Dalip Kumar vs State Of Delhi

C. Hari Shankar, J

The appellants Dalip Kumar, Ram Parvesh and Shambhu Dass (who shall be referred to, hereinafter, for the sake of felicity, as “Dalipâ€,

“Ram†and “Shambhu†respectively) are in appeal, before us, against common judgment, dated 26th November, 2001 and order on sentence,

dated 14th December, 2001, passed by the learned Additional Sessions Judge (hereinafter referred to as “the learned ASJâ€), whereby each of

them has been convicted, under Section 302, read with Section 34 of the Indian Penal Code, 1860 (IPC), for having committed the murder of Barun

Singh (referred to, hereinafter, as “Barunâ€​), and, consequently, sentenced to suffer rigorous imprisonment for life.

The impugned judgment

The case set up by the prosecution, as accepted by the learned ASJ, is as follows. On 13th March, 1998, Umesh Singh (PW-8) visited the deceased

Barun, at his residence, on the occasion of Holi. He found an altercation, taking place, between Barun and Shambhu, resulting from a markedly trivial

request, by Barun, to Shambhu, to lower the volume of the tape-recorder being played by him. Shambhu brought, with him, Dalip and Ram, the other

two appellants before us. The fight, between Shambhu, Dalip and Ram on the one part, and Barun, on the other, intensified. Shambhu went to his

room and returned with a knife. Ram held Barun, while Shambhu stabbed him, resulting in Barun losing consciousness. Umesh tried to intercede, but

was also beaten up by the appellants. Umesh, thereafter, raised an alarm, resulting in the arrival, at the spot, of the neighbours. Shambhu dropped the

knife and fled from the spot, whereas Dalip and Ram were apprehended by the neighbours. Barun was taken to the Sanjay Gandhi Hospital

(hereinafter referred to as “the Hospitalâ€), where he was declared brought dead. Thus, as found by the learned ASJ, Dalip, Ram and Shambhu

had, in concert, committed the murder of Barun, with the fatal stab wound having been administered by Shambhu.

The witnesses, on whom the prosecution chiefly relied, before the learned ASJ, were Umesh Singh (PW-8) and Anil Kumar (PW-12). The

prosecution sought to contend that both these witnesses were eye-witnesses to the incident. While holding that the presence of Anil Kumar (PW-12),

at the spot at the time of occurrence was not conclusively proved, the learned ASJ has found Umesh Singh (PW-8) to be a credible eyewitness,

whose deposition, which â€" as the learned ASJ finds â€" had remained consistent, in the investigation as well as during trial, successfully withstood

cross-examination. On the basis of the deposition of Umesh Singh (PW-8), seen in juxtaposition with the evidence of Dr. K. L. Sharma (PW-2) â€

who had conducted the post-mortem on Barun â€" to the effect that Barun had suffered an abdominal stab injury, from which blood was oozing out

even at the time of conducting of his post-mortem, and which was sufficient in the ordinary course of nature to cause death, and that the knife, seized

from the spot of occurrence and produced before him, was capable of causing the said injury, the learned ASJ held that the twin facts, of the death of

Barun having been homicidal in nature, and having been caused by the appellants Dalip, Ram and Shambhu, with Shambhu administering the fatal stab

wound, stood conclusively proved.

The appellants also attempted to plead, before the learned ASJ, that, as the occurrence had taken place in the heat of the moment, the conviction of

the appellants, if at all, ought to have been under Section 304, rather than Section 302, of the IPC. The learned ASJ has, however, rejected the said

submission, relying, for the purpose, on the fact that Shambhu had gone back to his residence and returned with a knife, with which he stabbed Barun,

while Dalip and Ram held him down. This fact, the learned ASJ holds, made out a clear case for conviction, of the appellants, under Section 302, read

with Section 34, of the IPC.

Given the gravity of the offence, and the manner in which it was committed, the learned ASJ has proceeded to sentence all the appellants, before

us, to rigorous imprisonment for life.

The Evidence

Having thus set out in the case of the prosecution, as accepted by the learned ASJ in the impugned judgment, in précis, as it were, we proceed to

an overview of the evidence in the case.

The prosecution led the evidence of 18 witnesses numbered, however, PW-1 to PW-16, as HC Sh. Bhagwan and Umesh Singh (the star witness of

the prosecution, purportedly an eye-witness to the incident) were both numbered PW-8 and ASI Pratap Singh and Insp. P. S. Kansal were both

numbered PW-16. We point this out for clarity, as we do not propose to tinker with the numbering of the various prosecution witnesses, as assigned by

the learned ASJ.

Of the various prosecution witnesses,

(i) PW-1 S. I. Ravi Kumar, PW-4 Const. Surender Singh, PW-8 HC Sh. Bhagwan, PW-10 Const. Jitender, PW-14 Insp. S. S. Ramela, and ASI

Pratap Singh and Insp. P. S. Kansal (both designated PW-16) were the Police witnesses, involved with the investigation at one point or the other,

(ii) PW-2 Dr. K. L. Sharma was the Sr. Chief Medical Officer, at Dr. N. C. Memorial Hospital, who conducted the post-mortem on the deceased

Barun,

(iii) PW-15 M. K. Sharma was the Record Clerk at the Hospital, who proved the MLC of Barun, and

(iv) PW-8 Umesh Singh and PW-12 Anil Kumar were the supposed eye-witnesses to the incident (though the learned ASJ has rejected the testimony

of PW-12 Anil Kumar, holding that his presence on the spot was doubtful).

Other witnesses, cited by the prosecution, are not of significance.

A few guiding principles

This is a peculiar case, in which the conviction, of the appellants, rests entirely on the testimony of a sole eye-witness, namely PW-8 Umesh Singh.

There is no supportive medico-legal or forensic evidence. There are no other eyewitnesses to the incident, or, even if there were, they have not been

co-opted as witnesses by the prosecution. There is no supporting circumstantial evidence.

As the entire case of the prosecution rests on the evidence of PW-8 Umesh Singh â€" rather, on his testimony during trial â€" we would be

required, at the very outset, to examine what, exactly, Umesh Singh said; firstly, in his statement during investigation, recorded under Section 161 of

the Code of Criminal Procedure, 1973 (Cr.P.C.) and, later, during trial.

We have, in doing so, to bear some basic principles of appreciation of evidence in mind.

Seeing is believing, and, therefore, the evidence of an eyewitness, if credible, constitutes, needless to say, the best possible evidence. There is

wealth of judicial authority for the proposition that conviction may rest on the sole testimony of an eyewitness, sans any other evidence, provided,

always, the evidence of the eyewitness is absolutely credible [Vadivelu Thevar v. State of Madras, AIR 1957 SC 614; Brijbasilal v State of M.P.,

1991 SCC (Cri) 546, Edward v. Insp. of Police, (2015) 11 SCC 22,2 Sudip Kumar Sen v. State of West Bengal, (2016) 3 SCC 26 and Gulab v. State

of M.P., (2019) 14 SCC 802].

As the value of evidence increases, however, so does the rigour and strictness of the scrutiny to which the evidence is required to be subjected.

While, therefore, upholding the principle that conviction can rest on the sole testimony of an eye-witness, without any supportive evidence whatsoever,

the Supreme Court has, been at pains to also hold that, in all such cases, the credibility of the evidence of the eye-witness is required to be

conclusively established [State of Maharashtra v. Dinesh, (2018) 15 SCC 161]. For this, the court is required to assess, among other things, the

evidence of the eye-witness, as tendered during investigation, when compared with his evidence during trial, and to examine whether the evidence,

tendered during trial, is cogent and coherent, and free from any disabling inconsistencies, as well as the extent to which the evidence of the eye-

witness is consistent with the evidence of other witnesses, tendered during trial. While embarking on this exercise, needless to say, the court is

required to be mindful of the distinction between minor, and major, inconsistencies, and may only take cognizance of those inconsistencies which dent

the case of the prosecution. At the same time, inconsistencies, even if minor, may, if they are sufficiently large in number, substantially weaken the

credibility of the testimony of the witness concerned.

