Janak @ Janaksao Vs. State of Bihar - Court Judgment

Excerpt:
evidence act, 1872, section 3 - indian penal code, 1860, sections 302 and 34--testimony of father of deceased--said to be present at time of murder--appreciation of--murder committed by four persons--by causing tangi, bhujali and lathi blow on neck and other parts of body--alleged sole eye-witness being father, but no attempt made by him to help his son--shows unnatural behaviour--his testimony also found inconsistent with medical evidence--certain material contradictions also found in his testimony and statement given to police--these infirmities leading to inference that he is not reliable and puts doubt in his presence too at time of murder--thus, his testimony cannot be made basis for conviction. - - 1 and 2 braj mohan prasad and ghuran prasad, this fact is well proved that o. so admittedly this fact is well proved that the deceased was do to death sometime in the night of 9/10.10.92. 10. so far participation of these appellants, the informant (p. but the informant has categorically stated that he was neither assaulted nor he was chased and has himself left the place, without raising any alarm to attract the witnesses having residence nearabout 13. moreover, the evidence of the informant is inconsistent and appears to be suspicious and at least this much can be said that he is not wholly reliable for the reason that he made inconsistent statement before the i. in that view of the matter, the witness can be termed as not wholly reliable. if the witness is not wholly reliable and also interested in securing the conviction of the appellant, then there is no two opinion that conviction of the appellants cannot be recorded on the testimony of such solitary witness. it was held by the apex court that if a single witness is wholly reliable witness, the courts have no difficulty in basing conviction on his testimony alone. however, where the single eye-witness is not found to be wholly reliable witness in the sense then there was some circumstance which may show that he could have an interest in the prosecution, then the court generally insist upon some independent witness for corroboration of his testimony. the case in had is similar to the case of anil phukan (supra) and the principle laid down by the apex court clearly indicates that in the instant case also the presecution relied upon the sole testimony of an interested witness that is the father of the deceased and his presence at the time of occurrence is being contradicted by the medical evidence and surrounding circumstances and the conduct of the deceased in not raising any alarm to save his son or to take the help of the neighbours who got their houses near to the p. 17. so from the discussions made above,we are of the opinion that it is thoroughly unsafe to rely upon the testimony of the sole witness, that is, the informant, for the reasons mentioned above. loknath prasad and n.n. singh, jj.1. criminal appeal nos. 162/94-r; 175/94-r, 177/94-r and 157/94-r were taken up together as all these appeals had arisen from the common judgment of conviction passed by sri r.c. sathi, sessions judge, cumla, in sessions trial no. 6/93 through which ail these appellants were convicted and sentenced to undergo rigorous imorisonment for life under section 302/34 ipc this common judgment will dispose of all these four appeals.2. criminal appeal no. 162/94-r had been preferred by janak @ ram janak sao; criminal appeal no. 175/94-r had been preferred by indrajit sao and similarly in criminal appeal no. 177/94-r and 157/94-r sheodayal sao and churan sao are the appellants.3. the prosecution case, in short, is that the informant phaiju mahto of village murkunda within cumla p.s. in the evening of 9.10.92 alongwith his son rambriksh mahato had gone to neighbouring village tirra in the house of gajendra mahato (p.w. 7), the son-in-law of rambriksh and they stayed there in the night. it has been alleged that on the next day, that is, on 10.10.92 at about 4.30 a.m., both of them left in a scooter for their home village bhurkunda and rambriksh was driving the scooters whereas the informant was sitting behind and when they reached bhurkunda village near the bari of one bali sao, then all of a sudden indrajit sao the appellant came from a bush and asked his son who was sarpanch to stop the vehicle. accordingly, rambriksh stopped the scooter. it is also the prosecution case that in the meantime, other appellants armed with tangi, balua, lathi etc. came and they surrounded them. then the informant got down from the scooter and first of all indrajit sao gave a balua blow on the neck of rambriksh and after that other appellants assaulted by tangi bhujali and lathi on the neck, hand and other parts of the body. then the informant escaped away from that place