sole eyewitness.
There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honored principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
The law is well settled that the judgment of conviction can be passed also on the basis of the testimony of sole witness but the testimony of said witness should be trustworthy as per the judgment rendered by Hon'ble Apex Court in the case of Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91, paragraphs 30 to 34 of the said judgment are being referred hereunder as :-
"30.Shri Bagga has also submitted that there was sole testimony of Sujit Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8, could be treated merely as hearsay. The same cannot be relied upon for conviction.
31.In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court repelled a similar submission observing that: (SCC p. 371, para 9) "9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration." In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
32.In Namdeo v. State of Maharashtra this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
33.In Kunju v. State of T.N., a similar view has been reiterated placing reliance on various earlier judgments of this Court including Jagdish Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras.
34.Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly."
Likewise, the Hon'ble Apex Court in the case of Kuriya and another vs. State of Rajasthan, (2012) 10 SCC 433 has held as under: -
" 33. ---The Court has stated the principle that, as a general rule, the Court can and may act on the testimony of a single eyewitness provided he is wholly reliable and base the conviction on the testimony of such sole eyewitness. There is no legal impediment in convicting a person on the sole testimony of a single witness."
Further, the Hon'ble Apex Court in the case of Kalu @ Amit vs. State of Haryana, (2012) 8 SCC 34 held as under:
"11.We find no infirmity in the judgment of the High Court which has rightly affirmed the trial court's view. It is true that the accused have managed to win over the complainant PW 4 Karambir Yadav, but the evidence of PW 5 Ram Chander Yadav bears out the prosecution case. It is well settled that conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence. This witness has meticulously narrated the incident and supported the prosecution case. We find him to be a reliable witness."
The Hon'ble Apex Court in case of Sheelam Ramesh v. State of A.P., (1999) 8 SCC 369 in Para-18 held as follows:-
"18.According to learned counsel for the accused appellants, though PW 3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eyewitness to the occurrence. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence."
Thus, on the basis of the aforesaid discussion it is apparent that the conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence reason being that courts are concerned with quality and not with quantity of evidence and in a criminal trial as per the statute there is no legal impediment on relying upon the testimony of sole eyewitness.
At this juncture, it would be pertinent to examine the testimony of the alleged sole eyewitness of the part of the occurrence Mahabir Kumar Sao (P.W.-5), in the backdrop of aforesaid legal proposition vis-à-vis P.W.-1(Informant) and the Investigating Officer (P.W.-11) of the case, in the backdrop of aforesaid legal proposition.
The foundation of the prosecution case as per the FIR is that Informant’s brother i.e. Mahabir Sao (PW-5) had come from the house and had informed that when he came to his house from the School at about 11:00 A.M., and as soon as he entered the house after opening the Eastern door of the house, he found his uncle Nicha Sao, dragging his father Jhaman Sao (deceased) inside the room and he told him to run away otherwise he would be killed.
This Court on going through the FIR, deposition of the Informant (P.W.-1) and Mahabir Kumar Sao (PW-5), finds that the prosecution case rest on the foundation of testimony of Mahabir Kumar Sao (PW-5), who is the son of the deceased Jhaman Sao and prosecution has projected him as sole eye witness of the part of the occurrence.
The prosecution witnesses had stated that on the day of occurrence Jhaman Sao(deceased) was alone in the house as the Informant P.W.-1Lukan Sao (son of the deceased), P.W.-4 Mohini Devi (Wife of the deceased) and P.W.-7 Jirwa Devi (daughter-in-law) of the deceased had gone to their field for doing agricultural work and two son of the deceased Mahabir Kumar Sao (P.W.-5) and Tilak Kumar, had gone to the school. Hence, Jhaman Sao(deceased), was alone in the house.
The alleged sole eye witness of the part of the occurrence Mahabir Kumar Sao (P.W.-5), has deposed that he was studying in Barkagaon Middle School, and on the day of occurrence at 11 A.M. he had gone to school, which is one mile away from his home.
Further, this witness Mahabir Kumar Sao (P.W.-5), had deposed that on the day of occurrence a boy had defecated in school, so the other boys asked him to bring spade from home so he came home to get the spade. When he came home, he saw that his elder uncle Neecha Sao, was pushing his father into the house and his elder uncle's son Chopal Sao (appellant herein), was standing at the door. P.W.-5 had also deposed that he had seen his elder father Neecha Sao’s, one foot was inside the door and one foot outside. He restrained his elder uncle Neecha Sao, but he abused him and ordered his son Chopal Sao to catch and threatened him to run away.
