Holding

The conviction under Section 302 read with Section 34 IPC is upheld because the sole eye‑witness testimony, though uncorroborated, was found wholly reliable and was corroborated by other circumstantial and forensic evidence, satisfying the burden of proof beyond reasonable doubt.

Summary

The appellant Yakub Ismailbhai Patel was convicted under Section 302 read with Section 34 of the IPC for the murder of Nizamuddin. The prosecution relied primarily on the testimony of a single eye‑witness (PW‑2) who identified the accused, supported by a second witness (PW‑1), forensic evidence of a blood‑stained weapon recovered from the accused’s house, and medical evidence of multiple sharp‑edged injuries causing death. The appellant argued that the sole eye‑witness testimony was unreliable, that the lack of an identification parade and the non‑production of other material witnesses should create an adverse inference, and that the ocular evidence conflicted with the medical report. The Supreme Court held that the eye‑witness testimony was wholly reliable, was corroborated by other circumstantial and forensic evidence, that an identification parade was not necessary, and that the prosecution had discharged its burden of proof beyond reasonable doubt. Consequently, the conviction and life sentence were upheld.

Issues considered

The reliability of a sole eye‑witness testimony and the applicability of the rule of caution
Whether the absence of an identification parade defeats the prosecution case
Whether non‑production of material witnesses attracts an adverse inference under Section 114 of the Evidence Act
Whether the discrepancy between ocular and medical evidence undermines the prosecution case
Whether the cumulative injuries proved death caused by the accused
Whether conviction under Section 302 read with Section 34 IPC is sustainable

Legislation cited

Indian Evidence Act, 1872s. 114, s. 23, s. 3
Indian Penal Code, 1860s. 302, s. 34

Subjects

murdercommon intentioneye‑witness testimonyrule of cautionidentification paradenon‑production of witnessesmedical evidenceIPC 302IPC 34Evidence Act 1872

Judgment

A YAKUB ISMAILBHAI PATEL
v.
ST ATE OF GUJARAT

AUGUST 31, 2004

B [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]

Penal Code, 1860-Section 302 read with section 34-Prosecution
case that accused persons inflicted injuries on the vital part of deceased
which resulted in his death-Conviction and sentence by trial court on
C basis of evidence-High Court upheld the same-Justification of-Held :
Prosecution case Proved beyond reasonable doubt-Evidence of sole eye-
witness wholly reliable and stands corroborated by other circumstances
and evidence of other prosecution witness throwing light on the conduct
of accused on the day of incident and also blood stained weapon ofoffence
D recovered at the instance of accused-Furthermore, cumulative effect of
injuries found on the dead body sufficient in ordinary course of nature to
cause death and the injury found on the vital part of the body alone could
have caused death-Also non-production of material witnesses and even
the discrepancies pointed out not affecting the prosecution case-Hence,
conviction and sentence imposed by courts below justified-Evidence Act,
E 1872-Sections 3 and 114, illustration (g).
Evidence Act, 1872-Section 23.

Witness-Prosecution witness-Application for examination of, as
F defence witness-Admissibility of-Held: Once the witness is examined as
a prosecution witness, he cannot be allowed to perjure himself by resiling
fi"om the testimony given in Court.

Solitary witness-Testimony of-Test for reliability-Explained.

G According to the prosecution, appellant-accused No. 1 and accused
no 2 along with other person attacked N with kukari and inflicted
injuries on the neck of N which resulted in his death. Investigations
were carried out. Accused were arrested and weapons were recovered
at their instance. Prosecution witnesses were examined. PW-1, friend
H of N deposed that the day befor~ the incident there was a dispute
978
Y.I. PATEL v. STATE 979

between accsued No. I and N in respect of railway quarter and on the A
day of the incident while he was approaching the railway tracks, he
saw accused No. I and 2 along with others running and accused No.
I and 2 had kukari in their hands. He went towards the fueJ rooni of
the diesel shed and saw dead body of N lying in a pool of blood near
tlte railway track and also saw injuries on the throat and on the face B
of N. He also saw PW-2 standing near the body of the deceased.
Thereafter, PW-I and PW-2 went to the Police Station to lodge
complaint. 00'·

