Holding

A conviction cannot be upheld where the sole eye‑witness is not wholly reliable and lacks independent corroboration; the appellant is acquitted.

Summary

Anil Phukan and his brothers were convicted under Sections 302 and 34 of the IPC for the murder of Trinayan Chandra Baruah, based primarily on the testimony of a single eye‑witness, the deceased's nephew. The Supreme Court examined whether a conviction can rest on such testimony without independent corroboration and whether the prosecution proved the participation of all three accused beyond reasonable doubt. It found the eye‑witness, being a relative of the deceased, was not wholly reliable and that the medical evidence supported the theory that only one assailant (Mahendra) inflicted the fatal injuries. No independent corroboration linked Anil to the assault, and the origin of the dispute was unclear. Consequently, the Court granted Anil the benefit of doubt, set aside his conviction and sentence, and acquitted him.

Issues considered

Can a conviction be sustained on the testimony of a sole eye‑witness without independent corroboration?
Did the prosecution establish the participation of all three brothers in the murder beyond reasonable doubt?
Does the medical evidence corroborate the prosecution's claim that multiple assailants were involved?
Should the benefit of doubt be granted where the evidence against the accused is infirm?

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 34

Subjects

IPC 302Section 34murdereyewitness testimonycorroborationbenefit of doubtacquittalcriminal law

Judgment

...., ANILPHUKAN A
v.
STATE OF ASSAM

MARCH 17, 1993
B
(DR. AS. ANAND AND N.P. SINGH, JJ.]

Indian Penal Code, 1860:

Sections 302 and 34-Appellaht and his brothers inflicting blows on
deceased-Prosecution case that words and abuses exchanged between appel- c
lqni and deceased regarding repaymellt of loart-Later assault ensuetf--Medi-
-,, cal evidence consistent with theory that deceased assaulted by only on~
~
ptrsort-#'hether conviction can be based on the testimony of sole eye
witness-Held accused entitled to benefit of doubt. .
D
The prosecution alleged that the appellant borrowed a sum of Rs.
450 from the deceased and had executed two hand notes Ex. 7 and Ex. 8,
promising to repay the amount on 21.3.1976. On the said date the
deceased accompanied by his nephew, PW.3 proceeded to the village of the
appellant and as he was getting late, PW.3 carried with him a torch light.
~ The distance of the house of the deceased from that of the appellant was E
about one furlong. The appellant was present in the fields in front of his
'house and on being asked as to why he had not come to return the money,

- he asked them to wait there and proceeded towards his house. When the
appellant did not return for some time, the deceased alongwith PW.3
proceeded-towards the house of the appellant when they found him and F
his two brothers coming towards them variously armed, one had a crow-
~- bar while the others had a crooked dao and a kupi dao with them. PW.3
apprehended some danger from the appellant and his brothers, but his
uncle told him that since they had done no wrong, they need not be afraid
of any assault. On coming near the deceased and PW.3, one of the
brothers gave a blow with a crowbar, while the other two brothers as- G
saulted the deceased thereafter. PW.3 pulled the deceased towards his
~-. boose and implored the accused not to assault him. At the asking of bis
uncle PW.3 ran away to his house and gave the information to the wife of
the deceased and also narrated the occurrence to PW.4. The wife of the
deceased went to PW.6, and after telling him as to what bad been told to H
389
.
390 SUPREME COURT REPORTS (1993) l. S.C.R.

A her by PW3 she requested him to accompany her to the place of occnr-
rence. On reaching the place of occurrence, they found him lying on the
....
spot with injuries on his person bnt he was still alive. Two of the PWs
brought a bullock cart and PW.7 after lifting the body with some difficulty
brought it to his house and kept it in the verandah. However, before any
medical aid could be provided, the deceased succumbed to the injuries at
B
night.

The first information report was lodged at the police station at 1230
p.m. by PW.2. During the investigation, some weapons including an axe
were seized from the house of the accused and on the same day one of the
c brothers was arrested at 6.45 p.m. and the other two brothers surrendered
subsequently in the court. The Investigation Officer prepared a sketch of
the place of occurrence and sent the body for post-mortem examination.
The appellant alongwith his brothers were tried for offences under section
302/34 !PC for the murder of the deceased, and the Sessions Judge
convicted all the three brothers for the said offence and sentenced them
. ,.-

D for life.

On appeal by the three brothers the Division Bench of the High
Court upheld the conviction and sentence of all .the three.

The instant SLP was admitted as regards one petitioner only and
E
notice was issued. The S.L.P. of the s~cond petitioner was dismissed while ~
the third brother did not file any appeal.

