DENY BORAversusSTATE OF ASSAM

                  [2014] 7 S.C.R. 1111


                         DENY BORA                                  A
                               V.
                     STATE OF ASSAM
             (Criminal Appeal No. 679 of 2013)
                      AUGUST 27, 2014
                                                                    B
  [DIPAK MISRA AND ABHAY MANOHAR SAPRE, JJ.]

    Penal Code, 1860:

     s. 302 - Conviction on testimony of sole eye-witness -         c
Propriety of - A doctor shot dead by two miscreants -
Conviction by Designated Court uls 302, but acquittal in TADA
offence - Held: Trial court has placed reliance on the
evidence of a witness who has come forward for recording his
statement u!s 161 CrPC almost after two years and eight             0
months - The only explanation he has given is that he was
threatened by the co-accused - Six years after his statement
was recorded, accused was arrested - The plea of threat to
keep him silent for almost two years and eight months does
not inspire confidence - His testimony is thoroughly and            E
wholly unreliable - Therefore, conviction recorded by
Designated Court on his testimony alone without any
corroboration is totally unsustainable - Conviction is set aside.

    Evidence:
                                                                    F
     Non-examination of material witnesses - A doctor shot
dead by two miscreants in his clinic - Deceased's daughter,
who was eye-witness and wife who was slightly away from
scene of occurrence, not examined - Held: Both the wife and
the daughter of deceased are the most natural and competent         G
witnesses - They really could have throwrrimmense light on
the factual score, but, they have not been examined - In the
absence of any explanation, , their non-examination has
affected prosecution case - The prosecution has otherwise
                             1111                                   H
    1112   SUPREME COURT REPORTS             [2014] 7 S.C.R..

A not been able to establish the case against appellant and,
   therefore, non-examination of material witnesses cannot be
   regarded as inconsequential.

      The appellant was prosecuted for committing
  offences punishable u/s 302/34 IPC read with s.314 of
8
  TADA in connection with the death of a doctor, who was
  shot dead in his clinic while attending the patients. The
  Investigating Officer examined a number of witnesses
  who had heard about the occurrence from the daughter
  and wife of the deceased. Two years and 8 months after
C the incident statement of PW 14 was recorded uls 161
  CrPC. After about eight years of the incident the appellant
  was arrested. The Designated Court acquitted him of the
  offences under the Terrorist and Disruptive Activities
  (Prevention) Act, 1987, but convicted and sentenced him
D to imprisonment for life uls 302 IPC.

       Allowing the appeal, the Court

      HELD: 1.1. There is no dispute over the fact that the
E deceased was fired from the point blank range, as is
  evident from the post mortem report. Therefore, the death
  is homicidal, is beyond doubt. [para 8] [1118-B-C]

       1.2. As regards the culpability of the appellant, it is
  manifest that neither the wife nor the daughter of the
F deceased has been examined. Non-examination of
  material witnesses would not always create a dent in the
  prosecution's case. However, as has been held in the
  case of Gian Chand* the charge of withholding a material
  witness from the court levelled against the prosecution
G should be examined in the background of facts and
  circumstances of each case so as to find out whether the
  witnesses were available for being examined in the court
  and were yet withheld by the prosecution. That apart, the.
  court has first to assess the trustworthiness of the
H evidence adduced and available on record. If the court
         DENY BORA v. STATE OF ASSAM                    1113


finds the evidence adduced worthy of being relied on           A
then the testimony has to be accepted and acted on
though there may be other witnesses available who
could also have been examined but were not examined.
Another aspect which is required to be seen is whether
such witness or witnesses are the only competent               B
witnesses who could have been fully capable of
explaining correctly the factual situation. [paras 9 and 12]
[1118-D; 1120-D-G]