and rushed to his relation in village tirra and informaed about the occurrence and then the informant came again with his relations of tirra and other villagers and found his son dead on the road and the scopter was also lying near the deadbody. the motive for the occurrence had also been alleged by the informant that there was prior enmity between the appellants and the deceased regarding the bus- fare and for that they committed the murder of the deceased.4. the officer-in-charge, cumla p.s. who is the i.o. of this case came to the p.o. on getting rumour about the murder and recorded the fardbayan of the informant, who is the father of the deceased on 10.10.92 at 10.15 hours at the p.o. and prepared the inquest of the deceased and seizure of blood-stained earth was made on the spot. the deadbody was sent to cumla for post-mortem examination and after completing the investigation, charge-sheet was submitted as against all the appellants.5. all the appellants claimed themselves innocent and denied to have taken part in this occurrence and it is their defence that the deceased being a sarpanch had enmity with several persons and probably he was done to death not in the morning of 10.10.92 but in the night by unknown persons and even the informant had not seen the occurrence and in the morning of 10.10.92, the informant had gone to cumla for selling vegetable and as such only to implicate the appellant this false case was instituted against them. the trial court, believed the prosecution story and convicted and sentenced the appellants in the manner indicated above. being aggrieved and dissatisfied with this order of conviction, all the appellants preferred this appeal and had challenged the findings of the court below.6. to prove the case, on behalf of the prosecution as many as nine witnesses were examined. but admittedly p.w. 6 phaiju mahato who is the informant in this case and the father of the deceased, is the solitary eye-witness; whereas p.ws. 1 and 2 are simply witnesses of seizure and p.w. 3 tilak prasad, p.w. 4 lakhan prasad, p.w. 5 rajendra prasad mehta and p.w. 7 gajendra mahto how are all close relation of the informant and they all simply came to the p.o. subsequent to the occurrence and learnt about the occurrence from the informant. similarly p.w. 8 is the doctor who held the post-mortem examination on the deadbody of the deceased and p.w. 9 is krishna singh, i.o.7. admittedly, the defence has not challenged the factum of murder of the deceased which took place sometime in the night of 10.10.92 in village murkunda near the bari of one bali sao which is on the village road. the prosecution has heavily relied upon the solitary witness of the occurrence, that is, p.w. 6 who is the informant himself and the father of the deceased.8. p.w. 6, the father of the deceased, is the sole eye-witness and the prosecution case depends wholly on the evidence of this witness. according to this witness, one day prior to the occurrence, that is, friday on 9.10.92, he along with his son rambriksh, the deceased, had gone to village tirra in a scooter in the house of gajendra mahto, the son-in-law of the deceased, to see the ailing son of gajendra and in the night, they stayed there and in the morning at 4.30 a.m. or so both of them left for their home village murkunda which is admittedly contiguous to tirra in a scooter. it is also his evidence that rambriksh was driving the vehicle and he was sitting behind and when they reached near his village murkunda near the bari of one bali sao, then he had seen the appellant inderjit armed with balua and he asked them to stop and rambriksh stopped the vehicle. then the other appellants who were also armed with lathi and tangi came and first of all inder gave balua blow on the neck and then other appellants also assaulted. due to that the deceased had fallen on the ground and then he rushed to village tirra to inform his relations and informed tilak who is his samdhi and then again he came to the p.o. with tilak and other witnesses and found the deadbody of his son lying on the ground and near that the scooter was also lying on the ground and he disclosed to the other witnesses about the entire incident. it is also his evidence that about: 10 a.m. or so, the o.c. of cumla p.s. came to the p.o. suo motu and recorded his fardbayan and the officer-in-charge also seized the scooter and blood-stained earth near the p.o. and deadbody was sent for post-mortem examination.9. admittedly from the evidence of the i.o. who has figured as p.w. 9 and that of the seizure list witnesses, that is, p.w. 1 and 2 braj mohan prasad and ghuran prasad, this fact is well proved that o.c. came to the p.o. at about 10 a.m. so on 10.10.92 on hearing a rumour and recorded the fardbayon of the informant on the spot and found the deadbody