F
Allowing the appeal and acquitting the appellant, this court,

HELD: 1. Conviction can be based on the testimony of a single
eye-witness and there is no rule of law or evidence which says to the
--
contrary provided the sole eye witness ·passes the test of reliability.. So long
~
as the single eye-witness is a 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 a wholly reliable witness, in the sense
G that there are some circumstances which may show that he could have an
interest in the prosecution, then the courts generally· insist upon some
independent corr.oboration of his testimony, In material particnlars,
~
before recording conviction. It is only when the courts find that the single
eye-witness is a wholly unreliable witness that his testimony is discarded
H in toto and no.amount of corroboration can cure that defect. [393E·F)
ANIL PHUKAN v. STATE OF ASSAM [ANAND, J.] 391

2. The instant case, the medical evidence is consistent with the theory A
that the deceased had been assaulted only by one person and not by all the
three brothers as alleged by the prosecution. The possibility, therefore, that
Mahendra accused alone had caused injuries on the deceased cannot be
ruled out. May be on account of the recovery of the two bonds Ext. 7 and Ext
8, from the house of Anil, he was also implicated. [395G]
B
3. The origin of the fight is totally obscure, and the prosecution bas
: not explained the genesis of the origin of the fight either. It is n'!t ev.en the
case of the prosecution that Anil had refused to repay the loan or that any
hot words or abuses had been exchanged between Anil and the deceased
when the later had demanded from him the repayment of the loan.
[395H, 396A]
c
4. In view of the infirmities of the prosecution evidence it would not
Ji. be safe to rely upon the testimony of Ajoy PW.3, the sole eye-witness,
without looking for independent corroboration and as already noticed; the
corroboration furnished by the prosecution, unlike in the case or D
Mahendra the appellant's brother, is negative in character in so far as the
·involvement of Anil appellant is concerned. (3968]

5. The appellant, was held entitled to the benefit of doubt and
granting him that benefit, his conviction and sentence for the offence
under Section 302/34 !PC were set aside. [396C] E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
757 of 1985.

From the Judgment and Order dated 6.11.1984 of the Gauhati 8:igh
Court in Criminal Appeal No. 11 of 1979. F
Sunil Kumar Jain, P.D. Tyagi and Vijay Hansaria for the Appellant.

S.K. Nandy for the Respondent.

The Judgment of the Court was delivered by
G
DR. ANAND, J. Anil Phukan and his brothers Mahendra Phukan and
Jojneswar Phukan were tried for an offence under Section 302/34 IPC for
the murder of one Trinayan Chandra Baruah on 21.3.1976 at about 8 p.m.
The learned Sessions Judge convicted all the three brothers for the said
offence and sentenced each one of them to suffer imprisonment for life • H
392 SUPREME COURT REPORTS [1993] 2 S.C.R.

A An appeal was preferred by all the three brothers against their conviction
and sentence in the Gauhati-High Court. A Division Bench of that court
vide judgment dated 6.11.1984 upheld the conviction and sentence of all
the three. A Special Leave Petition (Cr!.) No. 561/85, was preferred by
Mahendra Nath Phukan, and Anil Phukan, the third brother Jojneswar,
however, did not file any special leave petition. On 2.9.1985, the special
B
leave petition as regards Mahendra Nath Phukan was dismissed while
notice was issued in the petition as regards Anil Phukan. Subsequently, on
29.10.1985, special leave was granted to Anil Phukan and on 29.4.1986, he
was also directed to be released on bail to the satisfaction of the Chief Juell.
Magistrate, Golaghat; Assam. We are, therefore, at this stage concerned
C only with the crimi~al appeal, by special leave, of ~il Phukan.

In brief, the prosecution case is that the appellant, Anil Phukan had
borrowed a sum of Rs_ 450 from Trinayan Chandra Baruah, deceased and
had executed two hand notes Ex. 7 and Ex. 8, promising to repay the
D amount on 21.3.1976. However, he did not repay the amount. On 21.3.1976,
the deceased accompanied by his nephew, Ajoy Baruah PW3, proceeded
to the village of the appellant an<;! as he was getting late, Ajoy Baruah PW3
carried with him a torch light. The distance of the house of the deceased
from that of the appellant is about one furlong. Anil appellant was present
in the fields in front of his house and on being asked as to why he had not
E come to return the money, he asked them to wait there and proceeded•
towards his house. Later on, when Anil did not return for some time, the
deceased alongwith Ajoy PW3 proceeded towards the house of the appel-
lant when they found all the three brothers coming towards them variously
armed. Mahendra had a crowbar while jojneswar had a crooked dao and
F Anil a kupi dao. Ajoy PW3 apprehended some danger from the appellant
and his brothers bui his uncle told him that since they had done no wrong,
they need not be afraid of any assault. On coming near the deceased and
Ajoy PW3,. Mahendra, who came first, gave a blow to Trinayan on his head
with the crowbar, the other two brothers also allegedly assaulted the
G deceased thereafter. Aj_oy PW3 pulled the deceased towards his house and
implored the.accused not to assault him. At the asking of his uncle, Ajoy
PW3 ran away to his house and gave the information to the wife of the
deceased PW5 Debayani Baruah, about the occurrence. He also narrated
the occurrence to PW4, Bijoy Baruah. the wife of the deceased went to
PW6, Punaram Gogoi, and after telling him as to what had been told to
H her by A1oy PW3, she requested him to accompany her to the place of
ANIL PHUKAN v. STAIB OF ASSAM [ANAND, J.] 393