In the ultimate eventuate, these are all factors of which the criminal court is bound, by oath, to be duly sensitised. At all times, the court is required

to be alive to the fact that the facts, cumulatively seen, and the evidence, holistically assessed, may exonerate the accused, or may cast doubt on his

guilt, and to the legal position that, in either case, the accused is entitled to acquittal. Even so, the court is not required to bend backwards in order to

acquit, in view of the position, now entrenched in the law, that criminal justice administration frowns as much on the acquittal of the guilty, as on the

conviction of the innocent [State of Madhya Pradesh v. Chhaakki Lal, (2019) 12 SCC 326 â€" which digests several earlier authorities].

Returning to the evidence

Given the importance of the evidence of PW-8 Umesh Singh, this Court deems it appropriate to extract, in extenso, his statement, recorded during

investigation under Section 161 of the Cr.P.C., on the basis whereof the rukka (Ex. PW-1/A) was prepared by PW-16 ASI Pratap Singh, as well as

his testimony during trial.

Section 161 statement of PW-8 Umesh Singh

In his statement, recorded during investigation by ASI Singh (PW-16) under Section 161 of the Cr.P.C., PW-8 Umesh Singh deposed thus (as

translated from the vernacular):

“Statement of Sh. Umesh Singh s/o Sh. Jamun Singh r/o Kalon Village, P.S. Ladonia, Distt. Madhubani Bihar, present address Building of Devi Lal

Vill. Mundka Delhi. Age 35 years

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I state that I reside at the above address with my family and earn my living by plying a cycle rickshaw. Today, on the occasion of Holi, I was in my

residence, from where, at about 12:30 PM, I visited the room of my nephew Barun s/o Chandrashekar, r/o Village Saharwar, P.S. Ladaniya, Distt.

Madhubani, presently residing in the building owned by Dayanand at Rajendra Lakra Marg, Phirni Road, Vill. Mundka, Delhi, to play Holi. While we

were partaking of food and drinks in the said room, his neighbour Shambhu, who was a resident of Bihar and was known to me earlier, as he owns a

tea stall, started playing the tape recorder at a high volume. At this, Barun told him to lower the volume of his tape recorder. Shambhu, refused, stating

that he would play the tape recorder at that volume, and taunted Barun to do what he could. On a quarrel erupting, Shambhu came with two of his

friends, Dalip and Ram Parvesh, who were known to me earlier, and they entered into a scuffle (“hathapaaiâ€) with Barun and myself. During the

scuffle, Shambhu brought a knife from his room. Dalip and Ram Parvesh caught hold of both the hands of Barun and Shambhu stabbed my nephew

Barun in his left lower abdominal region below the navel. When I tried to free my nephew, the three of them rained blows on me and as a result of

which I suffered a slight head wound, which I got treated, privately. When I shouted for help, several Bihari boys, who used to stay in the

neighbouring rooms, left their rooms, where they were celebrating Holi, and came outside. Blood was flowing freely from the stomach wound suffered

by my nephew Barun, who lost consciousness as a result. Shambhu dropped the knife on the spot and fled. His two companions, Dalip and Ram

Parvesh were apprehended on the spot with the help of the other Bihari boys. Barun was taken by his friend, Sushil Kumar, on a rickshaw, to Sanjay

Gandhi Hospital for treatment. At this point you arrived at the spot, and I handed over, to your custody, Ram Parvesh and Dalip as well as the

bloodstained knife. Shambhu and Barun had been on bad terms since several days, and used to fight over trivialities. We never reported the matter to

the police, but tried to get them to reconcile their differences. However, Shambhu used to threaten that he would not leave Barun and would eliminate

him. He, along with his two companions Dalip and Ram Parvesh entered into a conspiracy to commit a murderous assault, using the knife, on my

nephew Barun, and they wounded him with the intent of taking his life. I am a witness against all three of them, and request that they be proceeded

against, according to law. My statement has been read over and explained to me, and is correct.â€​

(Emphasis supplied)

Testimony of PW-8 Umesh Singh during trial

The examination-in-chief of Umesh Singh, deposing as PW-8 during trial, and his cross-examination, were as under:

“PW-8 Umesh Singh s/o Jamun Singh, age-35 years, rickshaw puller, r/o Yadav Nagar, Vill. Samay Pur Badli

On S.A.

Barun deceased was the son of my sister. He died on the Holi of year 1998. At that time I was residing in village Mundka. Barun was also residing in

Mundaka but separately from me. Barun was residing in the factory of Bittoo. At about 12 noon on the day of Holi I had come to meet Barun Singh

and take to food with him. We took food together. Accused Shambhu pr. in court was also residing in Mundaka just across one gali from the factory

of Bittoo. Accused Shambhu came to the room of Barun Singh. Stereo was being played by Barun Singh in his room. Accused Shambhu immediately

after coming increased volume of stereo. Barun asked him to reduce the volume. Accused refused and said “Main Nahi Karoonga Tu Kya

Karlegaâ€. In the meanwhile accused Ram Parvesh and Dalip present in the court also arrived, and caught hold of the hands of Barun Singh. In the

meanwhile many persons collected at the spot. Accused Shambhu went to his room and came back with a knife. Accused Shambhu gave blow of

knife on the stomach of Barun Singh. I intervened. Somebody hit a brick on my head. I raised hue and cry. People caught hold of Ram Parvesh and

Dalip on the spot. Accused Shambhu had ran away from the spot leaving the knife there. I telephoned the police. Barun Singh after receiving stabbing

fell down. Sushil another worker took Barun to hospital. Police came at about 12.30 p.m. Again said between 1:30 or 2 p.m. I produced accused Ram

Parvesh and Dalip before the police. and also pointed out the knife lying at the spot.

Police prepared the sketch of the knife. I have seen the sketch Ex. PW 4/D bears my signature at point B. Police recorded my statement. I identify

my signature on Ex. PW 8/A at …. . Deceased was wearing pant and shirt at the time of incident which was blood stained. Some blood had also

fallen down on the floor. Police has encircled the blood and has taken as sample of the blood and earth. Same were seized by the police and my

signatures were taken on the paper which is Ex. PW 8/B and C respectively both are signed by me. Knife was kept in a cloth but I do not remember

what was done. I have seen the memo Ex. PW 4/C which bears my signatures. I can identify the knife and cloth.

At the stage of a sealed envelope having seal of FSL opened. A knife and a cloth opened parcel containing seal of ALS are recovered. I have seen

the knife carefully. It is the same knife. Knife is Ex. P. 1.

At this stage another parcel is opened sealed with seal of FSL. The shirt of Barun is Ex. P.2, baniyan is Ex. P.3 and underwear is Ex. P.4. I am

identifying underwear as I have seen him wearing underwear of this colour.

XXXX

by Sh. Gagan Preet, Amicus curiae for all three accused.

My statement was recorded by police at about 2 p.m. My shirt also receive blood stains of Barun Singh when I tried to rescue him. Police did not take

my shirt into possession. Incident took place inside the room of Barun Singh. Many persons had seen the incident. Anil was not present at the time of

incident but he had come later on. I did not go with Barun to hospital as I was bleeding. Anil had gone alongwith Sushil to hospital. I did not go to P. S.