of the deceased with injuries and so inquest was prepared and the scooter and blood-stained earth was seized in presence of p.ws. 1 and 2 and deadbody was sent for autopsy. p.w. 8 dr. hemant kumar held post-mortem examination on the deadbody of the deceased on that very date and found as many as 11 incised wounds on the neck and verious parts of the body and also two bruises and according to the doctor, the death was due to the aforesaid anti-mortem injuries within 24 hours from the time of post-mortem examination. the defence has also not challenged the homicidal death of the deceased. so admittedly this fact is well proved that the deceased was do to death sometime in the night of 9/10.10.92.10. so far participation of these appellants, the informant (p.w. 6) is the solitary witness and he had simply claimed that while he was returning from the house of p.w. 7 gajendra, son in law of deceased, the appellants waylaid them and assaulted the deceased in his presence near the bari of bali sao. the defence has seriously challenged the testimony of this witness and the presence of this witness at the time of occurrence on various grounds-and also the surrounding circumstances and more particularly the conduct on the evidence of this witness. admittedly it is the evidence of this witness that he alongwith the deceased on the previous night had gone to see the ailing son of the deceased in village tirra. but this very important fact that they had gone to tirra to see the ailing son of p.w. 7 was developed for the first time in the trial court and this fact has not been stated to the i.o. either during his examination or even in the fir. moreover, from the evidence of p.w. 7, this fact is clear that his son had a simple fever which he got only on friday and for that no doctor was called for his treatment. so it was contended on behalf of the defence that in such a situation going together by the father and the son to see the ailing son of p.w. 7 is a developed story to make the presence of the informant, further-more the evidence of p.w. 6 also suffers from various infirmities and his conduct is highly suspicious and unlike that of a father.11. according to the informant, the occurrence took place in his own village murkunda a about 5 a.m. or so near the bari of bali sao. it has come in evidence that near the p.o. there are several houses and the informant and his other witnesses had also admitted that they had no enmity with those persons. in such a situation, it is really surprising that the informant had not raised any alarm and had not gone to any person near about the p.o.; rather rushing to village tirra and only those witnesses have come to support the prosecution as hearsay witnesses who are of village tirra and close related to the informant. furthermore, from the evidence of the i.o. it can be said that he had not taken the pain to example any of the witnesses who got their houses near the p.o. or definitely those witnesses were present after the occurrence at the p.o., but those witnesses were not examined. the genesis of the trouble also appears to be not such a serious which can give an impression that for such minor incident the accused persons will be so annoyed as to commit the murder of the deceased. the genesis of the trouble, according to the prosecution, that the deceased got matador bus and for payment of fare there was some dispute earlier, but from the evidence of p.w. 3 it is clear that prior to the occurrence, the deceased sold that matador bus,. in that view of the matter, thee was not a serious dispute between the appellants and the deceased which compelled the appellants to commit the murder of the deceased. moreover, admittedly the deceased and the sole eye-witness had gone to tirra in the night of 9.10.92 and returned on the next date at about 4.30 a.m. or so. in such a situation, the most surprising factor is as to how the appellants could learn that in such an odd time, the deceased will return to his village so that they were waiting to waylaid him.12. the peculiar feature of the case is also that the sole-eye-witness has claimed that he was all along present at the time of assault and after the assault he escaped away but surprisingly if there was such an enmity, then in such a situation, it was the most natural conduct on the part of the accused persons also to assault the solitary eye-witness not only to take the revenge in full way but also to destroy the evidence. but the informant has categorically stated that he was neither assaulted nor he was chased and has himself left the place, without raising any alarm to attract the witnesses having residence nearabout13. moreover, the evidence of the informant is inconsistent and appears to be suspicious and at least this much can be said that he is not wholly reliable