Shiv Kumar Sharma, J.
1. The appellants, five in number, were the accused on the file of learned Additional Sessions Judge (Fast Track) No. 2 Baran (Camp Chhabra) bearing Sessions Case No. 69/2003. Learned Judge vide judgment dated September 19, 2003 convicted and sentenced the appellants as under:-
Under Section 302/149 IPC:
Each to suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Six Months Simple Imprisonment.Under Section 147 IPC:
Each to suffer Simple Imprisonment for One Year and fine of Rs. 500/-, in default to further suffer One Month Simple Imprisonment. Under Section 447/149 IPC:
Each to suffer Rigorous Imprisonment for Three Months and fine of Rs. 500/-, in default to further suffer One Month Simple Imprisonment.Under Section 148 IPC:
Each to suffer Rigorous Imprisonment for Two Years and fine of Rs. 1000/-, in default to further suffer Two Months Simple Imprisonment.The substantive sentences were directed to run concurrently.
2. We may state and refer to the necessary and bare facts and the relevant evidence for disposal of points involved in this appeal. On March 22, 2002 around 10-10.30 PM while Rudra Pratap Singh had been to his house, four persons viz. Pappu, Prakash, Ram Swaroop and Prem arrived and Pappu told him that his brother Madan Lal was killed by some unknown assailants and his dead body was lying in the field. Rudra Pratap Singh then telephonically communicated the information to Police Station Kawai. The information was recorded in Rojnamcha No. 874 dated March 22, 2002 at 11.15 PM. Thereafter Pappu handed over a written report at Police Station Atru with the averments that he had seen Ram Narain. Chhotu Lal, Roop Chand, Brij Mohan and Bhag Chand (appellants) inflicting injuries with Dharias and Gandasis 6n the person of his brother Madan Lal, who died at the spot. On the basis of said report a case under Sections 147, 148, 149, 302 and 447 IPC was registered and investigation commenced. After usual investigation the charge sheet came to be filed against the appellants. Investigation against co-accused Laxmi Chand was kept however pending under 173(8) Cr.P.C. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Baran, Camp Chhabra. Charges under Sections 147, 148 and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 20 witnesses and got exhibited 34 documents. In their explanation under Sec. 313 Cr.P.C., the appellants claimed innocence and examined two witnesses in defence. Learned trial Judge on hearing the final submissions convicted and sentenced the appellant as indicated herein above.
3. Structure of the prosecution case is founded on the sole testimony of Pappu (PW.17). Although Ram Swaroop (PW.1), Prem (PW.2) and Prakash (PW.3) were examined by the prosecution as eye witnesses of the occurrence, but they did not support the prosecution case and were declared hostile.
4. Before we advert to the submissions advanced at the bar, it would be convenient to refer to the injuries found on post mortem examination on the body of Madan Lal Dr. Jai Prakash (PW.15), who performed the autopsy, found following ante mortem injuries on the dead body:-
'(i) I/W c compd # size 5' x 1' from the right side of forehead to ear lobule to posterior occipital region.
(ii) I/W c compd # 3' x 1/2' on the occipital region on scalp.
(iii) I/W c compd # c curved shape 3' x 1' below the right eye ball region.
(iv) I/W 2' x 1' on the middle of the nose # bone.
(v) I/W c 3' x 1' on the left wrist joint.
(vi) I/W 3' x 1' deep to muscle and bone on the epigastric region.
(vii) Teeth and Dentition side-All are corning out c #
(viii) I/W c # on the left lateral and right side cut down sharp weapon deep muscles, fusion and bone also cut down.
(ix) I/W c compd # on the ring finger-right.
(x) I/W c compd # on the middle of the right leg
(xi) Compd # on the right knee joint right leg.
(xii) Compd # on the right knee joint medially.
(xiii) I/W 2' x 1/2' on the dorsal side of heel right.
