A.M. Bhattacharjee, J.
1. The two accused-appellants, Pema Dukpa and Pemba Bhutia, have been convicted by the learned Sessions Judge for committing the murder of one D. S. Rai and also for causing disappearance of evidence of the offence by removing his dead body with the intention of screening themselves from legal punishment. For the offence of murder, the accused Pema Dukpa has been sentenced to death and the other accused Pemba Bhutia has been sentenced to imprisonment for life while for the offence of causing disappearance of evidence, they have been sentenced to four years' and three years' rigorous imprisonment respectively. The accused have come up in appeal before us while the learned Sessions Judge has also, as he must, submitted the proceedings to this Court under Section 374, Code of Criminal Procedure, After going through the records and hearing the learned Counsel for the appellants and the learned Advocate-General appearing for the State, we are satisfied that we must allow the appeal, set aside the judgment, annul the conviction and acquit both the accused. I would briefly narrate the facts and discuss the evidence before proceeding to state the reasons for my decision.
2. The accused Pema Dukpa and his step-son the accused Pemba Bhutia, both Butchers, by occupation, used to reside at Deorali, Gangtok, in the house of Pema Dukpa where the deceased D.S. Rail also used to reside as a tenant. Pemba Bhutia was married to Shova Rai, PW 1, only 10/12 days prior to the alleged occurrence which took place on 2-12-1978. On that date in the evening at about Gp. in both the. accused persons, Doma Sherpani who is the wife of Pema Dukpa and mother of Pemba Bhutia, the deceased D. S. Rai and two other co-tenants being Raj Kumar and Padam Dorjee were present in the room of the accused Pemba Bhutia and PW 1 Shova Rai who is the newly married wife of accused Pemba Bhutia was present in the kitchen adjoining that room. After a bottle of Rum brought by Pemba Bhutia was consumed by all present in the room, a quarrel ensued between the two accused on one side and the deceased D.S. Rai over and about the newly-wed wife Shova Rai, PW 1, but the tenant Raj Kumar intervened and separated them and thereafter both Raj Kumar and the other tenant Padam Dorjee left the place. The quarrel again ensued in the course of which both the accused assaulted the deceased with fist-blows and finally the accused Pema Dukpa gave a blow of Ramphok (dagger) on the head of the deceased whereupon he fell down dead. Both the accused then removed the dead body of the deceased in a gunny bag and threw it in a Jhora below Deoral.Thereafter both the accused returned to that room and wiped away the bloodstains with a piece of cloth and tried to burn that cloth-piece which, however, remained half-burnt and was recovered subsequently. They threw away their blood-stained clothes in the jungle. The dead body of the deceased D.S. Rai was found in the morning on 3-12-1978 by one student of the locality who inform fid a Constable of the Deorali Out Post who in turn informed the Head Constable-in-Charge who finally informed the Gangtok Police Station and a Sub Inspector rushed to the spot and held the Inquest on the dead body. The Officer-in charge of the Gangtok Police Station lodged a suo motu F.I.R., arrested, both the accused persons, started the investigation and on completion thereof submitted charge-sheet against both the accused,
3. It is the case of the prosecution that the wife Shova Rai, PW 1, could and did witness the entire occurrence from the adjoining kitchen and she has in fact deposed in details about the occurrence including the quarrel, the assault following including the final and fatal one, the removal of the dead body in a gunny-bag, the wiping of the bloodstains by piece of cloth and attempt to burn the same and the throwing away of the bloodstained wearing clothes. If this witness can be believed, the prosecution case would stand established. If not, the prosecution shall fail. But considering her evidence as a whole in the light of surrounding circumstances and in the context of other materials on record, I feel that the evidence of this sole eyewitness, on whom hangs the entire prosecution case, cannot be relied on, not for her being the solitary witness to the alleged occurrence, as urged by the learned Counsel for the appellants, but for other weighty reasons.