for the reason that he made inconsistent statement before the i.o. and also before the court. before the i.o. he has stated that prior to the assault, he escaped and got himself concealed in a bush and had seen the entire occurrence from the bush; whereas in the court, he gave a vivid description that he all through remained standing till assault was complete and he had not concealed himself in the bush. furthermore, the very presence of the informant appears to be doubtful and the manner of occurrence as claimed by the prosecution also appears to be doubtful in view of the fact that the occurrence took place, according to the prosecution, at about 5 a.m. or so and the doctor who conducted the post-mortem examination found undigested food and the doctor also admitted in his cross-examination that he agrees with the view of modi that if undigested food will be found that leads to an inference that the death took place within 2-3 hours of eating of the last food. p.w. 3 in his cross- examination admitted that the deceased took his meal in the previons night at about 9.30 or so. if that is so, the occurrence might have taken place at about 12.30 or so and thus the presence of the informant that he was going alongwith the deceased in the early morning, appears to be suspicious and doubtful.14. thus from the discussions made above and from the surrounding circumstances, it can be said that the solitary eye-witness is no doubt a close relation and it is a settled law that close relation's evidence cannot be discarded and only to be examined with care and caution and as such his evidence appears to be shaky, suspicious and his presence appears to be doubtful. in that view of the matter, the witness can be termed as not wholly reliable. if the witness is not wholly reliable and also interested in securing the conviction of the appellant, then there is no two opinion that conviction of the appellants cannot be recorded on the testimony of such solitary witness.15. learned counsel for the appellant in support of this contention relied upon a case law of supreme court reported in : 1993crilj1796 , anil phukan v. state of assam. it was held by the apex court that if a single witness is wholly reliable witness, the courts have no difficulty in basing conviction on his testimony alone. however, where the single eye-witness is not found to be wholly reliable witness in the sense then there was some circumstance which may show that he could have an interest in the prosecution, then the court generally insist upon some independent witness for corroboration of his testimony. it was also held that where the alleged single eye-witness being a close relative of the deceased was an interested witness and though alleged to be present at the place of occurrence, but did not attempt to save the deceased and also his statement about the time of occurrence was contradictory to medical evidence, the testimony of the said e ye-witness could not be relied upon and conviction could not be recorded. the case in had is similar to the case of anil phukan (supra) and the principle laid down by the apex court clearly indicates that in the instant case also the presecution relied upon the sole testimony of an interested witness that is the father of the deceased and his presence at the time of occurrence is being contradicted by the medical evidence and surrounding circumstances and the conduct of the deceased in not raising any alarm to save his son or to take the help of the neighbours who got their houses near to the p.o. and as such his evidence cannot be relied upon for recording an order of conviction.16. so far other witnesses are concerned, that is, p.w. 2 ghuran prasad, p.w. 3 tilak prasad, p.w. 4 lakhan prasad, p.w. 5 rajendra prasad mahto and p.w. 7 gajendra mahto are concerned, they are all very close relations of the informant and they are merely hearsay witnesses and they came to p.o. after the occurrence and learnt about the incident from the informant. if the testimony of the informant is not to be accepted,then automatically these hearsay witnesses' evidence is not of any help to the prosecution.17. so from the discussions made above,we are of the opinion that it is thoroughly unsafe to rely upon the testimony of the sole witness, that is, the informant, for the reasons mentioned above. in that view of the matter, the order of conviction and sentence as recorded by the district and sessions judge, gumla, in sessions trial no. 6/93 is hereby set aside and all these appeals are allowed. the appellants janak @ ram janak sao, indrajit sao and sheodayal sao are in jail custody so they are to be released from the jail custody forthwith if not required in any other case and the other appellant ghuran sao is on bail. he is discharged from the liability of his bail-bond.