occurrence. On reaching the place of occurrence, they found Trinayan A

"" lying on the spot with injuries on his person but he was still alive. PWs
Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW7 and after
lifting the bc;dy of Trinayan with some difficulty brought it to his house and
kept it in the verandah. However, before any medical aid could be
provided, the deceased succumbed to the injuries at night. The first infor-
mation report was lodged at Golaghat Police Station the next day in the
B
:i
afternoon at 12.30 p.m. by Surendra Nath Gogoi PW2. During the inves-
ligation, some weapons including an axe were seized from the house ' of
Mahendra accused. On the same day, Mahendra was arrested at about 6.45
p.m. The other two brothers Anil and Jojneswar surrendered subsequently
in the court. The LO. prepared the sketch plan of the place of occurrence c
and sent the body for post-mortem examination. The autopsy revealed that
the deceased had two incised injuries on the head besides one swelling and
.;;
~ an injury on the inner part of his thigh. The prosecution in all examined
12 witnesses to connect lhe accused with the crime.
\ D
This case prima,rly hinges on the testimony of a single eye witness
Ajoy PW3. Indeed, conviction can be based on the testimony of a single
eye-witness and there is no rule of law or evidence which says to the
contrary provided the sofo witness passes the test of reliability. So long as·
the single eye-witness is a wholly reliable witness the courts have no
difficulty in basing conviction on his testimony alone. However, where the E
single eye-witness is not found to be a wholly reliable witness, in the sense
that there are some circumstances which may show that he could have an
interest in the prosecution, then· the courts generally insist upon some

- independent corroboration of his testimony, in material particulars, before
recording conviction. It is only when the courts find that the single eye-
witness is a wholly unreliable witness that his testimony i~ discarded in toto
F
and no amount of corroboration can cure that defect. It is in the light of
these settled principles that we shall examine the testimony of PW3 Ajoy.

Ajoy PW3, on his own showing, is the nephew of the deceased. He
had accompanied the deceased to the place of occurrence when the later G
went to recover the loan from Anil appellant. This witness, therefore, is a
..._ relative of the deceased and an interested witness. Of course, mere
' relationship wit]l the deceased is .no ground to discard his testimony, if it
is otherwise found to be reliable and trustworthy. In the normal course of
events, a close relation would be the last person to spare the real assailant H
394 SUPREME COURT REPORTS (1993] 2 S.C.R.

A -of his uncle and implicate a false person. Howev~r, the pos~ibility that he
may also implicate some innocent person- along with the- real assailant
cannot be ruled out and therefore, as a matter cif prudence, we shall look
for some independent corroboration of his testimo-ny, to decide· about the
involvement of the appellant in the crime. Since, there are some doubtful
aspects in the conduct of Ajoy PW3, it would not be safe to accept )1is
B evidence without some independent corroboration, direct or circumstan-
tial.
The unnatural conduct of Ajoy PW3 which has come to our notice
from the record is that though he was present alongwith the deceased at
C the time ·of occurrence, o;;- 213.1976, at about 8 p.m., he made no attempt
to_ save his uncle from the assault He did not even continue to stay there,-
though of i:ourse according to him, he ran for his life on being advised so
by his .uncle. He was not assaulted· though both he and his uncle were
unarmed. Even if Mahendra was engaged in assaulting the deceased, Ani1,
who was also allegedly armed neither made an attempt to assault Ajoy PW3
D nor even chased him. PWJ Ajoy did not himself lodge the FIR. Of course,
he gave information about the occurrence to PW4, PW5, PW7 and others
inlmediately after the occurrence describing the manner of assll.ult and the
names of the assailants but why he did not lodge the FIR has not been
explained· by him; In his testimony in the C<ll!J:.t, he deposed that after
E Mahendra accused gave blow with the crowbar on the head of the deceased
'other accused alSo assaulted him". He did not describe as to on which part
of the body of the deceased, had Anil and Jojneswar caused the injuries
and made a general vague statement without assigning any particular injury
to either of them. When we look to the medical evidence, we find that the
deceased.had suffered two injuries on his head and no other injury on any
F other part ofthe body. In all, four injuries were rec<Vded in the post-n{or-
tem report. The other two injuries, according to the doctor, could have
been the result of a fali and indeed looking to the nature of those injuries,
which are in the nature of a swelling on the back of the interscapular region
and a lacerated wound on the interior aspect of the right thigh, it is possible
G to agree with the medical witness PWl Dr. Ganesh Ch. Buragohain, that
those injuries could have been caused by a fall and were n9( the result of
any direct impact with a weapon of assault. Both the- li{,,d injuries are
almost of the same dimensions. The possibility, therefore,' that both the
injuries had been caused to the deceased by Mahendra with the crowbar,
H who according to PW3 had hit the deceased on the head_ cannot be ruled