4. After the Indian Evidence Act, 1872, containing Section 134 therein, has celebrated its centenary and has governed us for more than a century, it should not be necessary to cite any judicial authority for the proposition that the evidence of a single witness is sufficient to sustain and may legally be made the sole basis for a conviction, the relevant Section 134 having enshrined the well-recognised maxim that 'evidence has to be weighed and not counted'. Though the legislature has thus placed no jurisdictional limitation on the power of a Judge to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from limn to time evolved some rules and guidelines of circumspection as to when such evidence can be or cannot be acted upon without corroboration. The decision of the Supreme Court in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 : 1957 Cri LJ 1000 may be referred to as a leading decision on the point where Sinha, J., as his Lordship then was speaking for the Court classified at page 619) witnesses into three categories namely (1) Wholly reliable, (2) Wholly unreliable, and (3) neither wholly reliable nor wholly unreliable and pointed out that 'in the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation' and that in the second category also 'the Court equally has no difficulty in coming to its conclusion'. And his Lordship proceeded to point out further that 'it is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
5. If PW 1 can be classed in the first category, then the accused persons must be held to have been rightly convicted by the learned Sessions Judge. As Krishna Iyer, J., has pointed out in a much later decision in Shivaji Sahebrao v. State of Maharashtra AIR 1973 SC 2622 at p. 2634 : 1973 Cri LJ 1783, if the witness is 'competent' and 'honest.' and his testimony is 'sterling' that may be enough to sustain a conviction, although his Lordship pointed out further, 'as a rule of prudence Court calls for corroboration'. I am inclined to think that in the observations quoted above, his Lordship has only been referring to what the Courts generally do and not what the Court should invariably do in such cases, for it is difficult to understand that if the witness in 'reliable' and 'above reproach or suspicion of interestedness, incompetence or subornation', as pointed out in Trevor's case 1957 Cri LJ 1000 (supra) or if the witness is 'competent' and 'honest' and his testimony is 'sterling' as pointed out in Shivaji's case (supra), how any rule of prudence can still require Courts to call for corroboration unless there is a further rule that Court should approach the evidence of a sole witness with an outlook of suspicion.
6. Be that as it may, for the reasons stated hereinafter, I do not think that I can class PW 1 in the first category, i.e., as a wholly reliable witness and while I would not class her in the second category, i.e., as a wholly unreliable witness, I think, for the same reasons. I will have to class her in the third category, i.e., as a witness who is 'neither wholly reliable nor wholly unreliable'.
7. It is in her own evidence that this witness was married to the accused Pemba, Bhutia only 10/12 days before the occurrence, that she 'was in love with D. S. Rai deceased' and that when only she 'came to know that he was already married', she left him and that she 'left the company of D. S. Rai about 21 days before the occurrence' and thereafter she married the accused Pemba Bhutia and that 'even after (her) marriage with Pemba Bhutia accused, (she) used to remember (her) past plea-want days with Dambar Singh deceased'. It is further in her evidence that before her present marriage with Pemba Bhutia accused and her preceding love-affairs with D.S. Rai deceased, she was married to one Jeewan Tamang and lived with him for two years, but 'no formal marriage ceremony' took place in either of the two cases. A volley of vituperative suggestions was hurled at her at random suggesting her to be a woman of very loose morals and to be 'a prostitute', but these not having been accepted or otherwise proved need not be taken into account. It may be that from her own admission as aforesaid she may not have proved herself to be symbol of marital fidelity or to have much high regard for orthodox notion of wife-hood or woman-hood. But I would not have treated this witness as unreliable simply because of her not having or not caring for a puritan sexual life. The reasons for which I have been compelled to class her as a witness not wholly reliable are different as would be stated herein below:
(1) It is her own evidence that the police interrogated her on the next day immediately on their arrival, but her statement was not recorded on that day but was recorded 3/4 days later while she was in police custody. It is, therefore, apparent that she did not disclose anything to the police worth recording though she was interrogated and examined by the police and was later taken to police custody. While there may be no warrant for the proposition that a person who sees perpetration of a crime but does not disclose it to anyone even on being interrogated to that effect, is to be regarded to be a semi-accomplice or an unreliable witness on that ground, yet according to the decision of the Supreme Court in Vemireddy Satyanarayan Reddy v. State of Hyderabad AIR 1956 SC 379 at p. 381): 1956 Cri LJ 777 the evidence of such a person 'should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder' and that though he is not an accomplice, we should 'Still want corroboration on material particulars' (emphasis added) if such a person 'is the only witness to the crime... as it would be unsafe', to hang people 'on his sole testimony unless we feel convinced that he is speaking the truth'. Following this dictum, as I must, I will have to hold that the evidence of PW 1 cannot, be relied on without corroborate from on material particulars.