Judgment:

Loknath Prasad and N.N. Singh, JJ.

1. Criminal Appeal Nos. 162/94-R; 175/94-R, 177/94-R and 157/94-R were taken up together as all these appeals had arisen from the common judgment of conviction passed by Sri R.C. Sathi, Sessions Judge, Cumla, in Sessions Trial No. 6/93 through which ail these appellants were convicted and sentenced to undergo rigorous imorisonment for life under Section 302/34 IPC This common judgment will dispose of all these four appeals.

2. Criminal Appeal No. 162/94-R had been preferred by Janak @ Ram Janak Sao; Criminal Appeal No. 175/94-R had been preferred by Indrajit Sao and similarly in Criminal Appeal No. 177/94-R and 157/94-R Sheodayal Sao and Churan Sao are the appellants.

3. The prosecution case, in short, is that the informant Phaiju Mahto of village Murkunda within Cumla P.S. in the evening of 9.10.92 alongwith his son Rambriksh Mahato had gone to neighbouring village Tirra in the house of Gajendra Mahato (P.W. 7), the son-in-law of Rambriksh and they stayed there in the night. It has been alleged that on the next day, that is, on 10.10.92 at about 4.30 a.m., both of them left in a scooter for their home village Bhurkunda and Rambriksh was driving the scooters whereas the informant was sitting behind and when they reached Bhurkunda village near the bari of one Bali Sao, then all of a sudden Indrajit Sao the appellant came from a bush and asked his son who was Sarpanch to stop the vehicle. Accordingly, Rambriksh stopped the scooter. It is also the prosecution case that in the meantime, other appellants armed with tangi, balua, lathi etc. came and they surrounded them. Then the informant got down from the scooter and first of all Indrajit Sao gave a Balua blow on the neck of Rambriksh and after that other appellants assaulted by tangi Bhujali and lathi on the neck, hand and other parts of the body. Then the informant escaped away from that place and rushed to his relation in village Tirra and informaed about the occurrence and then the informant came again with his relations of Tirra and other villagers and found his son dead on the road and the scopter was also lying near the deadbody. The motive for the occurrence had also been alleged by the informant that there was prior enmity between the appellants and the deceased regarding the bus- fare and for that they committed the murder of the deceased.

4. The Officer-in-charge, Cumla P.S. who is the I.O. of this case came to the P.O. on getting rumour about the murder and recorded the fardbayan of the informant, who is the father of the deceased on 10.10.92 at 10.15 hours at the P.O. and prepared the inquest of the deceased and seizure of blood-stained earth was made on the spot. The deadbody was sent to Cumla for post-mortem examination and after completing the investigation, charge-sheet was submitted as against all the appellants.

5. All the appellants claimed themselves innocent and denied to have taken part in this occurrence and it is their defence that the deceased being a Sarpanch had enmity with several persons and probably he was done to death not in the morning of 10.10.92 but in the night by unknown persons and even the informant had not seen the occurrence and in the morning of 10.10.92, the informant had gone to Cumla for selling vegetable and as such only to implicate the appellant this false case was instituted against them. The trial court, believed the prosecution story and convicted and sentenced the appellants in the manner indicated above. Being aggrieved and dissatisfied with this order of conviction, all the appellants preferred this appeal and had challenged the findings of the court below.

6. To prove the case, on behalf of the prosecution as many as nine witnesses were examined. But admittedly P.W. 6 Phaiju Mahato who is the informant in this case and the father of the deceased, is the solitary eye-Witness; whereas P.Ws. 1 and 2 are simply witnesses of seizure and P.W. 3 Tilak Prasad, P.W. 4 Lakhan Prasad, P.W. 5 Rajendra Prasad Mehta and P.W. 7 Gajendra Mahto How are all close relation of the informant and they all simply came to the P.O. subsequent to the occurrence and learnt about the occurrence from the informant. Similarly P.W. 8 is the doctor who held the post-mortem examination on the deadbody of the deceased and P.W. 9 is Krishna Singh, I.O.

7. Admittedly, the defence has not challenged the factum of murder of the deceased which took place sometime in the night of 10.10.92 in village Murkunda near the bari of one Bali Sao which is on the village road. The prosecution has heavily relied upon the solitary witness of the occurrence, that is, P.W. 6 who is the informant himself and the father of the deceased.

8. P.W. 6, the father of the deceased, is the sole eye-witness and the prosecution case depends wholly on the evidence of this witness. According to this witness, one day prior to the occurrence, that is, friday on 9.10.92, he along with his son Rambriksh, the deceased, had gone to village Tirra in a scooter in the house of Gajendra Mahto, the son-in-law of the deceased, to see the ailing son of Gajendra and in the night, they stayed there and in the morning at 4.30 a.m. or so both of them left for their home village Murkunda which is admittedly contiguous to Tirra in a scooter. It is also his evidence that Rambriksh was driving the vehicle and he was sitting behind and when they reached near his village Murkunda near the bari of one Bali Sao, then he had seen the appellant Inderjit armed with Balua and he asked them to stop and Rambriksh stopped the vehicle. Then the other appellants who were also armed with lathi and tangi came and first of all Inder gave balua blow on the neck and then other appellants also assaulted. Due to that the deceased had fallen on the ground and then he rushed to village Tirra to inform his relations and informed Tilak who is his Samdhi and then again he came to the P.O. with Tilak and other witnesses and found the deadbody of his son lying on the ground and near that the scooter was also lying on the ground and he disclosed to the other witnesses about the entire incident. It is also his evidence that about: 10 a.m. or so, the O.C. of Cumla P.S. came to the P.O. suo motu and recorded his fardbayan and the Officer-in-charge also seized the scooter and blood-stained earth near the P.O. and deadbody was sent for post-mortem examination.