                                                    =
    State of H.P. v. Gian Chand 2001 (3) SCR 247 2001
(6) SCC 71; Surinder Kumar v. State of Haryana 2011 (12)       C
 SCR 1205 = 2011 (10) SCC 173; Takhaji Hiraji v. Thakore
Kubersing Chamansing (2001) 6 SCC 145; Dahari v. State
of U.P. 2012 (8) SCR 1219 = 2012 (10) SCC 256 - referred
to.
                                                               D
    1.3. In the case at hand, the daughter of the deceased
was the eye witness and his.wife was slightly away from
the scene of occurrence. They are the most natural and
competent witnesses. They really could have thrown
immense light on the factual score, but for the reasons        E
best known to the prosecution, they have not been
examined. fn the absence of any explanation whatsoever
and also regard being had to their presence at the place
of occurrence, this Court is of the considered opinion that
their non-examination has affected the case of the             F
prosecution. The prosecution has otherwise not been
able to establish the case against the appellant and,
therefore, non-examination of the material witnesses
cannot be regarded as inconsequential. [para 12] [1120-
H; 1121-A-D]                                                   G
    1.4. It is well settled in law that conviction can be
based on the testimony of a singular witness. It has been
held in Sunil Kumar** that as a general rule the court can
and may act on the testimony of a single witness provided
he is wholly reliable. There is no legal impediment in         H
    1114    SUPREME COURT REPORTS               [2014] 7 S~C.R.

A convicting a person on the sole testimony of a single
  witness. That is the logic of s.134 of the Evidence Act,
  1872. But, if there are doubts about the testimony, the
  courts will insist on corroboration. [para 12) [1121-D-F]

       **Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 3
8
    SCC.169; Namdeo v. State of Maharashtra 2007 (3)
    SCR 939   =2007 (14) SCC 150 - referred to.
       1.5. In the case at hand, the trial court has placed
  reliance on the sole testimony of PW-14 who has come
C forward for recording his statement u/s 161 CrPC almost
  after two years and eight months. The only explanation he
  has given is that he was threatened !>Y the co-accused. It
  is interesting to note after his statement was recorded, the
  accused was arrested after six years and nothing
D happened to him during the said period. Besides, his
  acquaintance with the accused-appellant was hardly a
  fortnight old, but he along with the appellant and another
  had gone to the clinic of the deceased. It is in his evidence
  that the accused-appellant had fired at the deceased as a
E result of whith he fell down and died. That the said witness
  could keep such an incident without disclosing to anyone,
  defies prudence and baffles commonsense. His plea of
  being threatened for such a long period to have the
  sustained silence, is unacceptable and this Court holds
F that his testimony is thoroughly and wholly unreliable.
  Therefore, this Court is of considered view that the
  conviction recorded by the Designated Court on his
  testimony alone without any corroboration is totally
  unsustainable. The judgment of conviction is set aside.
G [para 13-14] [1121-G, H; 1122-A-E]
                        Case Law Reference:
       2011 {12) SCR 1205         referred to       para 9
       2001 (3) SCR 247           referred to       para 9
H
          DENY BORA v. STATE OF ASSAM                       1115

   (2001) s sec 145              referred to         para 10        A
   2012 (8) SCR 1219             referred to         para 11
   (2003) 3 sec 169              referred to         para 12

   2007 (3) SCR 939              referred to         para 12        B
    CRIMINAL APPELLATE. JURISDICTION : Criminal Appeal
No. 679 of 2013.
                                                        .
    From the Judgment and Order dated 02.03.2013 in the
Hon'ble Designated Court of Assam at Guwahati in TADA               c
Sessions Case No. 47 of 2001.

     P.K. Goswami, .A Henry, Vikas Singh for the f:.ppellant.

     Navnit Kumar, Corporate Law Group for the Respondent.
                                                                    D
     The Judgment of the Court was delivered by

      DIPAK MISRA, J. 1. The present appeal is preferred
under Section 19 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 ("TADA" for short) assailing the E
judgment passed by the Designated Court, Guwahati in TADA
Sessions Case No. 47 of 2001, whereby the Designated Court
has acquitted the Appellant under TADA on the foundation that
there is no material to implicate him under the provisions of
TADA and found that there is adequate material to con.vict him
under Section 302 of the-Indian Penal Code, 1860 ("IPC" for F
short) and accordingly recorded the conviction and sentenced
him to undergo rigorous imprisonment for life with fine of.
Rs.50,000/-, in default, to suffer further rigorous imprisonment
for five years.
                                                                      G
      2. The prosecution case, as unfolded, is that on 2.3.1991
 about 6.30 p.m., the deceased, Dr. Swapan Sathi Barman, a
 medical practitioner, while attending to the patients in his clinic,
was shot by two unidentified youths from the point blank range
 as a consequence of which he breathed his last. An FIR was H
    1116    SUPREME COURT REPORTS               [2014] 7 S.C.R.