I was not taken to hospital for medical examination by police. I personally went to a private hospital. I do not remember whether police sealed the

knife and given the seal to me. It is correct that my statement was recorded at P. S. again said at the spot. I had turned to P. S. on that day at about

6:30 p.m. At that time I saw one Nandu alongwith accused Ram Parvesh and Dalip at P.S.

CQ. At the time of stabbing down, he was being caught hold of by accused Dalip and Ram Parvesh. They had not released Barun Singh for about 5

to 10 minutes until he was stabbed by Shambhu.

Faces of almost everybody were covered with colours on that day as it was the day of Holi. It is correct that it was difficult to identify the faces of

the persons present at the spot. I knew all the three accuseds from before the incident. Accused Shambhu was running tea stall. again said I did not

know accused Dalip and Ram Parvesh previous to the incident. I did not know their parentage. It is correct that their faces were covered with

colours, of different shades. Both the accuseds were identified by other persons present on spot by their names. It is correct that Dalip had told me at

the P.S. that I have wrongly implicated him in this case. Police had asked me today whether I remembered my statement or not I told that I remember

but I should be told a little bit about the incident. police man had read over my statement to me.

I had not told the police in my statement that accused Shambhu had lovely played his stereo. Confronted with portion A to A on Ex. PW 8/A where it

is so recorded.

I did not tell police that incident had taken place at chowk. Volunteered quarrel had started in the room of Barun Singh and was stabbed in the chowk.

Confronted with point B to B where it is stated that accused had been quarrelling at the chowk. I had told to police that accused Shambhu has come

alongwith Dalip and Ram Parvesh, after Barun Singh had objected to play the deck at high volume. Barun Singh had been trying to evade himself

from the clutches of accused persons. I do not know whether there was quarrel previously between Shambhu and Barun. I did not tell police that I

and Barun did not file complaint against Shambhu and had solved the problem ourselves. It is wrong to suggest that I was not present at the spot. It is

also wrong that accused Dalip and Ram Parvesh were not arrested from the spot but were brought to P.S. by the police. It is incorrect that accused

Shambhu did not come to the room of deceased. It is incorrect that I also did not know Shambhu and have named him falsely.â€​

(Emphasis supplied)

Police witnesses

Of the various Police Witnesses, the witnesses who were associated with the present investigation, since its inception, were PW-1 SI Ravi Kumar,

PW-16 ASI Pratap Singh and PW-16 Insp. P. S. Kansal.

PW-1 SI Ravi Kumar confirmed having received a message, at 1:37 PM on 13th March, 1998 (which was Holi), from the wireless operator,

regarding an incident of a boy having been stabbed at Rajinder Lakra Marg, in village Mundka, and having marked the message to PW-16 ASI Pratap

Singh.

PW-1 also confirmed that, at 5:20 PM on the same day, i.e. 13th March, 1998, PW-4 Const. Surender Singh had brought the rukka (Ex. PW-1/A),

which had been sent, to him, by ASI Pratap Singh (PW-16) and that, on the basis of the said rukka, he had registered FIR No. 149/98, against the

appellants, under Sections 302 and 323, read with Section 34 of the IPC.

PW-1 was not cross-examined, despite grant of opportunity.

The rukka (Ex. PW-1/A) reveals that it was recorded, therein, by PW-16 ASI Pratap Singh, that, at the time when he reached the spot where the

incident had occurred, he found blood splattered on the floor of the Chowk in the building. It further records that he was made to understand that

Barun had already been taken to the hospital, whereupon he left PW-4 Const. Surender Singh at the spot and proceeded to the hospital, from where

he collected the MLC of Barun (Ex. PW-15/A), in which it was recorded that he had been brought dead. Thereafter, ASI Pratap Singh records on the

rukka (Ex. PW-1/A), that he returned to the sport of occurrence, where he met Umesh Singh (PW-8), who claimed to have been an eyewitness to the

occurrence, and proceeded to record his statement, under Section 161 of the Cr.P.C. It is further recorded, therein, that Umesh Singh (PW-8)

produced, before PW-16 ASI Pratap Singh, a knife, alleged, by him, to be the weapon of offence. The rukka records the dimensions of the knife, and

the fact that ASI Pratap Singh (PW-16) sealed the knife with his seal “PSâ€, which was, thereafter, handed over to PW-4 Const. Surender Singh.

It is finally recorded, in the rukka (PW-1/A) that Umesh Singh (PW-8) produced, before ASI Pratap Singh (PW-16), the appellants Dalip and Ram,

whom he took into custody. These facts, records ASI Pratap Singh in the rukka, indicated that an offence, under Sections 302 and 323, read with

Section 34 of the IPC, appeared to have been committed, and that he, accordingly, forwarded the rukka, to PW-1 SI Ravi Kumar, who registered FIR

on the basis thereof.

PW-16 ASI Pratap Singh testified, in his examination-in-chief during trial, that, on 13th March, 1998, Const. Sunita, from the PCR, informed the

duty officer at PS Nangloi, that a boy had been stabbed near village Mundka, at Rajinder Lakra Marg, which was recorded in DD No. 13/A and sent

through Const. Surender Singh (PW-4), whereafter the case was assigned to him. He further deposed that, on receiving the said information, he

proceeded to the spot of occurrence, which was in a building owned by Dayanand and that, on reaching the spot, he found that a great deal of blood

had been spilt on the ground, and that the injured Barun had already been taken to the Hospital, whereupon he left PW-4 Const. Surender Singh to

guard the spot and proceeded to the Hospital, from where he obtained the MLC of Barun (PW-15/A). Thereafter, he returned to the spot of

occurrence, where he met PW-8 Umesh Singh, who claimed to be an eyewitness to the incident. He recorded the statement of Umesh Singh, under

Section 161, Cr.P.C. (Ex. PW-8/A). He further deposed that Umesh Singh produced, before him, a bloodstained knife, of which he prepared a sketch

(PW-4/B), in the presence of Const. Surender Singh (PW-4) and Umesh Singh (PW-8), whereafter he sealed the knife, using his seal “PSâ€, and

took the knife into possession vide Memo Ex. PW-4/C. The seal, after being used, it was testified, was handed over to Const. Surender Singh (PW-4).

PW-16 further deposed that Umesh Singh also produced, before him, the appellants Dalip and Ram, claiming that they were the assailants. He

identified the appellants, who were present in Court. PW-16 further deposed that he, thereafter, made an endorsement, on the rukka, for registration

of FIR under Sections 302 and 323, read with Section 34 of the IPC, against the appellants, and sent the rukka, through PW-4 Const. Surender Singh,

to the Police Station for registration of FIR, which was duly registered. The investigation was, thereafter, handed over to the SHO, PS Nangloi, Insp.

P. S. Kansal (also PW-16), who had reached the spot by then. PW-16 ASI Pratap Singh further testified that he produced the appellants Dalip and

Ram Parvesh before Insp. P. S. Kansal, in the presence of Umesh Singh (PW-8), and that Insp. P. S. Kansal took them into custody. It was further

testified by PW-16 ASI Pratap Singh, during trial, that Insp. P. S. Kansal seized a sample of the bloodstained earth vide Seizure Memo Ex. PW-8/B.

PW-16 ASI Pratap Singh further testified, during trial, that, on 14th April, 1998, Shambhu was arrested from a spot near the tea shop at Rajinder

Lakra Marg, by Insp. P. S. Kansal and that, consequent thereupon, Shambhu lead the Police team to the house of Dayanand and pointed out the spot

where the incident had occurred, vide Pointing Out Memo Ex. PW-16/C. He identified the knife, shown to him in Court, as the knife that had been

produced, before him, by PW-8 Umesh Singh, in a bloodstained condition.