But, the Investigating Officer in his cross-examination, had stated that he had recorded the statement of Mahavir Sao (PW.5) statement on 03.11.1995 at 9 am, but, Mahavir Sao had not stated before him that on the day of occurrence, he had gone to school at 11 am and he did not state that a boy had defecated in the school and the other boys asked him to bring spade from his home and hence, he went home to bring spade. Mahavir Sao had also not stated that he came home from school at 11 am to keep the spade.
The Investigating Officer also deposed that Mahavir Sao had not stated before him that he had seen his elder father Neecha Sao, one foot was inside the door and one foot outside. Further, the investigating officer, had also stated in his cross-examination that informant Lukan Sao, did not state before him that his two younger brothers, Mahavir Sao (P.W.-5) and Tilak Nath Sao, had gone to school. He did not go to the school to inquire about this.
Hence, the denial of the Investigating Offer (P.W.-11) in his cross-examination firstly, that Mahabir Kumar Sao (P.W.-5), had not stated before him that a boy had defecated in the school and the other boys asked him to bring spade from home and hence, he had went home from school at 11 A.M., to bring spade, and secondly, that Mahabir Kumar Sao did not state before him that his elder father Neecha Sao, one foot inside the door and one foot outside, raises doubt in trustworthiness and credibility in testimony of sole eyewitness Mahabir Kumar Sao (P.W.-5).
Hence, this Court finds that material contradiction has emerged in the prosecution case due to contradictory testimony of Mahabir Kumar Sao (P.W.-5) and the Investigating Offer (P.W.-11), on the points -
on the day of occurrence, Mahavir Sao’s (P.W.-5), going to the school,
returning of Mahavir Sao (P.W.-5), to his home from the school, to take spade from his home for cleaning stool in the school, and
Mahavir Sao, witnessing that Neecha Sao’s, one foot was inside the door and one foot was outside, at his home
Hence, this Court comes to the conclusion that prosecution has failed to prove the vital fact beyond reasonable doubt that on the day of occurrence Mahabir Kumar Sao (P.W.-5), had come to his home from school to take spade, becomes doubtful and hence, not proved.
So, when prosecution has failed to prove the fact that the alleged sole eye witness of the part of the occurrence Mahabir Kumar Sao’s (P.W.-5), came to his home from the school to take spade, then, question arises under such circumstance how Mahabir Kumar Sao (P.W.-5), saw his elder uncle Neecha Sao, pushing his father(deceased) into the house and his elder uncle's son Chopal Sao(appellant herein), standing at the door and how Mahavir Sao(PW-5), saw his elder father Neecha Sao’s, one foot inside the door and one foot outside, which the prosecution has failed to explain and raises doubt in the prosecution case.
Hence, from the forgoing discussion, this Court comes to the conclusion that Mahabir Kumar Sao (P.W.-5), who has been projected as alleged sole eye witnesses of the part of the occurrence is not fully reliable.
Further it is true that PW-5 has identified the present appellant as being present at the doorway when another accused Neecha Sao was allegedly pushing the deceased into the house. Nevertheless, the evidence attributed to PW-5 does not describe any specific overt act by the appellant in inflicting the ligature injury upon the deceased. The allegation against the appellant is principally that he was standing at the doorway.
Mere presence at or near the place of occurrence, even when accompanied by suspicion arising from a previous dispute, cannot automatically lead to a finding of criminal liability for murder. The prosecution was required to establish, through reliable evidence and the circumstances of the case, that the appellant shared the common intention to commit the murder and that his participation was referable to such common intention.
It needs to refer herein the settled connotation of law that Section 34 of the Indian Penal Code embodies the principle of joint liability for a criminal act done by several persons in furtherance of the common intention of all. Common intention may be inferred from the conduct of the accused, the surrounding circumstances, and the nature of their participation. However, the existence of common intention cannot be presumed solely from relationship, presence, or prior enmity.
In the present case, the allegation that the appellant stood at the doorway, without sufficiently reliable evidence establishing that he intentionally facilitated the commission of the murder or otherwise participated in furtherance of a shared intention, does not, in the circumstances of this case, provide a safe basis for sustaining the conviction under Sections 302/34 of the Indian Penal Code.