9. Admittedly from the evidence of the I.O. who has figured as P.W. 9 and that of the seizure list witnesses, that is, P.W. 1 and 2 Braj Mohan Prasad and Ghuran Prasad, this fact is well proved that O.C. came to the P.O. at about 10 a.m. so on 10.10.92 on hearing a rumour and recorded the fardbayon of the informant on the spot and found the deadbody of the deceased with injuries and so inquest was prepared and the scooter and blood-stained earth was seized in presence of P.Ws. 1 and 2 and deadbody was sent for autopsy. P.W. 8 Dr. Hemant Kumar held post-mortem examination on the deadbody of the deceased on that very date and found as many as 11 incised wounds on the neck and verious parts of the body and also two bruises and according to the doctor, the death was due to the aforesaid anti-mortem injuries within 24 hours from the time of post-mortem examination. The defence has also not challenged the homicidal death of the deceased. So admittedly this fact is well proved that the deceased was do to death sometime in the night of 9/10.10.92.

10. So far participation of these appellants, the informant (P.W. 6) is the solitary witness and he had simply claimed that while he was returning from the house of P.W. 7 Gajendra, son in law of deceased, the appellants waylaid them and assaulted the deceased in his presence near the bari of Bali Sao. The defence has seriously challenged the testimony of this witness and the presence of this witness at the time of occurrence on various grounds-and also the surrounding circumstances and more particularly the conduct on the evidence of this witness. Admittedly it is the evidence of this witness that he alongwith the deceased on the previous night had gone to see the ailing son of the deceased in village Tirra. But this very important fact that they had gone to Tirra to see the ailing son of P.W. 7 was developed for the first time in the trial court and this fact has not been stated to the I.O. either during his examination or even in the FIR. Moreover, from the evidence of P.W. 7, this fact is clear that his son had a simple fever which he got only on friday and for that no doctor was called for his treatment. So it was contended on behalf of the defence that in such a situation going together by the father and the son to see the ailing son of P.W. 7 is a developed story to make the presence of the informant, further-more the evidence of P.W. 6 also suffers from various infirmities and his conduct is highly suspicious and unlike that of a father.

11. According to the informant, the occurrence took place in his own village Murkunda a about 5 a.m. or so near the bari of Bali Sao. It has come in evidence that near the P.O. there are several houses and the informant and his other witnesses had also admitted that they had no enmity with those persons. In such a situation, it is really surprising that the informant had not raised any alarm and had not gone to any person near about the P.O.; rather rushing to village Tirra and only those witnesses have come to support the prosecution as hearsay witnesses who are of village Tirra and close related to the informant. Furthermore, from the evidence of the I.O. it can be said that he had not taken the pain to example any of the witnesses who got their houses near the P.O. or definitely those witnesses were present after the occurrence at the P.O., but those witnesses were not examined. The genesis of the trouble also appears to be not such a serious which can give an impression that for such minor incident the accused persons will be so annoyed as to commit the murder of the deceased. The genesis of the trouble, according to the prosecution, that the deceased got Matador bus and for payment of fare there was some dispute earlier, but from the evidence of P.W. 3 it is clear that prior to the occurrence, the deceased sold that Matador bus,. In that view of the matter, thee was not a serious dispute between the appellants and the deceased which compelled the appellants to commit the murder of the deceased. Moreover, admittedly the deceased and the sole eye-witness had gone to Tirra in the night of 9.10.92 and returned on the next date at about 4.30 a.m. or so. In such a situation, the most surprising factor is as to how the appellants could learn that in such an odd time, the deceased will return to his village so that they were waiting to waylaid him.

