S. Rangarajan, J.
1. The twelve appellants have been convicted Under Sections 148, 302 read with 149, I. P. C. and sentenced, each of them, for two years Under Section 148 and 'rigorous' imprisonment for life plus a fine of Rs. 1000/- in default R. I. for another year, each, under the latter sections, though obviously the learned Judge could only impose imprisonment for life. The case of the prosecution is briefly as follows.
2. P. W. 1 Abed Ali had proceeded from his village Borghat to Tezpur town along with the deceased Joymat Ali and Reajuddin (P. W. 2), about 9 miles away. He had gone on bicycle, the other two had gone by bus. P. W. 1 returned on bicycle from Tezpur ; P. W. 2 and the deceased returned by bus. The bus runs up to the village Panchali, from which one has to proceed on foot to village Borghat, When P. W. 1 was returning by bicycle, he met P. W. 2 and the deceased near the police camp of their village, proceeding homewards ; P. W. 1 continued to proceed on bicycle. At the house of deceased Joymat Ali about 2 furlongs away from the place where P. W. 1 had met them, he heard a hulla, made by the deceased and P. W. 2 ; they shouted 'we are killed' 'we are killed' PW. 1 then rushed to the place from where the hulla came. He saw, from a distance of about 150/200 yards the appellants running towards north in the field near the house of Tikaram, husband of Putlimaya (P. W. 3) ; there were also other people along with them, whom he could not recognise. The appellants were armed with dao, lathi, bamboo etc. P. W. 1 entered the house of Tikaram, also known as Bhusal Nepali, husband of P. W. 3. On entering the said house, P. W. 1 found the dead body of deceased Joymat Ali inside the house with a number of injuries on his person. It is seen from the evidence of Doctor Nekibur Rahman, whose testimony in the committing Court was received Under Section 509 Cr. P. C. (old), that he had as many as 13 incised wounds and 3 bruises on his back ; One of those incised injuries noticed by Dr. Rahman extended from below right ear across the neck upto right scapular region of back 11'x2'x2' ; the same was caused by many blows. All the injuries were ante mortem ; death was caused due to shock and haemorrhage as a result of the injuries. There can be no doubt that Joymat Ali had been done to death inside the house of P. W. 3.
3. According to P. W. 1, P. W. 2 had told him that the appellants had killed Joymat Ali after entering into the said house ; but P. W. 2, who had turned hostile even in the committing Court, did not make any such statement.
4. P. W. 1 went to the Borghat Police Camp (Police Beat Office, which will be referred to hereafter merely as the Out Post, about 21/2 furlongs from the place of occurrence ; as advised by the Jamadar (said to be A. S. I. of Police of the Out Post) ; he proceeded to Tezpur Police Station, on a cycle lent to him by the Jarnadar and made a report which was recorded by Shri Abdul Sattar Mulla (P. W. 5) the officer-in-charge of the said Police Station. Shri Abani Kumar Deb (P. W. 6) S. I. of Police and second officer of the said Police Station, was entrusted with the investigation of the case by P. W. 5. After investigation the police submitted charge-sheet against all the twelve appellants.
5. The appellants denied their guilt and said that they had nothing to do with the occurrence ; enmity between the prosecution witnesses and the appellants was said to be the reason for the false implication. The first appellant Giasuddin, in particular, stated when he was examined Under Section 842, Cr. P. C. (old) that the deceased and P. W. 1 had been instituting false cases against him and his brothers for a long time ; the decision in these cases had gone against the deceased and P. W. 1 ; on account of the grudge which P. W. 1 bore against the first appellant and others, the appellants had been falsely implicated.
6. Among the persons who are put forward as occurrence witnesses, P. W. 2 as already noticed, had become hostile in the committing Court itself. P. W. 2 also stated that himself and the deceased had returned by bus and P. W. 1, on bicycle, from Tezpur. According to P. W. 2, when they reached the house of Lodhara Gaonbura, the deceased wanted P. W. 2 to go ahead and he wanted to talk to the Gaonburah. When he had proceeded some distance he heard a hulla ; some persons were shouting 'catch', 'catch' from the jungle nearby he found 4/5 persons chasing the deceased towards the field and ran away towards the north ; P. W. 2 did not identify them.
7. The prosecution is, therefore, left with only one witness P. W. 1 but it is seen that the learned Public Prosecutor had sought to treat P. W. 1 as hostile in the trial Court, despite P. W. 1 stating that he had seen the appellants, along with some others fleeing away towards the north in the field near Tikaram's house. P. W. 1 had stated, even before he was treated as hostile by the prosecution, that he heard from P. W. 2 about appellants having entered the house of P. W. 3's husband and that he had seen them running in the field near the said house. The latter statement had been made by P. W. 1 even in court ; but P. W. 2 had not said that he told P. W. 2 anything. Hence the same could not be relied upon by the prosecution.