(2) It, is in evidence that not only PW 1 did not disclose about the occurrence in spite of interrogation, that not only she was immediately taken to police custody and stayed there when her statement was recorded by the police, but that the police also thought it necessary to get her statement recorded by a Magistrate under Section 164, Code of Criminal Procedure. While it is true that a prior examination of a witness under Section 164, Code of Criminal Procedure may not or should not lead to any invariable presumption that he is not or cannot be a witness of truth, the Supreme Court in Ram Charan v. State of Uttar Pradesh AIR 1968 SC 1270 at 1272 : 1968 Cri LJ 1473 has expressly approved the observations of the Nagpur High Court in Paramanand v. Emperor AIR 1940 Nag 340 : 42 Cri LJ 17 as follows:
The Court, however, ought to receive it with caution and if there are other circumstances which lend support to the truth of the evidence of such witness, it can be acted upon'. (Emphasis added). Relying and explaining the ratio of these observations in Balak Ram v. State of Uttar Pradesh AIR 1974 SC 2165 at p. 2174 : 1974 Cri LJ 1486 Chandrachud. J., (as his Lordship then was) has pointed out that while the evidence of a witness cannot be discarded for the mere reason that his statement was recorded under Section 164, the evidence of such witness 'must be approached with caution' because such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version' as 'the prosecution for a perjury could be the price of that freedom'. His Lordship observed further that such caution is 'all the more necessary when... eye-witnesses are subjected to this tying up process'. (Emphasis added).
Following these guidelines, therefore, while I should not discard the evidence of PW 1 on the ground of her being previously examined under Section 164, Code of Criminal Procedure, but she being the sole eye-witness and subjected to this 'tying-up-process', I must receive her evidence with caution and should proceed to act upon it if, and may I add, only if, I find that there are other evidence or circumstances on record which would lend assurance to the truth of her evidence or, to use a familiar forensic jargon, which would corroborate her evidence in material particulars,
(3) The caution with which the evidence of PWl is to be received and the necessity of corroboration to make her evidence acceptable should be all the more necessary, and much more than what would have been necessary in respect of any other witnesses examined under Section 164, because, as I have already noted, she was in police custody for several days and produced straightway therefrom before the Magistrate who also immediately proceeded to record her statement. These circumstances, which would have vitiated any confessional statement of an accused, are bad enough to require greater caution and better corroboration of the evidence of this witness.
8. But Circumstances or record, far from corroborating her evidence, contradict the same on material particulars. PW 1 has described the attack and assault on the deceased in these words:
My father-in-law pema Dukpa accused gave a fist blow (Ghussa) to the deceased D.S. Rai. Then my husband Pemba Bhutia assaulted D.S. Rai with fist blows, Thereafter Pema Dukpa accused gave blow to D.S. Rai with a dagger (Bamphok) on the head of D.S. Rai with which the deceased received a bleeding wound on his head. And he fell down dead.
Now with these assaults, there could be only one bleeding or incised wound, however severe, on the dead; hut PW 2, the doctor, who held the post-mortem examination, found the following among other injuries on the person of the deceased on external examination:
3. Incised wound just at the base of left wrist size 3' x 1/8' x 1/8'
4. Incised wound on the lateral side of 1he base of the nail of right thumb size 4' x 1/8' x 1/8',
5. Incised wound on the right fronto-parietal region size 212' x 1/8' x 4/4'.
6. Incised wound 3' above left occipital protuberance extending from left occipital bone to left parietal bone size 4'x 1/2' X 1' ,
7. There was dinner fork deformity present just above the left wrist', and PW 2 has deposed further ay follows:There was a linear fracture extending from right parietal bone to left parietal bone, size 5' x 1/8' x 1/8' corresponding to injuries 5 & 6. I also found both the bones of the left forearm fractured and displaced, corresponding to injury No. 7 The injuries on the head and the other incised injuries were caused by a sharp cutting weapon while the injury on the wrist was by a blunt weapon.... The injuries on the head the left forearm were grievous in nature.