A lodged by one Kumud Bora on the following day i.e. 3.3.1991
  at Jamuguri police station under Sonitpur district and on the
  basis of the said FIR Station Case No. 20/91 u/s 302/34 IPC
  read with Sections 3/4 of TADA was registered which set the
  criminal law in motion.
B
       3. During investigation, certain incriminating documents
  belonging to Assam United Reservation Movement were
  recovered from the residence of one Martan Dey of Tupia
  Gaon. The Investigating Officers examined number of witnesses
C who had heard about the occurrence from the wife and daughter
  of the deceased and on 04.11.1993, they recorded the
  statement of Suren Hazarika, PW-14, under Section 161 CrPC.
  His statement under Section 164 CrPC was also recorded.
  Thereafter, on the basis of the statement of Hazarika, steps
  were taken to apprehend the accused-appellant, and eventually
D on 20.02.1999 he was arrested and ultimately charge sheet
  was filed before the Trial Court on 29.07.2001.

       4. The prosecution in order to prove its case examined 17
  witnesses out of which many were formal witnesses and the
E investigating officers as the investigation was carried out by
  three officers. The two relevant witnesses are Dr. Prabhash Kr.
  Barman, PW-17, who had conducted the post mortem and
  Suren Hazarika, PW-14, who claims to be the eye witne~s.

       5. After the examination of the witnesses cited on behalf
F of the prosecution was over, statement of the accused under
  Section 313 CrPC was recorded in which he pleaded not guilty
  and took the stand of false implication. The defence chose not
  to adduce any evidence. The Designated Court did not find any
  material to show complicity of the accused in any of the
G offences in respect of which charges had been framed under
  the TADA and accordingly opined that he was not guilty of the
  same. However, as has been stated earlier, the Designated
  Court found that the prosecution had brought home the charge
  under Section 302 IPC against the accused. For arriving at the_
H
          DENY BORA v. STATE OF ASSAM                       1117
                [DIPAK MISRA, J.]

said conclusion, as the reasoning of the Designated Court            A
would reveal, it has placed reliance on the testimony of PWs-
14 and 17.

      6. Mr. Goswami, learned senior counsel for the appellant,
criticizing the judgment of the Designated Court, has submitted
                                                                     B
that there can be no cavil over the proposition that a conviction
can rest on the sole testimony of a singular witness but the said
witness has to be absolutely reliable so that the credence can
be given to his testimony. In the case at hand, submits Mr.
Goswami, PW-14 has surfaced after two years eight months             C
by availing the specious plea that he was threatened and
therefore, he could not apprise the investigating agency about
the occurrence which makes his version absolutely incredible.
It is also contended by him that as per the prosecution story,
the wife was inside the house and the daughter, Ms. Prantika
Barman, who was with the deceased, have not been examined            D
and such non-examination of material witnesses, in the
absence of any explanation, creates a dent in the prosecution's
story. Learned senior counsel would further submit that a
 reference to the post mortem report by the learned trial Judge
 is inconsequential except that it proves the homicidal death, but   E
 unfortunately, the same has been treated as a part of the
evidence to prove the guilt of the accused which is
impermissible.

     7. Mr. Navneet Kumar, learned counsel appearing for the         F
State of Assam, per contra, would contend that the explanation
offered by PW-14 about his revealing of the incident in a
belated manner because of the threat given by the co-accused,
namely, Dul Bhuyan, deserves to be accepted because the
witnesses in certain circumstances do behave in a peculiar           G
manner regard being had to their individual mental framework,
personal courage and disposition in life. Learned counsel would
further submit that the evidence of PW-14 deserves acceptation
as it is reliable and the Designated Court has correctly
                                                                     H
    1118     SUPREME COURT REPORTS                  [2014) 7 S.C.R.