ASI Pratap Singh was cross-examined by the amicus curiae appearing on behalf of the appellants Ram and Shambhu, as well as by learned

Counsel appearing for Dalip. During the course of the said cross-examination, ASI Pratap Singh acknowledged that Dalip and Ram had been

produced, before him, by PW-8 Umesh Singh and that, at the time, no one else was present. He also agreed that, at the time when he first visited the

spot of incident, he did not find Umesh Singh, or any other eye-witness to the incident, present, and did not see any of the appellants at the spot, in the

custody of any independent witness or otherwise. He also confirmed that he had not sent the knife, produced before him by Umesh Singh, for forensic

examination to any fingerprint expert. He denied all other suggestions, put to him, to the effect that he was falsely implicating the appellants.

Insp. P. S. Kansal, also testifying during trial as PW-16, confirmed that, at 1:40 PM on 13th March, 1998, he had received information regarding

the incident of stabbing that had taken place at Rajinder Lakra Marg and that, following thereupon, he reached the spot at 2:30 PM, to find that Barun

had already been removed to the Hospital. He further deposed that he, thereupon, went to the Hospital and returned to the spot, to find ASI Pratap

Singh recording the statement of PW-8 Umesh Singh, on the basis whereof ASI Pratap Singh drew up the rukka, which was sent, for registration of

FIR, to the Police Station, through PW-4 Const. Surender Singh. He confirmed that he had taken up the investigation from that point and that ASI

Pratap Singh had handed over, to him, parcels sealed with the seal of ASI Pratap Singh (“PSâ€), which he seized vide Seizure Memo Ex. PW-4/C.

He also confirmed having taken samples of the bloodstained earth found on the spot, and having recorded the statements of PW-8 Umesh Singh and

PW-12 Anil Kumar. He testified, further, that the appellants Dalip and Ram had been produced, before him, by ASI Pratap Singh, and that he had

interrogated and, thereafter, arrested the appellants, whom he identified in Court. He confirmed having sent the body of Barun for post-mortem, and

having collected the MLC (Ex. PW-15/A) as well as the post-mortem report (Ex. PW-2/A) of Barun. He further confirmed the fact that, on 14th

April, 1998, he arrested the appellant Shambhu, and that, on 28th April, 1998, the investigation was handed over to PW-14 Insp. S. S. Ramela.

Insp. P. S. Kansal was cross-examined, but nothing substantial emerged therefrom.

Const. Surender Singh, testifying as PW-4 during trial, confirmed having proceeded to the spot, in the house of Dayanand, where Barun had been

stabbed, at about 1:40 PM on 13th March, 1998, consequent to DD No. 13A (Ex. PW-4/A), recording the receipt of information regarding the

stabbing of Barun, having been marked to ASI Pratap Singh (PW-16) for enquiry and investigation. He confirmed that, on reaching the spot, they

found blood splattered on the ground, and that they were informed that Barun had already been taken to the Hospital. ASI Pratap Singh (PW-16)

proceeded to the Hospital, leaving him to guard the spot, and, on returning after some time (at about 4 PM), handed over, to him, the rukka (Ex. PW-

1/A), for the purpose of registration of FIR under Sections 302 and 323, read with Section 34 of the IPC. PW-4 further testified that he, thereupon,

proceeded to the Police Station and had the FIR (Ex. PW-1/B) registered, and that he returned to the sport of occurrence and handed over, to ASI

Pratap Singh, the FIR and a copy of the rukka. PW-4 corroborated the statement, of the other Police Witnesses, regarding the production, before PW-

16 ASI Pratap Singh, of the knife, by Umesh Singh (PW-8), and the preparation, by ASI Pratap Singh, of a sketch of the knife (Ex. PW-4/B), on

which he appended his signature. He also confirmed that the knife was sealed by ASI Pratap Singh, using his “PS†seal, and that the seal was,

thereafter, handed over to him. The knife was seized vide Seizure Memo Ex. PW-4/C.

PW-4 Const. Surender Singh was cross-examined. During cross-examination, he confirmed that, when he had reached the premises where Barun

had been stabbed, at about 2 PM, he did not find anyone having been apprehended. He deposed that PW-8 Umesh Singh met them on the spot, and

that the sketch and seizure memo of the knife was prepared before drawing up of the FIR. At the same time, he accepted that the sketch and the

seizure memo bore the number of the FIR, rather than that of the DD.

Further confirmation, regarding sealing and seizure of samples, depositing of the samples with the FSL and obtaining the reports thereof, was

provided by the depositions, during trial, of PW-8 HC Sh. Bhagwan, PW-14 Inspector S. S. Ramela and PW-10 Const. Jitender.

HC Sh. Bhagwan, the Moharrir Head Constable (Malkhana) the “MHC(M)†being in charge of the Malkhana, where the seized goods were

deposited before their dispatch for investigation and testing, testified as PW-8, and deposed, during trial, that, on 13th March, 1998, PW-16 ASI Pratap

Singh had deposited, with him, a package, bearing his seal “PSâ€, allegedly containing the knife with which Barun had been stabbed. He also

confirmed that, on 24th May, 1998, PW-14 Inspector S. S. Ramela had obtained, from him, the said parcel, in order to secure an opinion, regarding the

knife, after obtaining which he returned the parcel to him, sealed, this time, with the “KLS†seal of the doctor who had tendered the opinion,

namely Dr. K. L. Sharma (PW-2). He further confirmed that, on 26th May, 1998, he sent all the parcels, through PW-10 Const. Jitender, to the FSL,

for analysis, and deposed that, during the period when the parcels were in his custody, they remained intact, and were never tampered with.

PW-8 was not cross-examined, despite grant of opportunity.

The fact of depositing, of the four sealed parcels, two of which bore the “PC†seal and two the “KLS†seal, with the FSL, on 26th May,

1998, after obtaining the parcels from the MHC (M) on the same day, was also confirmed by Const. Jitender, deposing, during trial, as PW-10. He,

too, affirmed that, during the period the parcels had remained in his custody, they were not tampered with. He was not cross-examined, despite grant

of opportunity.

Inspector S. S. Ramela, deposing as PW-14 during trial, confirmed having been placed in charge of the investigation on 12th May, 1998. He also

confirmed having dispatched the above-mentioned four parcels, two of which bore the “KLS†and two the “PC†seal, to the FSL, through

PW-10 Const. Jitender. He further confirmed, in his testimony, that, on 23rd May, 1998, he had obtained the sealed parcel of the weapon of offence,

duly sealed with the “PC†seal, from the MHC (M), and had submitted an application (Ex. PW-14/A), for obtaining medical opinion in respect

thereof. On the said request being allowed, he testified that he had taken the parcel to the Civil Hospital and handed over to PW-2 Dr. K. L. Sharma,

who had tendered his opinion (Ex. PW-14/B) with respect thereto and returned the knife, to him, after affixing his seal (“KLSâ€) thereon.

Thereafter, he deposed, he had deposited the knife, sealed with the “KLS†seal, which the MHC (M). He, too, affirmed that, during the period

when the parcel had remained in his custody, it was not tampered with. PW-14 was not cross-examined, despite grant of opportunity.

Other witnesses

The MLC of Barun (Ex. PW-15/A) was approved by PW-15 M. K. Sharma, who was the Record Clerk at the Hospital. Dr. K. L. Sharma, who

was the Chief Medical Officer at the Hospital and had conducted the post-mortem of Barun, testified as PW-2. He confirmed having conducted the

post-mortem on Barun on 14th March, 1998, and that Barun had been brought to the Hospital by PW-16 Inspector P. S. Kansal at about 12:10 PM on

the said day. He also confirmed that the shirt, the baniyan and the underwear of Barun were blood smeared. He proved the post-mortem report

prepared by him (Ex. PW-2/A), as well as the contents thereof, and reiterated, during trial, that, in his opinion, the cause of death of Barun was

haemorrhagic shock consequent on a solitary stab injury, which was ante mortem and sufficient to cause death in the ordinary course of nature. He

also opined that Barun had died within 20 minutes of infliction of the said injury and that over 24 hours had passed since his death. PW-2 was not

cross-examined, despite grant of opportunity.