Further, the evidence of PW-1, Lukan Sao, regarding the information conveyed to him by his wife, PW-7, is also relevant in this context. PW-7 was tendered and did not furnish substantive testimony supporting the alleged communication attributed to her. Consequently, the prosecution's account of the precise manner in which PW-1 received the information about the occurrence does not receive independent corroboration from PW-7. Nevertheless, the absence of substantive testimony from PW-7 assumes relevance when the Court assesses the chain of information and the extent to which the prosecution witnesses independently corroborate the material circumstances.
There are also discrepancies concerning the presence of persons at the house when the family members returned. PW-1 stated that several persons had assembled at the house, whereas PW-5 stated that no crowd was present when they arrived and that people gathered only after the family members began crying and wailing. This discrepancy, considered in isolation, may not be sufficient to discredit either witness, since the witnesses may have arrived at different times. However, the Court is required to consider it along with the other circumstances, including the omissions in PW-5's previous statement before the investigating officer and the limited nature of the evidence connecting the appellant with the fatal act.
The omission to verify the school attendance by the investigating officer or examine relevant school records, if available, is an investigative lapse. Further, it is also noteworthy that the Investigating Officer did not enquire into the circumstances under which P.W.-5 had left his school and proceeded to the place of occurrence, ostensibly for the purpose of fetching a spade to remove defecation from the classroom. The absence of such enquiry leaves a material gap in the prosecution case, as the reason for his presence at the scene remains unexplained and uncorroborated. This omission assumes significance, since the credibility of his testimony and the naturalness of his conduct at the relevant time are matters directly bearing upon the reliability of the prosecution version.
Such lapses do not automatically entitle an accused to acquittal. Nevertheless, where the prosecution case substantially depends upon a alleged solitary eyewitness of the part of the occurrence as discussed in the preceding paragraph and the circumstances of his presence at the scene remain insufficiently verified, these lapses may assume significance in the overall assessment of the evidence.
The prosecution has also relied upon the recovery of the plastic rope and the ligature mark found on the neck of the deceased. The medical evidence supports the prosecution case regarding the cause of death. However, the prosecution has not demonstrated, through the evidence reproduced before this Court, any independent forensic or other material circumstance connecting the appellant with the rope or establishing that he participated in causing the fatal injury. The rope itself, therefore, does not independently establish the appellant's guilt.
Upon an overall assessment of the testimony of P.W.-5, coupled with the material omissions therein, the limited nature of the allegation directed against the surviving appellant, and the other circumstances already discussed, this Court is constrained to hold that the evidence does not furnish a sufficiently reliable or complete foundation for sustaining the appellant’s conviction under Sections 302/34 of the Indian Penal Code.
It is a fundamental principle of criminal jurisprudence that the prosecution must establish the guilt of the accused beyond reasonable doubt. The burden remains upon the prosecution throughout the trial, and the accused is entitled to the benefit of a reasonable doubt arising from the evidence on record.
It needs to refer herein that the Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-
"22.The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, 2017 (13) SCC 98, has held at paragraph-26 as under:
"26.Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."
Further, it needs to refer herein the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under:
"7.The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
It needs to refer herein that the Hon'ble Apex Court, in the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for ready reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-
“6.------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. —"
It needs to refer herein before laying down the aforesaid view, the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as-
“163.We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"
This Court, after having discussed the factual aspect and legal position as discussed hereinabove is of the view that the prosecution has failed to prove the charge against the appellant Chopal Sao, beyond all reasonable doubt as such the impugned judgment of conviction and order of sentence requires interference by this Court.
Accordingly, Judgement of conviction dated 17.06.1998 and order of sentence dated 18.06.1998, passed by learned 5th Additional Sessions Judge, Hazaribagh, in Sessions Trial No.81 of 1996, against the appellant Chopal Sao, cannot sustain and are hereby, set aside.
Accordingly, the instant appeal stands allowed.
The Appellant Chopal Sao, who is on bail, is discharged from the liabilities of his bail bonds.
Before parting with this Judgment, we must record that we have been given able assistance by Mrs. Saman Ahmad, learned Amicus Curiae appointed by this Court for the appellants.
We, accordingly, direct the Secretary, High Court Legal Services Committee, Ranchi, to make the payment of the prescribed remuneration to the learned Amicus Curiae.
Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
Pending I.A. stands disposed of.