It is the case of PW-2 that he accompanied N to his office to drop C
sick note because N was sick and did not sign the muster roll. PW-2
also deposed that while he was present in the railway office, accused
No. I and 2 along with another person inflicted injuries with sharp
dangerous weapons on the neck of N and on witnessing this ghastly
attack, PW-2 ran away from the spot out of fear and came back after
some time and saw body at a distance of 200 ft. from office and did D
not see any blood, on his way to office and PW-1 was standing there.
PW-2. also deposed that there were four other railway employees who
were present at the scene of offence. Out of the four eye witnesses,
prosecution called upon only two eye witnesses for deposition. Doctor
who conducted the autopsy deposed that the victim had sustained E
multiple injuries which were caused by sharp edged deep penetrating
weapons. Trial court convicted and sentenced the appellant along with
other co-accused under section 302 read with section 34 IPC. High
Court upheld the order. Hence, the present appeal,

Appellant-accused No. I contended that the prosecution has failed
F
to prove the case beyond reasonable doubt and, as such the conviction
should be set aside; that the courts below have based the conviction
of the appellant on sole ocular testimony of PW-2 and as such no
reliance can be placed on the statement of PW-1; that the statements
of PW-I and PW-2, even though establish their irrespective presence G
near the railway tracks are, in fact, contradictory as regards who was
there first at the railway tracks near the body; that the statement of
PW2, sole eye-witness fails to meet the test of 'entire reliability; that
the testimony of PW-2 to the effect that there were other employees
present at the time of the occurrence is belied by the evidence of two H
980 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A of the employees, who have deposed otherwise and, therefore, the
evidence of the other two witnesses far from corroborating the sole eye~
witness account in fact belies it and sole statement of PW-2 cannot be
made basis for convicting the accused; that no test identificatio111
parade was conducted for accused No. 1; that as per the ocular
B evidence the weapon of offence was alleged to be kukari which is :a
blunt weapon whereas the medical evidence shows that there were as
many as 24 wounds caused by sharp edged weapons, and in view of
the discrepancy reliance should not have been placed on the ocular
evidence; that the High Court on noting the discrepancy that the
C muster roll was signed by the deceased, should not have continued to
place reliance on the statement of PW-2; that the investigating officer
deposed that the scene of the offence has been stated to be between two
railway tracks whereas PW-2 deposed that deceased was attacked i1m
the diesel shed 200 metres away; that no investigation was done of how
the body came to be found 200 meters away; that the non-productio1m
D of material witnesses leads to an adverse inference under Section 1141,
illustration (g) of the Evidence Act; and that the accused having spen.t
over seven years in jail and if this Court allows the present appeal, iit
would only be trite to allow the appeal qua accused Nos. 2 and 3 who
were unable to approach this Court.
E
Respondent-State contended that the statement of PW-1 supports
the case in identifying the accused persons and established the presence
of PW-2 at the scene of the offence; and that both PW-1 and PW-2
were known to the deceased as well as the appellant-accused and the
F testimony of both these witnesses has been relied upon by trial court
and High Court to base the conviction of the appellant.

Dismissing the appeal, the Court

HELD : 1.1. The courts below rightly convicted the appellan1t
G under section 302 read with section 34 IPC and sentenced him to lite
imprisonment. [984-E]

1.2. Appellant has failed to establish his case of innocence. On
the contrary, the prosecution has proved its case beyond any
H reasonable doubt. The evidence of witness and the evidence on record
Y.I. PATEL v. STATE 981
'1
sufficiently and conviningly upholds the narrative of the guilt of the A
appellant. Certain discrepancies pointed out by the appellant are
trivial in nature and would not affect the case of conviction imposed
on the appellant..

1.3. PW-2 even though not claiming to have seen the entire attack B
but categorically deposed about having seen the initial attack by the
appellant and co-accused with sharp edged weapons on a vital organ
of the deceased, namely, the neck. The deposition of PW-2 is reliable
and that there is no reason to disbelieve him. The deposition that the
assault was directed at the neck of the deceased proved the intention
of the accused to cause the death of the deceased. The testimony of PW- C
2 proves and corroborates the presence of the complainant PW-1 at
the spot and vice-versa. PW-2 cannot be branded as a related or
interested witness because he is merely a friend of the deceased. There
is nothing significant to infer that there was enmity between himself
and accused persons. The testimony of PW-2 is also sufficient by itself D
to prove the case against the appellant and that the credibility of this
witness has not been impaired in the cross-examination by the appellant.
This witness has stuck to his police statement and the subsequent
examination-in-chiefin Court where he identified the appellant-accused
as well as the co-accused as the assailants of the deceased. The conduct E
of PW-2 appears to be consistent and natural in accompanying the
deceased to his office at loco shed on the date of the incident. His act
of running away to save his own life and not going forward to help the
deceased at the time of the incident is a most probable and natural
human conduct which most men faced in such situation would resort F
to. It is not and cannot be a circumstance or a ground to disbelieve
his testimony particularly when the rest of his testimony is tested in
cross-examination. [995-H; 996-A-F)