PW-2 was recalled for examination, with the leave of the Court, regarding the opinion, tendered by him with respect to the knife, on the application

(Ex. PW-14/A) submitted by PW-14 Inspector S. S. Ramela. He proved his opinion (Ex. PW-14/B), which was that the said knife, or any other such

like weapon, could have inflicted the injury, which resulted in the death of Barun. He identified the knife, in court, as the knife which had been shown

to him on 23rd May, 1998, and on which he had tendered his opinion. He also prepared a sketch of the knife (Ex. PW-14/B), and confirmed the fact

that the sketch prepared by Police (Ex. PW-4/B) had never been shown to him for comparison.

It becomes necessary, at this point, to specifically allude to the evidence that has emerged, with respect to the knife, with which, allegedly, Barun

was stabbed. The Seizure Memo, whereunder ASI Pratap Singh (PW-16) seized the knife, which had been handed over to him by Umesh Singh (PW-

8), on 13th March, 1998, refers to the knife as bloodstained. However, the FSL report (Ex. PX) records that, on the knife, which had been submitted

to the FSL for analysis, and to which the report refers as “Exhibit 3â€, no blood could be detected. Similarly, PW-2 Dr. K. L. Sharma, too, in his

opinion regarding the knife, as tendered on 23rd May, 1998 (Ex. PW-14/B), does not refer to any blood being found thereon. ASI Pratap Singh (PW-

16) too, when shown the knife in court, testified that the knife was the same “which (he) had taken into possession when it was produced in

bloodstained condition by Umesh Singhâ€​. Apparently, therefore, the knife, when produced in Court, was not bloodstained.

The only remaining witness, of consequence, was Anil Kumar Singh, the brother of the deceased Barun, who testified, during trial, as PW-12.

Though, during his evidence during trial, Anil Kumar Singh claimed to be an eyewitness to the stabbing of Barun, the learned ASJ has rightly rejected

his testimony as unworthy of credence, as his very presence, at the time and place of occurrence, was doubtful. A reading of the testimony of Anil

Kumar Singh would justify this finding of the learned ASJ as, according to the said witness, the entire occurrence took place, not at the room of Barun,

but at the house of one Ramcharit, his maternal uncle. This, the learned ASJ rightly holds, completely discredited the evidence of Anil Kumar Singh, as

an eyewitness to the stabbing of Barun. It is not necessary, therefore, to refer, in any further detail, to the testimony of Anil Kumar Singh, who

deposed as PW-12.

Depositions of appellants under Section 313, Cr.P.C.

Following the conclusion of the recording of evidence of the various prosecution witnesses, the depositions of the appellants before us, under

Section 313, Cr.P.C., was recorded by the learned ASJ. All the appellants denied having ever been involved, in any manner, in the stabbing of Barun

or, for that matter, even having been present in the room of Barun on the day of incident. They professed ignorance regarding the results of the

forensic investigation, the MLC of Barun, or his post-mortem report. They insisted that the case being foisted against them was false, and that the

witnesses, who had deposed against them were interested witnesses. They did not choose to lead any defence evidence, though they claimed not to

have been present at the time of incident.

Rival Submissions

Advancing submissions on behalf of the appellants, Mr. Satish Sharma, learned Counsel attempted to question the credibility of PW-8 Umesh

Singh, as an eye-witness to the incident. He submitted that the conduct of PW-8 was unusual as, if his nephew had been stabbed, there was no reason

for him to send him to hospital with someone else, instead of himself taking him for treatment. He also pointed out that the report, of the FSL (Ex. PX)

was that no blood had been found on the knife, which was alleged to be the weapon of offence. Blood, he pointed out, had been found only on the

clothes sent to the FSL for analysis, which were all of the deceased Barun himself. He emphasised the fact that, in his cross-examination, PW-8

Umesh Singh had admitted that it was difficult to identify the faces of the persons present in the room at the time of the alleged incident, and that he

had identified the appellants solely because other neighbours, who had arrived at the spot, referred to them by name. In any event, he submitted, there

was no justification for the conviction of Dalip or Ram. He sought to submit that the testimony of PW-8 Umesh Singh, during trial, was contradictory

to the statements of other witnesses, including PW-4 Const. Surender, who, in his deposition, did not refer to the production, before the Police, of Dalip

or Ram. Especial emphasis was laid, by Mr. Sharma, on the cross-examination of PW-4 during which he admitted that, when the Police reached the

site of occurrence, they did not find any person having been apprehended. This, he submits, was directly contrary to the testimony of PW-8. Mr.

Sharma took us through the testimony of PW-16 ASI Pratap Singh, to emphasise that it belied, in its entirety, the version put forth by PW-8 Umesh

Singh, in his evidence. In sum and substance, Mr. Sharma sought to contend that the prosecution could not be said to have established the guilt, of the

appellants, beyond reasonable doubt.

Arguing per contra, Mr. Ravi Nayak, learned APP, submitted that the law specifically envisioned conviction as being sustainable even on the sole

testimony of a credible eyewitness, and exhorted us, therefore, not to interfere with the impugned judgment of the learned ASJ. In his submission, the

version of the incident, as explained by PW-8 Umesh Singh, initially during the recording of his statement under Section 161, Cr.P.C. and, thereafter,

during trial, was coherent and credible, and inconsistencies between the two statements, if any, were minor and of no consequence. In all material

particulars, Mr. Nayak would submit, the two depositions, of PW-8 Umesh Singh, corroborated each other. He emphasised the fact that PW-8 Umesh

Singh, and the Police Witnesses, chiefly PW-16 ASI Pratap Singh, were ad idem regarding blood having been present on the knife, at the time but it

was produced by Umesh Singh. Apropos the reliance, by Mr. Sharma, on the examination-in-chief of PW-4 Const. Surender Singh, to the effect that,

when the Police reached the spot, they did not find anyone having been apprehended, Mr. Nayak draws our attention to the fact that, later during the

course of the same deposition, PW-4 denied the suggestion that Dalip and Ram were not arrested from the spot. Regarding the testimony, during trial,

of PW-16 ASI Pratap Singh, Mr. Nayak seeks to point out that the said witness had clearly stated, in his examination-in-chief as well as, later, during

cross-examination, that Dalip and Ram were produced, before the Police, by PW-8 Umesh Singh. Mr. Nayak points out, further, that Section 134 of

the Indian Evidence Act, 1872, clarified, unambiguously, that no particular number of witnesses were required, in any case, to prove a fact. He also

points out that, in view of the MLC report of Barun, the fact that his death had been caused by the single abdominal knife wound, suffered by him,

was beyond doubt. A holistic examination of the facts, and available evidence, submits Mr. Nayak, would bear out the correctness of the impugned

judgment of the learned ASJ, and would demolish the attempt, of the appellants, to assail the same. Mr. Nayak, however, acknowledges the fact that

Dalip was a juvenile at the time of commission of the offence and, therefore, submits that he could be granted the benefit thereof.

Analysis, and the sequitur

Analysing the evidence during the trial, in the light of well settled principles regarding appreciation of evidence â€" to which some reference has

already been made, in paras 10 to 15 supra â€" we are unable to convince ourselves that the prosecution has been able to prove the involvement of

the appellant, before us, in the stabbing of Barun, on 13th March, 1998, beyond reasonable doubt.