A appreciated the same and, therefore, the view expressed by it
  as regards the conviction, cannot be found fault with.

        8. Be it noted that there is no dispute over the fact that the
  deceased was fired from the point blank range. The post
  mortem would reveal that he had suffered two injuries, namely,
8
  (i) one wound on the right side of the face near the outer angle
  of the right eye, size %" x %" with inverted margin and (ii) one
  would present on the left side of the neck just below the ear.
  Size 1" x %"with averted margin and the cause of death was
  due to shock and hemorrhage as a result of bullet injuries
C sustained by the deceased. Therefore, the death is homicidal
  is beyond doubt.

       9. The question that arises for consideration is whether the
  prosecution has been able to establish the involvement of the
D appellant in the crime in question. As is manifest, neither the
  wife nor the daughter of the deceased has been examined.
  Submission of Mr. Goswami is that they are natural witnesses
  and no explanation has been given for their non-examination
  and hence, adverse inference against the prosecution deserves
E to be drawn. He has drawn inspiration from the authority in
  Surinder Kumar v. State of Haryana 1 wherein it has been held,
  though in a different context, that a failure on the part of the
  prosecution in non-examining the two children, aged about six
  and four years respectively, when both of them were present
F at the site of the crime, amounted to failure on the part of the
  prosecution. In this context, reference to the decision in State
  of H.P. v. Gian Chand2 would be profi_table. The Court while
  dealing with non-examination of material witnesses has
  expressed that:-

G        "14 ... Non-examination of a material witness is not a
         mathematical formula for discarding the weight of the
         testimony available on record, howsoeve'r natural,
         trustworthy and convincing it may be. The charge of

H 1. (2011) 10 sec 173.
            DENY BORA v. STATE OF ASSAM                     1119
                  [DIPAK MISRA, J.]
     withholding a material witness from the court leveled           A
     against the prosecution should be examined in the
     background of the facts and circumstances of each case
     so as to find whether the witnesses are available for being
     examined in the court and were yet withheld by the
     prosecution."                                                   B

      The three-Judge Bench further proc~ded to observe that
·the court is .required first to assess the trustworthiness of the
 evidence available on record and if the court finds the evidence
 adduced worthy of being relied on, then the testimony has to        C
 be accepted and acted upon though there may be other
 witnesses available who could also have been examined but
 were not examined.

     10. ·In Takhaji Hiraji v. Thakore Kubersing Chamansing3
and others the Court has ruled that it is true that if a material    D
witness, who would unfold the genesis of the incident or an
essential part of the prosecution case, not convincingly brought
to fore otherWise, or where there is a gap or infirmity in the
prosecution case which could have been supplied or made
good by examining a witness .lf\/ho though available is not          E
examined, the prosecution case can be termed as suffering
from a deficiency and withholding of such a material witness
would oblige the court to draw an adverse inference against
the prosecution by holding that if the witness would have been
examined It would not have supported the prosecution case.           F
On the other hand if already overwhelming evidence is available
and examination of other witnesses would only be a repetition
orduplication of the evidence already adduced, non-
examination of such other witnesses may not be material. In
such a case the court ought to scrutinise the worth of the           G
evidence adduced. The Court should pose the question
whether in the facts and circumstances of the case, it was
necessary to examine such other witness, and if so, whether
2.   (2001) 6 sec 11.
3.   c2001) 6 sec 145.                                               H
    1120      SUPREME COURT REPORTS                  [2014] 7 S.C.R.

A such witness was available to be examine and yet was being
  withheld from the court. If the answer be positive then only a
  question of drawing an adverse inference may arise. If the
  witnesses already examined are reliable and the testimony
  coming from their mouth is unimpeachable the court can safely
s act upon it, uninfluenced by the factum of non-examination of
  other witnesses.