--
ANIL PHUKAN v. STATE OF ASSAM [ANAND, J.] 395

~· o.ut. In this connectilln, it would also be relevant to not that according to A
• the testimony of the Investigating Officer, PWll Abhiram Taye, all the
weapons like the crowbar Ex.MS, a dao, an axe and a hand dag were
recovered only from the house of Mahendra. We have it from the testimony
of PW3 ·and the first informant PW2 that all the three brothers lived
separately. No recovery was affected from the house of the appellant Anil
at all. All that was seized from his house were two bonds Ex.7 and Ex.8,
B
A
undertaking to repay the loan to the deceased. Unlike Mahendra accused
he was not even arrested on the date of the occurrence and the mere ipse ·
dixit of the investigating officer, that Anil had absconded is not acceptable,
particularly when the investigating officer is totally silent as to where all he
had made the search for the appellant and when. He was not questioned c
under Section 313 Cr. PC about the allegation of absconding either. The
deceased was still alive when his wife and the other co-villagers, who have

• . appeared as witness reached the place of occurrence. The deceased did
not name the appellant as his assailant before anyone. The crowbar Ex. 5
was recovered from the house of Mahendra and according to the testimony
of PW3, it was the same weapon with which Mahendra had hit deceased
D
on his head which position also receives corroboration from medical
evidence. The deposition of PW4, who is the sister of PW3 Ajoy to the
effect that when Ajoy PW3 came running to the house, he told h,er that her
•
uncle had been killed by Anil and his brothers does not stand scrutiny
because admittedly according to PW3 himself, when he ran from the place E
~ . of occurrence, the deceased was still alive and as a matter of fact he was
alive even when the wife of the deceased and other neighbours reached
there and brought him to the house. It was only at the house while the
deceased was kept in the verandah that he succumbed to the injuries.
There could have been, therefore, no occasion for Ajoy PW3 to have told
his sister PW4, that her uncle had been 'killed' by Anil and his brothers.
F
This also shows that Ajoy PW3 has the tendency to exaggerate matters.
)...
The medical evidence is consistent with the theory that the deceased had
been assualted only by one person and not by all the three brothers as
alleged by the prosecution. The possibility, therefore, that Mahendra ac-
cused alone had caused injuries on the deceased cannot be ruled out. May G
be on account of the recovery of the two bonds Ex.7 and Ex.8 from the
•
house of Anil, he was also implicated. We cannot be sure. The origin of
~- the fight is totally in obscure and the prosecution has not explained the
genesis of the origin of the fight either. It is not even the case of the
prosecution that Anil had refused to repay the loan or that any hot words H
396 SUPREME COURT REPORTS [1993) 2 S.C.R.

A or abuses had exchanged between Anil and the deceased when the later ~
had demanded from him the repayment of the loan. In view of the infir-
mities pointed out above, it would not be safe to rely upon the testimony
'of Ajoy PW3, the sole eye-witness, without looking for independent cor-
roboration and as aln:ady noticed, the corroboration furnished by the
B prosecution unlike in the case of Mahendra, is negative in character in so
far as the involvement of Anil appellant is concened. >
In our considered opinion, therefore, it would not be safe to hold
that the prosecution has established its case against Anil appellant beyond
a reasonable doubt. The appellant, in our opinion, is entitled to the benefit
of doubt and granting him that benefit, we set aside his conviction and
' c sentence for the offence under Section 302/34 IPC and consequently the
judgment of the High Court in so far as Anil appellant is concerned, is set
aside and he is hereby acquitted.

Anil appellant is on baiL His bail bonds shall stand discharged.

N.V.K. Appeal allowed.