(xiv) I/W 2' x 1/2' on the antr. Right leg.
(xv) I/W c compd # on the middle of the sole-left.
(xvi) Lacerated wound c Compd # below the left patella (size 4' x 2')
(xvii) I/W c Compd # 3' x 1/2' on the right ankle joint.
(xviii) Compd # c I/W size 5' x 1' on the left elbow joint.
(xix) I/W 2' x 1/2' on the right deltoid region.
(xx) I/W c compd # vertically on the left scapula.'
Cause of death according to Dr. Jai Prakash was external and internal bleeding due to multiple injuries and severe blood loss.
5. The Trial Court accepted the prosecution case in its entirety and convicted and sentenced the five appellants.
6. Before us Mr. Shiv Charan Gupta, learned counsel appearing for the appellants, laid great stress on the testimony of Ram Swaroop (PW.1), Prem (PW.2), Prakash (PW.3) and Rudra Pratap Singh (DW.1) and canvassed that Pappu (PW.17) is highly unreliable witness. His testimony is falsified by Ram Swaroop, Prem and Prakash and it is established beyond reasonable doubt that Pappu was not the eye witness of the occurrence. In order to analyse the submissions, we have closely scanned the material on record. Pappu (PW.17) in his deposition stated that on the fateful night ho was sleeping in 'Khalihan', whereas his brother (deceased) and Ram Swaroop Saharia (PW.1) were sleeping in the field. Around 10-11 PM Ram Swaroop came rushing and told that Madan was given beating. Hearing this he proceeded towards the field having 'Kisan Torch' in his hands and saw the appellants inflicting injuries with Gandasi and Dharia on the person of Madan. Since the appellants threatened to kill him, he could not intervene and came back to 'Khalihan', where he found Prakash and Prem. All the three then went to the field and found Madan dead. He along with Prem went to the house of Ruddha ji @ Pratap ji, who 'telephoned the police. In the cross examination Pappu admitted that he was the accused in a murder case which was pending. He deposed that the place where he was sleeping was 1200 ft. away from the place of incident. He further stated that on his pursuation Police Station Kawai was telephonically informed. According to Pappu he had disclosed the names of the assailants to Police Station Kawai. He also stated that while the dead body of his brother was lying in the hospital he was asked by C.I. to get the report of the incident drawn. Thereafter he got the report written by Chhitar Munshi and submitted it to the SHO at 7-8 A.M. He categorically denied to have submitted the report at 4-4.30 AM. He also denied the suggestion that in order to save actual culprits, he had falsely implicated the appellants. Ram Swaroop (PW.1) deposed that around 11 PM while he and Madan Lal were sleeping in the field, he heard some noises. He then went to 'Khalihan', awakened Pappu and told him that some body was beating Madan. He along with Pappu and Prakash then proceeded to the spot. At that lime they did not have any lantern or bulb. Finding Madan dead they went to the house of Rudra Pratap Singh, who narrated the incident on telephone to Police Station Kawai. Ram Swaroop specifically stated that Pappu did not disclose the names of assailants to him. In his deposition Prem (PW.2) stated that Pappu came to him and told him that Madan was assaulted. On being asked as to who were the assailants, Pappu expressed ignorance and told that since the information about the incident was supplied by Ram Swaroop, he did not know the names of the assailants. Prakash (PW.3) stated on oath that when he along with Pappu, Prem and Ram Swaroop went to the place of incident, they did not have any source of light and Pappu did not know the names of assailants. Ram Swaroop, Prem and Prakash were declared hostile by the prosecution. Rudra Pratap Singh (DW.1) who has been examined by the defence, stated that on March 22, 2002 around 10-10.30 PM Pappu, Prakash, Ram Swaroop and Prem came to his house. They did not have any torch or lantern in their hands. Pappu then told him that his brother Madan had been killed in the field. On being asked as to who were the assailants, all the four persons expressed ignorance and informed him that they did not know the names of the assailants. Ram Charan, ASI, another defence witness, deposed that on March 21, 2002 while he was posted as ASI at Police Station Kawai, he was telephonically informed by Rudra Pratap Singh that some unknown persons had given beating to Madan Lal who was lying in the field in an injured condition. He then got the information recorded in Rojnamcha Ex.D-2. It thus appears that the whole prosecution case is based on the sole testimony of Pappu (PW. 17).