         11. In Dahari v. State of UP. 4 , while discussing about the
  non-examination of material witness, the Court expressed the
  view that when he was not the only competent witness who
C would have been fully capable of explaining the factual situation
  correctly and the prosecution case stood fully corroborated by
  the medical evidence and the testimony of other reliable
  witnesses, no adverse inference could be drawn against the
  prosecution.
D
         12. From the aforesaid authorities, it is quite vivid that non-
  examination of material witnesses would not always create a
  dent in the prosecution's case. However, as has been held in
  the Case of Gian Chand (supra) the charge of withholding a
E material witness from the Court levelled against the prosecution
  should be examined in the background of facts and
  circumstances of each case so as to find out whether the
  witnesses were available for being examined in the Court and
  were yet withheld by the prosecution. That apart, the court has
F first to assess the trustworthiness of the evidence adduced and
  available on record. If the court finds the evidence adduced
  worthy of being relied on then the testimony has to be accepted
  and acted on though there may be other witnesses available
  who could also have been examined but were not examined.
  Another aspect which is required to be seen whether such
G witness or witnesses are the only competent witnesses who
  could have been fully capable of explaining correctly the factual
  situation. As we have noticed in the case at hand, the daughter
  was the eye witness and the wife was slightly away from the
H   4.   (2012) 10 sec 2ss.
            DENY BORA v. STATE OF ASSAM                         1121
                  [DIPAK MISRA, J.]
  scene of occurrence. They are the most natural and competent           A
  witnesses. They really could have thrown immense light on the
  factual score, but for the reasons best known to the prosecution,
 ,they have not been examined. It is also not the case of the
  prosecution that they had not been cited as their evidence would
   have been duplication or repetition of evidence or there was          B
   an apprehension that they would have not supported the case
  of the prosecution. In the absence of any explanation
 .whatsoever and also regard being had to the presence of wife
 , and daughter of the deceased at the place of occurrence, we
  are of the considered opinion that it has affected the case of         c
   the prosecution. We are obliged to hold so as we find the
- prosecution has otherwise not been able to establish the case
   against the appellant and, therefore, non-examination of the
   material witnesses cannot be regarded as inconsequential. As
   we find, the conviction wholly rests on the sole testimony of PW-     D
   14. It is well settled in law that conviction can be based on the
   testimony of a singular witness. It has been held in Sunil Kumar
   v. State (Govt. of NCT of De/hi} 5 that as a general rule the court
   can and may act on the testimony of a single witness provided
   he is wholly reliable. There is no legal impediment in convicting     E
   a person on the sole testimony of a single witness. That is the
   logic of Section 134 of the Evidence Act, 1872. But, if there
   are doubts about the testimony the courts will insist on
   corroboration. The same principle has been reiterated in
   Namdeo v. State of Maharashtra 6 by stating that it is open to
   a competent court to fully and completely rely on a solitary          F
   witness and record conviction, if the quality of the witness
   makes the testimony acceptable.

       13. In the case at hand the learned trial Judge has placed
 ·reliance on the evidence of PW-14 who has come forward for             G
  recording his statement under Section 161 CrPC almost after
  two years and eight months. The only explanation he has given
  is that he was threatened by the co-accused Dul Bhuyan. It is
  interesting to note after his statement was recorded, the
  accused was arrested after six years and nothing happened              H
    1122     SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A to him during the said period. Thus the plea of threat to keep
  him silent for almost two years and eight months does not
  inspire confidence. Apart from that, as his testimony would show
  the accused-appellant had enquired about the deceased and
  he had accompanied them to the house of the deceased on
B one day, when the deceased Doctor was absent. His
  acquaintance with the accused-appellant was hardly a fortnight
  old, but he along with the appellant and another had gone to ,
  the clinic of the deceased where the other person, pretending
  as a patient, went inside. It is in his evidence that the accused-
C appellant had fired at the deceas-ed as a result of which he fell
  down and died. That the said witness could ~.eP such an
  incident without disclosing to anyone, defies prudence and
  baffles commonsense. His plea of being threatened for such a
  long period to have the sustained silence, is unacceptable and
D we have no hesitation in holding that his testimony is thoroughly
  and wholly unreliable. Therefore, we are of considered view that
  the conviction recorded by the Designated Court on his
  testimony alone without any corroboration is totally
  unsustainable.

E        14. In the result, we allow the appeal and set aside the
    judgment of conviction. If the detention of the accused-appellant
    is not required in connection with any other case, he be set at
    liberty forthwith.

    Rajendra Prasad                                    Appeal allowed.