8. The question for consideration is whether in the circumstances the conviction of the appellants could be sustained. Before adverting to further details of the prosecution case it may be useful to notice the decision of the Supreme Court in Vadivelu Thevar v. State of Madras : 1957CriLJ1000 , classifying the witnesses into three broad categories, namely, (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable, It was observed there could be no difficulty at all in the case of the first two categories, namely wholly reliable and wholly unreliable ; difficulty arises only in the case of those who are in the middle category. According to law the number of witnesses is not the criterion ; it is, in other words, a qualitative and not a quantitative test which has to be adopted by ourts. Even the testimony of a solitary eyewitness could be acted upon provided he is wholly reliable.
This aspect of the matter was discussed by Shri Goswami, J. speaking for the Supreme Court in Badri v. State of Rajasthan : 1976CriLJ496 . After referring to the previous decision of the Supreme Court in : 1957CriLJ1000 , it was pointed out that the witnesses belonging to the middle category, would have to be corroborated in material particulars by relfeible testimony, direct or circumstantial. It was further pointed out that if a witness is found changing his version to suit the purpose of the prosecution case, such a witness should not be considered to be a reliable person for the purpose of convicting any, particularly Under Section 302, I. P. C. that is to say on his sole testimony. A similar approach was explained by Goswami, again, speaking for the Court in Kamnakaran v. State of Tamil Nadu : 1976CriLJ331 . In the latter case the evidence of the witness in question was contradicted by the F. I. R. which was lodged by him in material particulars.
9. In the light of the aforesaid principles we shall now refer to the evidence of P. W. 1 at some length and examine whether his testimony receives any corrobdration in material particulars. The ejahar given by P. W. 1 reads as follows :--
today the 2nd day of October, 1971 at about 6 P. M. my elder brother Joymat All was returning home along with a person named Reaj from Tezpur. When there was still about two furlongs to reach home, (1) Giasuddin, (2) Keramat Ali (3) Muslemuddin, (4) Reajuddin, (5) Safar Uddin, (6) Mobarak Hussain, (7) Moyezam (8) Ajitan (9) Muslein Ali, (10) Hamed Ali. (11) Faisuddin (12) Makubul Hussain and 12/13 other persons armed with dao, lathi etc. chased my elder brother from the road and assaulted him in the house of Buchal Nepali, as a result of which Joymat, my elder brother died there,
10. P. W. 5, who recorded the said ejahar deposed in cross-examination as follows :-- 'I have not recorded in the ejahar that Abed AH personally saw the occurrence. He did not say in that manner'. It may be recalled that P. W. 1, however, stated before the trial court that he had seen the appellants armed with lathi, dao etc. 'running away' in the field near P. W. 3's house. According to the ejahar, however, the appellants had chased his elder brother (deceased) from the road and assaulted him in the house of P. W. 3. It would thus be seen that the version given in the ejahar, is distinctly contrary to the version P. W. 1 gave before the Court. In other words, reference had been made in the ejahar given by P. W. 1 to the appellants 'chasing' the deceased before he got into the house of P. W. 3's husband. It was just the opposite version which P. W. 1 gave before the Court, namely, that P. W. 1 had not seen the appellants 'chasing' the deceased into P. W. 3's house and killing the deceased there, but merely saw the' appellants running away in the field from near the house of P. W. 3's husband.
11. In addition to the above, the distance from which P. W. 1 saw the appellants running away was, according to his admission in cross-examination, 150/200 yards. The occurrence is said to have taken place at about 6 P. M. on 2-10-1971 which was 'Traodasi' in the bright forthnight, just prior to the full- moon, Sun-set, according to the almanac took place at 5.20 P. M. on that day. It must have become rather dark (in October) at 6 P. M. The question is whether it was cloudy then and, there had been showers as well, as stated by P. W. 2. P. W. 1, however, did not admit that there was any shower or that it was cloudy ; according to him there was bright moon light. On this important point, we are sorry to note, no other evidence has been placed before the Court, as it should have been easily possible to place. According to P. W. 1, when he returned from Tezpur Police Station, he found a constable at the place of occurrence from outpost. At least that constable should have been able to say whether there was any shower that evening or whether it was cloudy at about the time of occurrence ; he was examined.
12. It would be convenient to notice at this stage that at least a General Diary entry must have been made at the outpost concerning the occurrence, It may be recalled that P. W. 1 himself went to the said outpost and the Jamadar (A. S. I.) had only directed him to go to Tezpur Police Station, lending him his own cycle. It is, however, difficult to accept the hypothesis that no General Diary entry was made by any officer at the said outpost, the place of occurrence being within about 2/3 furlongs and the Tezpur P. S. being about 9 miles away, It is only natural to except that such an entry concerning the occurrence should have been made in the General Diary to the effect that at least a Police Constable was sent to the place of occurrence. There should have been entries at least pertaining to the movement of the said Constable, namely, his going to the place of occurrence, the purpose for which he was sent and the time of his coming back. It may also be noticed, in this connection, that P. W. 6 stated in cross-examination that he investigated the case with the co-operation of the outpost ; yet when he was questioned about the G. D. entry at the said outpost, the following answer is found recorded having been given by him :
It is not a fact that I had full knowledge about a G. D. entry in that Borghat Beat post regarding that murder and I wanted to suppress that.