And he stated further 'the injuries were ante-mortem and homicidal in nature.' It is, therefore, clear that the statements of 'PW 1 as to the assaults on the deceased are absolutely irreconcilable with so many incised wounds and fractures and displacement of bones, as found by PW 2. It is true that PWJ stated that the dead body of the deceased was thrown down in a Jhora and it was sought to be argued on behalf of the prosecution that though there was one assault on the head of the deceased by the dagger resulting in his death, the dead body might have received so many further injuries as a result of being thrown down. But this argument cannot be accepted as the doctor PW 2 was very categorical when he said that the injuries found by him on the person of the deceased were ante-mortem. The medical evidence, therefore, as already stated, far from corroborating the evidence of PW 1, glaringly contradicts the same.
9. On another point also, and on a material point rather the evidence of PW 1, far from being corroborated, has been seriously contradicted. She stated that 'the clothes of the accused had also got blood-stained' and 'the accused persons threw their own blood-stained clothes into jungle' below their house.
The Investigating Officer, PW 5, however, has stated that he seized the bloodstained shirt of Pema Dukpa accused, Ext. PN. from his person on 5-12-1978. It should be noted that, as stated by PW 5 also, the accused were arrested on 3-12-1978 and were in police custody since then. Search witness L.B. Pradhan, PW 8, has also stated that the shirt Ext. PN and the half-pants Ext. PI were seized by PW5 in his presence and in the presence of the accused at the Police Station under Seizure Lists Exts. 8 and 9, both dated 5-12-1978. If PW 8, an apparently disinterested witness to the search, is believed, as he should be, and the PW 5, the Investigating Officer, also is accordingly believed on this point, then PW 1 must be taken to have lied, for the accused persons who threw away their blood-stained clothes to conceal or remove the evidence of the offence, could not be expected to wear those blood-stained clothes again on their persons, wherefrom they are alleged to have been seized at the Police Station. This is another important circumstance on record which, far from corroborating the evidence of PW 1 on the point, contradicts it and makes it highly incredible.
10. As I have already indicated, under the law as now settled by the Supreme Court in the decisions noted hereinabove, we must, before we can rely and act upon the evidence of PW 1, find corroboration thereof in material particulars in the other evidence on record, she being the solitary witness to the occurrence and a witness whom the prosecution thought it necessary to get tied-up a prior examination on oath under Section 164, Code of Criminal Procedure, and a witness who was obviously under police control and pressure at the relevant time. And I have looked for such corroboration as best as I could but I have found nothing and have found contradictions instead which have made the evidence of this witness, even if it was otherwise credible, very much unreliable. I would now proceed to discuss the evidence of other witnesses and other materials in some more details.
11. I have already referred to the evidence of the doctor PW 2 who held the post-mortem examination and have noted that his evidence in no way corroborates, but rather contradicts the evidence of PW 1. PW 3 is the 'Magistrate who recorded the statements of PW 1 under Section 164, Code of Criminal Procedure and, therefore, his formal evidence is not material for the prosecution case, PW 4 is the Sub-Inspector of Police who held the inquest on the dead body and his evidence also neither corroborates nor is expected to corroborate the evidence of PW 1.
12. PW 5 is the Investigating Officer and I have already pointed out that his evidence as to the recovery of the bloodstained wearing clothes of the accused from their persons at the Police Station very much contradicts the evidence of PW 1 on the point. We also get from this witness the report of the Chemical Examiner to whom the Exits. PA to PO were sent which included some weapons seized from the house of the accused, several packets containing small quantities of earth taken from the place of the occurrence, the clothes alleged to be worn by the accused at the time of the occurrence, the gunny-bag alleged to have been used for removing the dead body, all bearing brown or reddish stains. The report Ext, 12 shows that blood was1 detected in many of these exhibits and some of them, which appeared to the Chemical Examiner to contain blood sufficient for serological examination, were sent to the Serologist for report, but no report was received by the prosecution and as such there is no such report on record from which it could be ascertained as to whether such blood was of human origin. Blood-stains on weapons of trade, wearing apparels or on the earth taken from the room of the accused, who are admittedly Butchers by occupation, are only to be expected and unless we can know for certain that the alleged blood-stains on those exhibits were of human origin, the evidence on the point must be regarded to have failed to prove or corroborated the prosecution case that there was a murder, even if we do not go to that length as to presume that the report of the Serologist, if produced, would not have shown that the exhibits were stained with human blood. We would have, in exercise of our power under Section 375 or Section 428, given the prosecution further opportunity to produce the report of the Serologist as additional evidence; but as the other evidence on record would still fail to connect the accused directly with the crime beyond reasonable doubt, even if such report showed the blood on the exhibits to be of human origin, we have given it up as a useless exercise.