7. It is well settled that conviction can be recorded on the basis of the testimony of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court is convinced that he is a truthful witness. The court has to judge the evidence in a criminal case by the yardstick of probabilities, its intrinsic worth and anymus of the witnesses. While dealing with a criminal case it has to be remembered that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusion' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. The evidence of the sole eye witness has to be scrutinised with caution and circumspection. Their Lordships of the Supreme Court in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81, indicated thus: (Para 50)
'Appreciation of evidence can not conceive of any rule of universal application and is certainly not to be treated as a theorem, and there can be no empirical formula. The evidence on the facts of each case has to be analysed and conclusion drawn, and there can not be pigeon holing of evidence on any set formula.'
8. It is equally settled that evidence of hostile witness would not be totally rejected but it can be subjected to close scrutiny (vide State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, we have therefore to scan closely the testimony of Ram Swaroop (PW.1), Prem (PW.2) and Prakash (PW.4), who were declared hostile by the prosecution.
9. Conjoint reading of the statements of Ram Swaroop, Prem Prakash and Rudra Pratap Singh goes to show that on the fateful night till 11.15 PM when the incident was narrated on telephone to Police Station Kawai, Pappu did not know the names of the assailants. Ram Swaroop, Prem and Prakash had been throughout with Pappu who in his deposition admitted this fact. Testimony of Ram Swaroop, Prem and Prakash stood corroborated by the statement of Rudra Pratap Singh. Having analysed the testimony of Ram Swaroop, Prem, Prakash, Pappu and Rudra Pratap Singh on the anvil of human conduct, probabilities and attending circumstances we find that Pappu did not see the assailants inflicting injuries on the person of his brother Madan Lal. There are strong reasons behind this conclusion which may be summarised thus:-
(i) Act of Pappu in not disclosing the names of assailants to Ram Swaroop, Prem, Prakash and Rudra Pratap Singh is highly unnatural. Had he seen the assailants, why did he not name them?
(ii) The written report was scribed by a Munshi on the pursuation of Circle Inspector of Police Station Atru. Pappu admitted to have submitted the said report at. 7-8 AM on the next day and categorically denied to have lodged it at 4-4.30 AM. It is inexplicable why the Police Station Atru registered the report at 4.30 AM?
(iii) Evidence of Ram Swaroop, Prem and Prakash for which they have been declared hostile seems to be going in consonance with the normal reactions and normal behavioural pattern. On a close scrutiny of their statements, we find these witnesses creditworthy.
(iv) There is no reason to disbelieve the testimony of Rudra Pratap Singh (DW.1), who even according to Pappu was approached just after the incident and who informed Police Station Kawai on telephone about the incident.
10. On examining the testimony of Pappu from the point of view of trustworthiness, we find him wholly unreliable. If the evidence of Pappu would have been considered in right perspective by the learned trial Judge, question of acceptance thereto would not arise. In our considered opinion, having regard to the availability of materials, the success of the prosecution becomes rather doubtful.
11. For these reasons we allow the appeal and set aside the impugned judgment dated September 19, 2003 of learned Additional Sessions Judge (Fast Track) No. 2 Baran, Camp Chhabra and set aside the conviction of the appellants Ram Narain, Chhotu Lal, Roop Chand, Brij Mohan and Bhag Chand under Sections 147, 148, 447/149 and 302/149 IPC and acquit them of the said charges. The appellants who are in Jail shall be set at liberty forthwith, if not required to be detained in any other case.