The case is entirely dependent on the testimony of PW-8 Umesh Singh. There is no forensic, or medical evidence, which would link any of the

appellants with the stabbing of Barun. For reasons best known to the prosecution â€" rather, to the I/O investigating the matter â€"the knife, with

which Barun was allegedly stabbed, was never sent for examining the presence of fingerprints thereon, as was candidly conceded by ASI Pratap

Singh, testifying as PW-16 during trial. As a result, the opportunity of securing the best evidence, which could possibly have clinched the issue of

whether the appellants â€" specifically Shambhu â€" were involved in the killing of Barun, was allowed to go abegging.

Again, for reasons which remained totally inexplicable, the I/O did not choose to co-opt any of the neighbours of Barun, as prosecution witnesses,

or record their statements during investigation, despite Umesh Singh, the star witness of the prosecution, having deposed, both in his examination-in-

chief as well as in his cross-examination, that the boys staying in the neighbouring rooms were eye-witnesses to the incident.

The result is that, owing to the extremely unsatisfactory manner in which investigation was conducted in the present case, we are left with the sole

testimony of Umesh Singh (PW-8), and have, therefore, to determine whether the conviction of the appellants would sustain, on the basis of the said

testimony alone.

We are constrained to hold that the answer, to this poser, has necessarily to be in the negative. While, on the evidence available, and the analysis

thereof, we may not be in a position to hold that the innocence of the appellants is conclusively established, we find, equally, the evidence woefully

insufficient to hold their guilt as having been definitively proved. More specifically, we are unable to hold, for reasons which would become apparent

presently, that the testimony of PW-8 Umesh Singh commands the requisite credibility, to be sufficient, as the sole evidence, to convict the appellants

of having committed the murder of Barun.

If we proceed, chronologically, through the events on the fateful day of 13th March, 1998, and the recital, thereof, by PW-8 Umesh Singh, we find

his testimony to be replete with inconsistencies, both within itself as well as vis-Ã -vis his deposition under Section 161, Cr.P.C., as also opposed to the

testimony of the Police witnesses, who have deposed in the case. We may demonstrate this position, thus:

(i) The tape-recorder: There are, in the testimony of PW-8 Umesh Singh during trial, vis-Ã -vis his testimony under Section 161, Cr.P.C. during

investigation, serious inconsistencies regarding the playing of the tape recorder, the volume of which appears to have acted as a flashpoint for the

altercation between Shambhu and Barun. According to the testimony of PW-8 during trial, he was having food, with Barun, in his room, where Barun

was playing his stereo. Shambhu came to Barunâ€s room and, immediately thereafter, increased the volume of the stereo, which was being played by

Barun. Barun requested Shambhu to reduce the volume of the stereo, which was refused by Shambhu, leading to the quarrel between them.

As against this, in his deposition under Section 161, Cr.P.C., PW-8 Umesh stated that, while he, and Barun, were having food in Barunâ€s room,

Shambhu started playing the tape recorder at a high volume, to which Barun objected, and requested Shambhu to tone down the volume of the tape

recorder. Shambhu refused and came to Barunâ€s room with Dalip and Ram. As against this, there is no reference, in the statement of the appellant,

under Section 161 of the Cr.P.C., to Shambhu having ever come to the room of Barun prior thereto, or to the tape recorder having been played by

Barun, the volume of which was increased by Shambhu, who had come to Barunâ€​s room.

The deposition of PW-8, under Section 161, Cr.P.C., and his testimony during trial are, therefore, discordant with respect to (a) the ownership of the

tape recorder, (b) the identity of the person who was playing the tape recorder before its volume is increased, (c) the location of the tape recorder,

and (d) the location of Shambhu, at the time when he increased the volume of the tape recorder. Inasmuch as the volume at which the tape-recorder

was being played, supposedly acted as the catalyst that sparked off the fight between the appellants, on the one hand, and Umesh Singh (PW-8) and

Barun, on the other, which culminated in the killing of Barun by Shambhu, any ambiguity or equivocation, in the testimony of Umesh Singh, with

respect thereto, assumes significance.

(ii) Arrival of Dalip and Ram on the scene: Carrying the point further, the statement of Umesh Singh, during investigation under Section 161, Cr.P.C.,

is also discordant with his testimony during trial, regarding the entry, on the scene, of the appellants Dalip and Ram. In his statement, under Section

161, Cr.P.C., PW-8 Umesh Singh deposed that, consequent on the disagreement between Barun and Shambhu, regarding the volume at which the

tape recorder was being played, Shambhu arrived at the spot with his friends Dalip and Ram (the exact words used, in vernacular, are “isi baat ko

lekar Shambhu apne anya do saathi Dalip Kumar va Ram Parvesh ko lekar aayaâ€), whereas, in his examination-in-chief during trial, PW-8 testified

that the quarrel between Barun and Shambhu had already started and “in the meanwhile accused Ram and the Dalip present in the court also

arrivedâ€. On the issue of whether Shambhu arrived at the room of Barun with his friends Dalip and Ram, i.e. the appellants before us, or whether

they arrived at the spot during the currency of the quarrel between Shambhu and Barun, too, there is discordance in the testimony of PW-8 during

trial, vis-Ã -vis his statement under Section 161, Cr.P.C.

(iii) Where did the incident occur? Again, regarding the place where the actual fight, involving Shambhu, Barun, PW-8 Umesh, Dalip and Ram, began,

PW-8 testified, during trial, that Dalip and Ram arrived at the room of Barun and caught hold of his hands, whereas, in his statement under Section

161, Cr.P.C., PW-8 deposed that the fight (“haathapaaiâ€) began in the chowk of the building. In his cross-examination, PW-8 deposed that the

incident had taken place inside the room of Barun and, almost immediately thereafter, amended his statement to say that the quarrel started in the

room of Barun, but that he was stabbed in the Chowk of the building.

(iv) Arrival of the neighbours: PW-8 deposed, during trial, that the boys staying in the neighbouring rooms had arrived after the scuffle, between

Shambhu and Barun had started, but before Shambhu went to his room and retrieved his knife. This was, to an extent, supported by his subsequent

deposition, in cross-examination, that “many persons saw the incidentâ€. As against this, in his statement under Section 161 of the Cr.P.C., PW-8

Umesh Singh stated that the neighbours had arrived after Barun was stabbed, he himself, i.e. Umesh Singh, was belaboured by Dalip, Ram and

Shambhu, and he raised a hue and cry. Significantly, as would be noted hereinafter as well, PW-4 Const. Surender Singh and PW-16 ASI Pratap

Singh, in their testimony during trial, deposed that, when they reached the spot, they found neither Umesh Singh, nor any of the appellants,

apprehended by any independent witness, present there, and that ASI Pratap Singh came across Umesh Singh only when he returned from the

hospital. If the testimony of Umesh Singh, as tendered during trial, were to be treated as true, several imponderables would result. For one, it is, ex

facie, difficult to believe that the neighbours, who had gathered at the spot during the initial quarrel between Shambhu and Barun, patiently waited and

watched while Shambhu went to his room, returned with his knife, stabbed Barun in the abdomen, with Dalip and Ram holding Barun down all the

while, and swung into action only after Umesh Singh himself had been assaulted, and had raised a hue and cry â€" which is what happened, if the

testimony, of PW-8 Umesh Singh, during trial, were to be believed. Moreover, if, in fact, many neighbours arrived during the scuffle, and witnessed

the murder of Barun why did the I/O not record the statement of any neighbours, or co-opt the neighbours who had witnessed the incident, as

prosecution witnesses? There is no ready answer.

