of Rajasthan Vs. Om
Prakash  Insc 693 (13 June 2007)
Dr. ARIJIT PASAYAT & B.P. SINGH
Dr. ARIJIT PASAYAT, J.
1. State of Rajasthan is in appeal against the judgment of Rajasthan High
Court at Jodhpur. Respondent faced trial for alleged commission of offence
punishable under Section under Section 302 of the Indian Penal Code, 1860 (in
short the 'IPC') and sentence of imprisonment for life by learned Additional
Sessions Judge Nagaur. Accused filed an appeal questioning his conviction and
sentence imposed. The High Court by the impugned judgment allowed the appeal.
2. Background facts in a nutshell are as follows:
First Information Report was lodged in the Police Station, Khinvsar on
14.5.1992 by one Nenuram, stating that at about 11.00 a.m., on that day, he
heard that accused Om Prakash has killed Shivpyari, his wife (hereinafter
referred to as the 'deceased'), due to old quarrel. The investigation was
conducted. The accused was arrested and the prosecution commenced. The
prosecution examined 22 witnesses during the trial to prove its case alongwith
certain documents which were duly proved. On appreciation of the oral and
documentary evidence, the learned Additional Sessions Judge came to the
conclusion that the accused had committed murder punishable under Section 302
IPC and, therefore, proceeded to punish him to suffer imprisonment for life as
3. Trial Court placed reliance on the evidence of Om Prakash-PW-1 and found
his evidence to be cogent and clear and recorded conviction and sentence as
4. An appeal was filed before the High Court. Stand of the appellant was
that the order of conviction is unsustainable in law as conclusion of guilt is
not supported by the evidence on record. The entire conviction is rested upon
the sole testimony of an interested witness, who is younger brother of the
deceased Shivpyari and the corroboration which is sought to be used for
supporting the testimony of PW 1 Om Prakash is the recovery of blood stained
knife and clothes at the instance of the accused. The delay caused in lodging
the First Information Report was not satisfactorily explained. The explanation
for the so-called delay does not over rule out the possibility of concoction of
the entire case against the accused, the investigation is very faulty and the
evidence, as is accepted by the learned trial Judge, is not sufficient to
safely convict the accused of murder. The evidence admits of reasonable
explanation which can exclude the participation of the accused and in such circumstances,
conviction on such evidence is not legal and proper. Police visited the scene
of occurrence immediately on the receipt of the First Information Report and
had seen the premises. The accused was arrested thereafter and then, it is
alleged that at his instance, the blood stained knife and clothes were
recovered. Possibility of planation of these articles cannot be over ruled. The
Investigating Officer has committed a blunder in not connecting the knife to
the accused. Assuming that the knife and clothes were discovered at the
instance of the accused, mere discovery is not enough, unless the knife,
connected to the accused, is shown to have been used by him. The police could
have ascertained the finger prints from the knife and could have either proved
or excluded use of the knife by the accused. Failure on the part of the
prosecution is a serious lacuna, which raises a reasonable doubt regarding
involvement of the accused and, therefore, the evidence, as is accepted, is
grossly in-sufficient for sustaining the order of conviction.
5. However, the primary stand was that on the basis of a solitary witnesses'
evidence, conviction cannot be recorded;
more particularly, when he is related to the deceased. The High Court
accepted the plea and held that in case of solitary witness, and when he is
related to the deceased, corroboration is a must.
6. In support of the appeal, learned counsel for the State submitted that
the evidence of PW-1 clearly established the commission of offence by the
respondent. There is no reason why he would depose falsely against his brother
in law after his sister has lost her life. The decisions referred to by the
High Court do not lay down any proposition of law to the effect that on the
basis of solitary witnesses' evidence conviction cannot be recorded and also
that relatives' evidence needs corroboration. Accused has not explained as to
what he was doing if he was present in the house after the occurrence. He did
not prefer to file any report with the police. His conduct is also relevant.
7. Learned counsel for the respondent on the other hand submitted that
though the reasoning of the High Court is not elaborate, but the conclusion is
correct. According to him, the corroboration was necessary because of
contradictions in the version of PW 10, his conduct in not lodging the FIR,
improvements made during the evidence and his presence having not been
established by any acceptable evidence.
Finally it is submitted that motive was not established. The High Court
relied on the decision in Anil Phukan v. State of Assam (1993 (3) SCC 282) to
hold that corroboration was necessary because it was a case of single witness
supporting the prosecution version and the witnesses' relationship.
8. The High Court seems to have misread this Court's observation. The
relevant observations read as follows:
"Conviction can be based on the testimony of a single eye-witness and
there is no rule of law or evidence which says to the contrary provided the
sole witness passes the test of reliability. So long as the single eyewitness
is wholly reliable witness the courts have no difficulty in basing conviction
on his testimony alone. However, where the single eyewitness is not found to be
a wholly reliable witness, in the scene that there are some circumstances which
may show that he could have an interest in the prosecution, then the courts
generally insist upon some independent corroboration of his testimony, in
material particulars before recording conviction. It is only when the courts
find that the single eyewitness is a wholly unreliable witness that his
testimony is discarded in toto and no amount of corroboration can cure that
9. Again in the same decision it was noted as follows:
"Mere relationship of the witness with deceased is no ground to discard
his testimony, if it is otherwise found to be reliable and trustworthy. In the
normal course of events, a close relation would be the last person to spare the
real assailant and implicate a false person. However, the possibility that he
may also implicate some innocent person along with the real assailant cannot be
ruled out and, therefore, as a matter of prudence, court should look for some
independent corroboration of his testimony to decide about the involvement of
the other accused in the crime."
10. In the instant case the evidence of PW-1 was not shaken in spite of
incisive cross examination. The High Court seems to have taken exception to the
credibility of his evidence on the ground that he had graphically described his
movements with the accused and deceased. It is not clear as to how that can be
the ground to discard his evidence. He has only described the movements during
the relevant period of time from one place to another. For that it was not
necessary to have photogenic memory as the High Court seems to have inferred.
On the contrary these were mere description of the places which at the
relevant time the PW-1 visited in the company of the accused and the deceased.
11. At this juncture it is to be noted that though learned counsel for the
respondent tried to highlight certain improvements in the version of the
witness it is not of consequence. Irrelevant details which do in any way
corrode the credibility of a witness cannot be levelled as omissions or
contradictions. Interestingly in the cross examination of PW-1 the following
suggestions was given to the witnesses:
"Today I do not remember whether the accused had inflicted the said
katari obliquely or straight."
12. The essence of the question appears to be that though the accused had
given the katari blow, the witness did not remember whether it was inflicted
obliquely or straight. This by itself may not be sufficient to fasten the guilt
on the accused, but this is certainly a relevant factor. Additionally the
conduct of the accused was highly suspicious. If he subsequently came to the
house after the incident, he has not explained as to why he did not lodge any
report with the police. That would have been his normal conduct, considering
the fact that undisputedly the deceased breathed her last in the house itself.
The effect of the unnatural conduct of the accused in strengthening the
prosecution version has been highlighted by this Court in State of Karnataka v.
Gopalakrishna [2005 (9) SCC 291.
13. Looked at from any angle the High Court's order is indefensible and is
set aside. Acquittal as recorded by the High Court is set aside and conviction
and sentence as recorded by the trial court stand restored.
14. The appeal is allowed.