13. Be that as it may, we do not have the G. D. entry before us. Even though the evidence of any witness does not have to be rejected merely on the ground of his having' been treated as hostile by the prosecution we are not able to act on the testimony of P. W. 1, whose evidence is not 'wholly credible', in the absence of sufficient corroboration.
14. P. W. 3 was no doubt present when the deceased took shelter in her house, when he was being chased by some persons. But the evidence of P. W. 8 herself does not lend any corroboration to the evidence of P. W. 1 ; she was unable to connect the appellants with the assault on the deceased. According to her, as she was sitting in the courtyard a number of people came and entered her house ; she went shouting to the house of Sanke (not examined) taking her children also out of fear. Sanke was present in his house. It is surprising that said Sanke, who was also alleged to be present in the trial Court when the examination of the witnesses was proceeding, was not examined. The charge-sheet had cited him as a witness but did not mention, in column 8 as it should have been mentioned, for which purpose the said Sanke was cited as witness. Sanke's evidence could have been useful, had he been examined in this case. There was also another person, Bishnumaya, a neighbour of P. W. 3 who was also said to have come to the place of occurrence., shortly thereafter from her house which is near the place of occurrence. She was similarly cited in the charge-sheet but the purpose for which she was charge-sheeted was not mentioned ; unfortunately she has also not been examined by the prosecution.
15. The only other non-official witness examined in the case is the son of the deceased Joynal Abedin (P. W. 4). According to him he was coming back to his village from the town ; his bus stopped in front of Rabi Sarkar's house ; he got down from the bus and saw that his mother and little brothers were weeping. None of them have been examined, P. W. 4 merely mentioned about P. W. 2 having said to him that certain persons, by naming them, had killed his father. Unfortunately this is not at all useful to the prosecution since he had not seen any of them himself. It may be noted that he had only mentioned the names of only six persons, not even 12 persons, as having killed his father. Whatever that may be, his evidence also does not provide any corroboration.
16. In the circumstances we find that it is not possible to sustain the conviction of the appellants on the basis of the testimony of P. W. 1 alone. It is worth repeating that even if he had been near the place of occurrence at the time of occurrence, it should have been extremely difficult for him to recognise, the assailants who were said to have been at a distance of 21/2 furlongs away at time when it was said to be dark, cloudy and drizzling. There is even greater difficulty in the matter of acting upon the evidence of P. W. 1 since he himself admitted during cross-examination that before the present occurrence the deceased instituted a criminal case against 1st appellant, 5th appellant and 10th appellant It was, according to him, a case of his having been assaulted ; the police registered a case which was pending at the time he gave evidence before the trial Court. It is also seen that Joymat Ali had been arrested by the police in many cases involving dacoity and murder also. It is needless to refer to the other proceedings between the parties in this case because sufficient facts have been elicited from P. W. 1 himself to show that the deceased was a man of bad character name have then might have been other interested (sic) in assaulting him in that brutal manner.
17. The learned trial judge in course of his judgment had freely referred to the statements said to have been made by P. Ws. 1 and 2 before the Police. They were not substantive evidence in the case and should not have been considered against the appellants, but the judgment, we find, unfortunately bristles with reference to such inadmissible material, A passage in the judgment of the learned trial Judge, which appears to be crucial, reads, as follows :--
Considering the evidence of these three witnesses (P. Ws. 1 to 3) it is found that Reajuddin first saw a group of assailants chasing after Jaymat ; and then Putla Maya saw them entering into her house and lastly Abed Ali saw them going, out of the house of Putla Maya after committing the crime.
18. The learned trial Judge, therefore, persuaded himself to accept the prosecution case. The evidence of P. W. 2 to the effect that he saw a group of persons chasing the deceased was not sufficient to implicate the appellants since none of the accused persons had been referred to by P. W. 2 ; the prosecution cannot 'therefore, derive any support from P. W. 2 so far as the appellants are concerned. The learned trial Judge also relied upon the evidence of P. W. 3 as having seen them (obviously some persons) before entering into her house. As explained above, P. W. 3 also had not referred to the appellants as the assailants or as having been concerned in the occurrence, Finally, the learned trial Judge thought that he could act upon the testimony of P. W. 1 to the effect that he had seen the appellants going out of the house of P. W. 3 after the crime without even adverting to P. W. 1 having purported to have seen them from such a long distance as 150/200 yards, the difficulty in identification owing to the poor state of visibility at that time and the enmity between P. W. 1 and the deceased, on the one side, and the appellants on the other, What is even more Important, the learned trial judge did not even see the important contradiction between the ejahar and the testimony of P. W. 1.
19. In these circumstances we find that no case free from reasonable doubt has been made against any of the appellants. Their conviction and sentence are set aside. Appellants 4, 5, 6, 7, 11 and 12 who are said to be on bail ; their bail bonds stand cancelled. The other appellants, namely, Appellants 1, 2, 3, 8, 9 and 10 are directed to be released forthwith unless any of them are liable to be detained for any other valid cause. The appeal is allowed.