13. P. W. 6 and P. W. 7 were only witnesses to the search and seizure of the articles referred to hereinbefore and they do not, nor are expected to, state anything material or to corroborate the evidence of P. W, 1 in any material particular, P. W. 8 is another such witness and I have already shown that his evidence and that of P.W. 5, the Investigating Officer, contradict the evidence of P.W. 1 as to whether the alleged blood-stained wearing clothes of the accused were thrown away by them in the jungle or were on their persons when these were seized by the police at the police station. P. W. 9 is a police constable who first got the information from a student of the locality as to the dead body of the deceased lying in the Jhora and who informed the In-charge of the Deorali Out Post accordingly.
14. There is also another aspect which, in my view, goes to do some amount of discredit to the prosecution case and that is non-examination of Raj Kumar and Padam Dorjee. It is the prosecution case and also the evidence of P.W. 1 that both these persons, being tenants of that house, were present at the place of occurrence when the heated quarrel between the accused and the deceased about this P.W. 1 started and that Raj Kumar intervened and separated them. It is no doubt true that the evidence is that thereafter both these persons left the place and did not, therefore, witness the second phase of the quarrel and the alleged assault. It is also true that, as pointed out in Shivaji's case supra, at p. 2631 : 1973 Cri LJ 1783, the prosecution has a discretion to pick and choose its witnesses and that it is not as if every witness who has something to do with some part of the prosecution story is to pass through the witness box. But evidence of these two witnesses, in my view, would have been very material for two reasons, firstly, they could have told us how this quarrel between the accused, who are the husband and father-in-law of P.W. 1 and the deceased, who was her quondam lover, originated and developed and that who took the aggressive or bellicose attitude and secondly, whether P. W. 1, the sole witness to the occurrence and the most important witness for the prosecution, allegedly cooking in the adjoining kitchen, was or could be in a position to witness the occurrence in the manner as alleged. As already noted, P. W. 1 also, while admitting that the quarrel between the accused and the deceased was admittedly over and about her, has conspicuously refrained from disclosing the nature and development of the quarrel and as to whether her desperate lover or her mortified husband and father-in-law started the quarrel. Admittedly she was in love with the deceased D.S. Rai and her statement leaves no manner of doubt that she continued to have some soft feelings for him even after her marriage with the accused Pemba Bhutia. Coupled with this is the circumstance that her marriage with Pemba Bhutia was very short-lived and that after this incident she left her husband's home. When viewed in this background, her failure to describe in details the origin, nature and development of the quarrel alleged to have taken place shortly before the occurrence leading to the assault, assumes importance and it would not be unreasonable to hold that there was a deliberate attempt on her part to conceal, if not to distort, facts. It may also be added that if these were disclosed, we could know the immediate reason or motive which led to the occurrence and the same would have had considerable bearing on the nature of the offence alleged to have been committed and that it might be that she, being aware of the effect which her testimony regarding the immediate reason or motive of the, quarrel would have on the case, deliberately withheld those facts. At any rate, this non-disclosure, in my view, also goes to affect considerably the credibility of the evidence of P. W. 1 and thus affects the prosecution case.
15. This being the nature of the evidence adduced by the prosecution, and the quality of the evidence of P. W. 1, the sole witness to the occurrence, the prosecution cannot but fail. The appeal, therefore; must be allowed and even though we may regret borrowing expressions from Sarwan Singh's case AIR 1957 SC 637 : 1957 Cri LJ 1014 that a foul or cruel murder is going unpunished even if there 'may be an element of truth in the prosecution story against the accused' and even if 'considered as a whole, the prosecution story may be true', because 'between 'may be true' and 'must be true' there is inevitably a long distance to travel' and the whole of this distance or even a substantial part thereof has not been, though it must be, 'covered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted'.
16. In the result, I would allow the appeal, set aside the judgment of the learned Sessions Judge and the conviction and sentences flowing therefrom and acquit both the accused and would direct that they be released forthwith.
Man Mohan Singh Gujral, C.J.
17. I agree.