1.4. The testimony of PW-1 corroborates the presence of the eye-
witness PW-2 at the spot. The doubts sought to be raised by the G
appellant in receipt of the sick note of the deceased and the subsequent
staying back at the office are rendered irrelevant and insignificant.
PW-I has deposed that he has identified the appellants and the co-
accused in the Court. Thus, it is clear from the testimony of PW-I as.
a prosecution witness that although he is not an eye-witness of the H
982 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A incident, yet he throws light on the conduct of the accused on the day
of the incident around the time of incident. His testimony together with
the testimony of Investigating Officer corroborates the presence of
PW-2 at the place of the incident. [996-G-H; 997-B-D]

B 1.5. In order to pass conviction upon the testimony of a solitary
eye-witness such a testimony must be of a nature which inspires the
confidence of the Court. While looking into such evidence this Cour1t
has always advocated the Rule of Caution and such corroboration
from other evidence and even in the absence of corroboration ilr
C testimony of such single eye-witness inspires confidence then convictioni
can be based solely upon it. In the instance case, the testimony of the
solitary eye-witness stands corroborated by other circumstances and
evidences and more particularly PW-I whose testimony has been relied
upon by both the Courts. (999-B-D; 997-A]

D Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, (1973]
2 SCC 793; Joseph v. State of Kera/a, (2003) 1 SCC 465; Suresh
Chaudhary v. State ofBihar, [2003) 4 SCC 128; ShahauddinAbdul Kahlik
Shaikh v. State of Gujarat, [1995] Supp. 2 SCC 441; Thevar Etc. v. The
State ofMadras Etc., AIR (1957) SC 614 and Mohamed Sugai Esa v. The
E King, AIR (1946) PC 3, referred to.
1.6. The Investigating Officer has stated in his testimony that the
test identification parade was not necessary in the instant case. This
apart, both the witnesses PW-1 and 2 have categorically stated in their
F deposition that they knew the appellant from the past. (997-F-G]

1.7. A weapon of offence has been recovered at the instance of
the appellant from his own house. The testimony of the panch witness
PW-6 in respect of the recovery and the appellant's identity therein
has remained unshaken during extensive cross-examination and blood
G stains were also seen on the said weapon. (997-H; 998-A]

1.8. The presence of blood at the spot where PW-2 states the
attack had taken place establishes the correctness of the version of PW-
2. In such an event, the mere failure to explain the presence of the dead
H body at an adjoining place does not disprove or contradict the
Y.I. PATEL v. STATE 983
prosecution case. (998-E-F) A
1.9. Since two of the witnesses to the prosecution case present at
the spot turned hostile, it cannot be said that the prosecution must
suffer adverse inference for any further non-production of witnesses.
It is not the case of the appellant that there were certain witnesses who B
were cited as witness in the charge-sheet but later on dropped as
witnesses by the prosecution during the trial. A~so one of the witnesses
before the trial court bad been gr~nted police protection by the trial
court on the ground of threats from the accused persons. (999-D-F)

Habeeb Mohammad v. The State of Hyderabad, [1954) SCR 475; C
Stephen Senivaratne v. The King, AIR (1936) PC 289 and State of UP.
and Anr. v. Jaggo alias Jagdish and Ors., [1971) 2 SCC 42, referred to.