(v) Arrival of the Police: Insofar as the arrival of the Police was concerned, PW-8 deposed, in his examination-in-chief during trial, that the Police had

arrived at 12:30 to 1 PM, whereupon he produced the appellants Dalip and Ram before them, and handed over the knife with which, allegedly, Barun

had been assaulted. Per contra, in his deposition under Section 161 of the Cr.P.C., during investigation, PW-8 Umesh Singh maintained that the

neighbours had arrived at the spot, and had got hold of Dalip and Ram, thereafter Sushil had taken Barun to the Hospital, and that it was at this stage

that the police arrived, and he handed over, to them, Dalip and Ram. In stark contradiction, both PW-4 Const. Surender Singh, as well as PW-16 ASI

Pratap Singh, testified, during trial, that, when they reached the place of occurrence, they did not find anyone to have been apprehended by any

independent witness, and did not find Umesh Singh at the spot, either. Rather, maintained PW-16 ASI Pratap Singh, it was only when he returned

from the Hospital, later, that he met Umesh Singh. Even at that stage, according to the testimony of ASI Pratap Singh, no independent witness was

present when Umesh Singh produced, before him, the appellants Dalip and Ram. These are significant contradictions, as, if the testimony of ASI

Pratap Singh were to be believed â€" and there is no reason why his testimony should be accorded any less credibility than that of PW-8 Umesh

Singh; if anything, as a disinterested witness, the testimony of PW-16 ASI Pratap Singh would be entitled to greater weight â€" the entire sequence of

events, prior to the return, from the hospital, of ASI Pratap Singh, is shrouded in obscurity. On the one hand, PW-8 Umesh Singh deposed that a

quarrel had erupted between Shambhu and Barun; Shambhu had arrived with a knife, with which he stabbed Barun; in the melee, the appellant, too,

sustained injuries and, during this time, the neighbours arrived and witnessed the incident and, thereafter, apprehended Dalip and Ram, at which time

the police arrived. On the other, Const. Surender Singh and ASI Pratap Singh maintained that, when they arrived at the spot, they neither found

Umesh Singh, nor any of the appellants, apprehended by any independent persons, present there. ASI Pratap Singh went on to depose that, even at

the stage when, after his return from the Hospital, he met Umesh Singh, who produced Dalip and Ram before him, no one else was present. The

appellants, in their statements under Section 313 of the Cr.P.C., denied the entire incident, as well as their presence in the room of Barun at the time.

In view thereof, the significance of the aforenoted inconsistency, between the deposition of PW-8 Umesh Singh, and that of PW-16 ASI Pratap Singh,

cannot be gainsaid.

(vi) Injuries suffered by Umesh Singh: While, in his statement under Section 161, Cr.P.C., as well as in his testimony in examination-in-chief during

trial, PW-8 Umesh Singh made no mention of the injuries suffered by him, or of his having bled at any point of time, in cross-examination, he testified

that he was bleeding and that, in fact, there were bloodstains on his shirt. This version is not supported by any of the Police Witnesses. In fact, PW-16

ASI Pratap Singh, on being queried, specifically testified that he did not remember whether the shirt of Umesh Singh was, or was not, bloodstained,

but confirmed that he had not taken the shirt for being subjected to forensic examination. The deposition, of Umesh Singh, that he had undergone

treatment, for the injuries suffered by him, “privatelyâ€, is also not supported by any documentary material, such as the prescription of a doctor, or

other evidence of his having undergone private treatment. It is also difficult to understand why, if Umesh Singh actually suffered a head injury, his

MLC was not conducted; significantly, the learned ASJ has found the allegation of the appellants having inflicted simple hurt on Umesh Singh not to

have been proved and has, accordingly, acquitted the appellants of the charge under Section 323, IPC.

(vii) The knife: In cases of homicide and murder by stabbing, the weapon of offence assumes considerable importance. In the present case, the knife,

with which, allegedly, the offence had been committed, was stated, by Umesh Singh (PW-8), in his testimony during trial, to have been

“bloodstained†â€" though, in his statement under Section 161, Cr.P.C., he does not say so. ASI Pratap Singh, deposing as PW-16, also testified,

during trial, that the knife, handed over to him by Umesh Singh, was bloodstained. Mysteriously, however, the FSL report (Ex. PX) specifically states

that no blood was detected on the knife which was submitted to the FSL for examination. The testimony of PW-8 HC Sh. Bhagwan, PW-10 Const.

Jitender, and PW-14 Insp. S.S. Ramela, who handled the sealed parcel, containing the knife, at various points of time, none of which was tested by

cross-examination despite grant of opportunity, bear out the fact that the knife was not tampered with, from the time it was sealed by ASI Pratap

Singh with his seal “PSâ€, till the time it reached the FSL bearing, by that stage, the “KLS†seal of Dr. K. L. Sharma (PW-2). The absence of

blood on the knife, therefore, would also cast doubt on the issue of whether the knife was, in fact, actually the weapon with which the offence was

committed, especially as the only evidence, to that end, was the testimony of PW-8 Umesh Singh, the knife itself never having been subjected to

fingerprint examination. We may rely, in this regard, on the following passage, from Bhusai v. State of U.P. (1970) 3 SCC 460:

“With regard to the question of blood not being found on the dagger, the High Court considered that this fact had no importance, because it is quite

possible that, in the long time that passed while Mohammad Akhtar carried the dagger from the place of occurrence to the Hospital and thence to the

police station, the blood may have been wiped off. On the face of it, this can be no explanation for absence of blood on the dagger. If Mohammad

Akhtar adopted the extraordinary course of carrying the dagger with him even to the hospital when taking Abdul Haq there, he would surely have

taken care to see that the blood on the dagger remains intact and does not get wiped off. In fact, the conduct of Mohammad Akhtar in taking the

dagger with him to the Hospital itself seems to be suspicious, particularly when, according to him, the assailants were captured and were left behind at

the scene of occurrence. The alternative explanation that the blood had disintegrated by the time the scrapings from the dagger could be tested by the

Chemical Examiner and the Serologist is also improbable, because the Serologist in his report was quite definite that there were no traces of blood in

the scrapings. If he had failed to find the blood due to disintegration, he would have said so in his report, as is usual in such cases where the Serologist

feels that there was blood, but, due to disintegration, proper test could not be applied, so that he could not certify its presence.â€​

The medical opinion, dated 23rd May, 1998 (Ex. PW-14/B), regarding the knife, as obtained from PW-2 Dr. K. L. Sharma, too, is of no help either

way, as PW-2 merely opined, in a markedly ambivalent vein, that the fatal abdominal injury sustained by Barun, could have been caused by the said

knife, or any such like weapon.

Lack of clarity regarding the weapon with which an offence of murder is committed, it is trite, acts as an inherently disabling factor, for the case

sought to be set up by the prosecution. Specific reference may be made, in this context, to the judgment, of a Division Bench of this Court in Ram

Karan v. State 2012 SCC OnLine Del 5485, in which it was held that, in view of the report, of the FSL, to the effect that no blood was found on the

knife, which was alleged to be the weapon of offence, the very recovery of the knife, as the weapon with which the offence had been committed,

became doubtful, resulting in entitlement, of the accused, to acquittal.

(viii) Prior relations between Shambhu and Barun: Here, again, there is stark contradiction, between the statement of PW-8 Umesh Singh, as recorded

under Section 161 of the Cr.P.C., and his testimony during trial. In his statement, recorded under Section 161, Cr.P.C., Umesh Singh specifically

stated that Shambhu and Barun had been on bad terms since several days, and were prone to fight over trivialities, and that, as they were both Biharis,

efforts were made to have the matter reconciled, instead of reporting it to the Police. Even so, stated Umesh Singh in his testimony under Section 161,

Cr.P.C., Shambhu used to threaten that he would not leave Barun, and would eliminate him. While, in his examination in chief, PW-8 did not refer to

the existence, or non-existence, of any earlier animosity between Shambhu and Barun, in cross-examination, PW-8 executed a complete volte face on

his deposition under Section 161, Cr.P.C., not only denying knowledge of any pre- existing animosity between Shambhu and Barun, but also denying

having ever told the Police that he, and Barun, chose not to file any complaint against Shambhu, for his indiscretions, and had solved the problem

themselves. This, again, is a significant aspect, impacting, as it does, substantially, the aspect of motive, for the commission of the crime in question.