12. The peculiar feature of the case is also that the sole-eye-witness has claimed that he was all along present at the time of assault and after the assault he escaped away but surprisingly if there was such an enmity, then in such a situation, it was the most natural conduct on the part of the accused persons also to assault the solitary eye-witness not only to take the revenge in full way but also to destroy the evidence. But the informant has categorically stated that he was neither assaulted nor he was chased and has himself left the place, without raising any alarm to attract the witnesses having residence nearabout

13. Moreover, the evidence of the informant is inconsistent and appears to be suspicious and at least this much can be said that he is not wholly reliable for the reason that he made inconsistent statement before the I.O. and also before the court. Before the I.O. he has stated that prior to the assault, he escaped and got himself concealed in a bush and had seen the entire occurrence from the bush; whereas in the court, he gave a vivid description that he all through remained standing till assault was complete and he had not concealed himself in the bush. Furthermore, the very presence of the informant appears to be doubtful and the manner of occurrence as claimed by the prosecution also appears to be doubtful in view of the fact that the occurrence took place, according to the prosecution, at about 5 a.m. or so and the doctor who conducted the post-mortem examination found undigested food and the doctor also admitted in his cross-examination that he agrees with the view of Modi that if undigested food will be found that leads to an inference that the death took place within 2-3 hours of eating of the last food. P.W. 3 in his cross- examination admitted that the deceased took his meal in the previons night at about 9.30 or so. If that is so, the occurrence might have taken place at about 12.30 or so and thus the presence of the informant that he was going alongwith the deceased in the early morning, appears to be suspicious and doubtful.

14. Thus from the discussions made above and from the surrounding circumstances, it can be said that the solitary eye-witness is no doubt a close relation and it is a settled law that close relation's evidence cannot be discarded and only to be examined with care and caution and as such his evidence appears to be shaky, suspicious and his presence appears to be doubtful. In that view of the matter, the witness can be termed as not wholly reliable. If the witness is not wholly reliable and also interested in securing the conviction of the appellant, then there is no two opinion that conviction of the appellants cannot be recorded on the testimony of such solitary witness.

15. learned Counsel for the appellant in support of this contention relied upon a case law of Supreme Court reported in : 1993CriLJ1796 , Anil Phukan v. State of Assam. It was held by the Apex Court that if a single witness is wholly reliable witness, the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be wholly reliable witness in the sense then there was some circumstance which may show that he could have an interest in the prosecution, then the court generally insist upon some independent witness for corroboration of his testimony. It was also held that where the alleged single eye-witness being a close relative of the deceased was an interested witness and though alleged to be present at the place of occurrence, but did not attempt to save the deceased and also his statement about the time of occurrence was contradictory to medical evidence, the testimony of the said e ye-witness could not be relied upon and conviction could not be recorded. The case in had is similar to the case of Anil Phukan (supra) and the principle laid down by the Apex Court clearly indicates that in the instant case also the presecution relied upon the sole testimony of an interested witness that is the father of the deceased and his presence at the time of occurrence is being contradicted by the medical evidence and surrounding circumstances and the conduct of the deceased in not raising any alarm to save his son or to take the help of the neighbours who got their houses near to the P.O. and as such his evidence cannot be relied upon for recording an order of conviction.

16. So far other witnesses are concerned, that is, P.W. 2 Ghuran Prasad, P.W. 3 Tilak Prasad, P.W. 4 Lakhan Prasad, P.W. 5 Rajendra Prasad Mahto and P.W. 7 Gajendra Mahto are concerned, they are all very close relations of the informant and they are merely hearsay witnesses and they came to P.O. after the occurrence and learnt about the incident from the informant. If the testimony of the informant is not to be accepted,then automatically these hearsay witnesses' evidence is not of any help to the prosecution.

17. So from the discussions made above,we are of the opinion that it is thoroughly unsafe to rely upon the testimony of the sole witness, that is, the informant, for the reasons mentioned above. In that view of the matter, the order of conviction and sentence as recorded by the District and Sessions Judge, Gumla, in Sessions Trial No. 6/93 is hereby set aside and all these appeals are allowed. The appellants Janak @ Ram Janak Sao, Indrajit Sao and Sheodayal Sao are in Jail custody so they are to be released from the jail custody forthwith if not required in any other case and the other appellant Ghuran Sao is on bail. He is discharged from the liability of his bail-bond.