While existing rivalry, with Barun, might have predisposed Shambhu to murderously assault him, in the absence of any such earlier animosity between

them, it is difficult to comprehend murder being committed merely because of the volume at which a tape recorder was being played. Even otherwise,

the inconsistency, between the statements of Umesh Singh, under Section 161 of the Cr.P.C., and, later, during trial, on the nature of the pre-existing

relationship between Shambhu and Barun, which is pivotal to the issue of whether Shambhu did, or did not, murder Barun, is too stark to be ignored.

(ix) Familiarity of Umesh Singh with the appellants: Regarding his familiarity with the appellants, too, the depositions of PW-8 Umesh Singh have been

vacillating. During the course of trial, in cross-examination, Umesh Singh asserted, first, that he knew all the three appellants before the incident and,

later, resiled by asserting that he did not know Dalip or Ram, but that they had been identified by other persons, present on the spot, by name. Per

contra, in his earlier statement, under Section 161, Cr.P.C., PW-8 Umesh Singh deposed that he knew all the three appellants, i.e. Shambhu, Dalip and

Ram, earlier. This factor, again, is significant as, in cross-examination during trial, PW-8 accepted that, as it was Holi, the faces of the assailants, who

assaulted Barun and himself, were covered with colour, and were difficult to identify. The involvement, at least of Dalip and Ram, in the incident,

would also become doubtful, if, as PW-8 testified in cross-examination during trial, he did not know who they were, and merely identified them on the

basis of the statements of the neighbours.

We are unable, in the face of the aforenoted factors, which, individually and cumulatively, completely erode, in our view, the credibility of the

testimony of PW-8 Umesh Singh, as tendered during the trial. The very recovery, of the weapon of offence, is cast in doubt, owing to the absence of

any blood having been detected, thereon during the course of FSL examination. The place where the quarrel took place, and where Barun was

allegedly stabbed, is also uncertain. In the face of the somersaulting, by PW-8, during the course of trial, on his earlier statement, regarding pre-

existing animosity between Shambhu and Barun, it is not possible to discern any reasonable motive, as would provoke Shambhu to murder Barun.

In juxtaposition with the above, the two most important features, of the testimony of PW-8 Umesh Singh, during trial, which militate against

treating the testimony as sufficient to maintain the conviction of the appellants, are the presence of the neighbours, and the position which was found

by the Police â€" specifically, PW-4 Const. Surender Singh and PW-16 ASI Pratap Singh â€" when they arrived at the scene. If the testimony of

PW-8, during trial, is to be accepted, it would mean that the neighbours had gathered at the spot during the initial stages of the scuffle between

Shambhu and Barun and that it was while they were so present, and witnessing the incident, that Shambhu left the room, proceeded to his room,

returned with a knife, and proceeded to violently stab Barun, using the knife, resulting in Barun falling unconscious, with an open abdominal wound

from which blood was profusely flowing. Even then, Shambhu managed to drop the knife and free from the spot, and it was only at this point that the

neighbours, who had been silently watching till then, were galvanised into action, and apprehended Dalip and Ram. If this were so and, as PW-8

maintained during cross-examination, there were many who had witnessed the incident, at defies comprehension that the I/O did not choose to interact

with or co-opt as prosecution witnesses, the said neighbours. As against this, the statement of Const. Surender Singh and ASI Pratap Singh was that,

when they reached the spot at about 2 PM, they did not find Umesh Singh there, nor did they find anyone having been apprehended. Rather, according

to ASI Pratap Singh, he met Umesh Singh, for the first time, only when he returned from the hospital, and it was only then that Umesh Singh

produced, before him, the appellants Dalip and Ram â€" at which time, too, according to ASI Pratap Singh, there was no one else on the scene. The

appellants, for their part, completely denied, in their statements under Section 313, Cr.P.C., having ever been at the spot, any involvement in the

stabbing of Barun. The very happening of the incident, and the manner in which it transpired, therefore, is cast in serious doubt, as a result of the stark

dissonance between the testimonies of PW-8 Umesh Singh, on the one hand and PW-4 Const. Surender Singh and PW-16 ASI Pratap Singh, on the

other.

In the face of the aforesaid, it becomes impossible for us to treat the testimony of PW-8 Umesh Singh, during trial, as sufficiently credible, as to

constitute a justifiable basis, to maintain the conviction of the appellants. We are, therefore, of the view that the prosecution has failed to marshal

sufficient credible evidence, as would suffice to convict the appellants, before us, of having committed offences under Section 302, with or without the

aid of Section 34 of the IPC.

We may profitably refer, in this context, to a recent decision of the Supreme Court, in Jagdish v. State of Haryana (2019) 7 SCC 711, which

specifically held, in circumstances which, facially at least, mirror those of the case before us, that it was unsafe to base conviction, on a charge of

murder, on the sole testimony of an eyewitness, especially when the eyewitness was related to the deceased.

Additionally, the following passage from Dinesh [State of Maharashtra v. Dinesh, (2018) 15 SCC 161], merits reproduction, in extenso:

“In Joseph v. State of Kerala , (2003) 1 SCC 465 : 2003 SCC (Cri) 35,6 this Court has observed that where there is a sole witness, his evidence

has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. In State of Haryana v. Inder Singh,

(2002) 9 SCC 537 : 2003 SCC (Cri) 1239, this Court has laid down that the testimony of a sole witness must be confidence inspiring and beyond

suspicion, thus, leaving no doubt in the mind of the Court. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC (Cri) 38,2 this

Court, after taking note of the aforementioned two judgments, observed that “the principles stated in these judgments are indisputable. None of

these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement

of the sole eyewitness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the

mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of

the accused in committing such a crimeâ€. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required

to be judged by the court to place credence on the statement (Seeman v. State, (2005) 11 SCC 142: 2005 SCC (Cri) 1893).â€​

(Emphasis supplied)

The evidence of PW-8 Umesh Singh, we are constrained to hold, falls way short of the rather exacting standards, to which the afore extracted

passage refers.

We are, therefore, of the opinion that, in convicting the appellants on the basis of the sole evidence of PW-8 Umesh Singh, who claimed to be an

eyewitness to the murder of Barun, the learned ASJ has erred in failing to examine, holistically, all the aspects of the case, which, comprehensively

reviewed, completely discredit the testimony of Umesh Singh as sufficient to justify, on its sole strength thereof, the conviction of the appellants before

us.

We may note, before concluding this judgment, that, consequent on receipt of a report, dated 21st January, 2020, it emerges that Dalip, one of the

appellants before us, was a juvenile on 13th March, 1998, when Barun was stabbed and died. He would, therefore, in any case be entitled to the

benefit of juvenility; however, as we find all the appellants, before us, to be entitled to acquittal, albeit by extending, to them, the benefit of doubt, we

deem it unnecessary to enter into this aspect.

Conclusion

In view of the above discussion, these appeals succeed and are allowed. The impugned judgment, dated 26th November, 2001, and order on

sentence, dated 14th December, 2001, passed by the learned ASJ, whereby the appellants stand convicted for having committed offences under

Section 302, read with Section 34 of the IPC, and sentenced, consequently, to rigourous imprisonment for life, are quashed and set aside. The

appellants are acquitted of the charges against them. Bail Bonds, if any, executed by the appellants, would stand discharged.

The record of the learned ASJ be returned forthwith.