1.10. The deposition of the doctor who conducted the autopsy that
the victim had sustained multiple injuries which were caused by sharp D '
edged deep penetrating weapons and. owing to the same there was
haemorrhage which ultimately resulted in his death. The cumulative
effect of injuries found on the dead body were sufficient in ordinary
course of nature to cause death and the injury found on the neck, a
vital part of the body ~lorie could have caused death. High Court also E
specifically held that th¢ ocular version in this case is not at loggerheads
with the medical evidence. [1000-C-E; 998-D)

1.11. Once the witness is examined as a prosecution witness, he
cannot be allowed to perjure himself by resiling from the testimony F
given in Court on oath. High Court and also the Sessions Court rightly
rejected the affidavit filed by PW-1 wherein he had sworn to the fact
that whatever he had deposed before Courts as PW-I was not true and
it was so done at the instance of Police. It is pertinent to note that
during the intervening period between giving of evidence as PW-1 and
filfog of affidavit in Court later he was in jail in a narcotic case and G
that the accused persons were also fellow inmates there. (997-E-G)

1.12. In the instance case, the guilt of the appellant has been
convincingly established. Therefofe, it cannot be said that the accused
having spent over seven years in jail and if this Court allows the present H
984 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A appeal, it would only be trite to allow the appeal qua accused Nos. 2 and
3 who were unable to approach this Court. [993-H; 994-A)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
62 of 2004.
B
From the Judgment and Order dated 29.8.2003 of the Gujarat High
Court in Crl. A. No. 327 of 1998.

Huzefa Ahmadi, Nakul Dewan and Ejaz Maqbool, for the Appellant.

c Madhukar, Ms. Sadhana Sandhu and Ms. Hemantika Wahi for the
Respondent.

The Judgment of the Court was delivered by

D DR. AR. LAKSHMANAN, J. : The present criminal appeal arises
out of the judgment and order dated 29 .08.2003 passed by the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 327of1998 wherein the '
High Court confirmed the conviction of the Appellant along with two other
co-accused for offence under Section 302 read with Section 34 of the l.P.C.
E and sentenced them to imprisonment for life.
The brief facts of the present case are as under:

On 25.08.1995 at about 13.15 hrs. the Ahmedabad Railway Police
F received a Vardhi from one Abdulmajid that a knife blow has been inflicted
on Nazim at Kankaria Loco Shed. On the strength of the said entry, Police
Sub-Inspector went to the scene of occurrence, prepared inquest report of
dead body and also drew panchanama of scene of occurrence. In the
meantime, at about 17.40 hrs. complaint was given by Munna@ Gheti
Mohamadshafi Shaikh. In the said complaint, it is stated that he happens
G to be a friend of Nizarnuddin lsmailbhai (deceased) for the last 15 years
and the said Nizarnuddin has been allotted one quarter in B scale colony
of Kankaria railway colony, but he was not residing there. He gave the
quarter to his relative. Nearby the quarter ofNizamuddin, Yakubbhai Patel
(accused No. I) was residing. The Complainant also used to visit the said
H quarter along with Nizamuddin. On 24.08.1995, there was altercation and
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 985

quarrel in between accused No. l and deceased in respect to the sa!d quarter, A
as he wanted to get it evicted. On 25.08.1995, the day of the incident, while
the said Munna @ Gheti was returning from the house of his friend,
somewhere near K~aria railway colony, he saw accused No. 1 and
accused No. 2 along with other person. ' They were running. There was
Jamaiya (kukari) in the hands of accused Nos. I and 2. Therefore; he went B
towards the fuel room of diesel shed, where he saw the dead body of
Nizamuddin in a pool of blood lying near the railway track. One Raju was
also there. In the inquiry, he could gather from the said Raju that accused
No. I and 2 along with one another person had inflicted injuries on the
person Nizamuddin and thus has resulted into death. The said Munna had .
also seen the injury on the throat and on the face of Nizamuddin. C
During investigation, police recorded the statements of witnesses,
panchanamas were drawn in respect of the clothes of the deceased,
discovery of weapons at the instance of the accused persons and post
mortem note of the deceased was collected. Incriminating articles were D
also collected for having scientific examination. Police arrested accused
, Nos. I and 2 and Tapan@Tondi Shash~har accused No.3 on 19.09.1995.
After completion of investigation, accused c2me to be charge-sheeted on
16.12.1995 before the Metropolitan Magistrate, Court No.5, Ahmedabad.
The said charge-sheet. was for the alleged offences punishable under
Sections 302 and 304 of the I.P.C. and Section 135 of the Bombay Police E
Act. It was numbered as Criminal Case No. 2833 of 1995. The
-Metropolitan Magistrate, in tum, committed the said Criminal Case No.
2833 of I995 of his file to the Court of Sessions Ahmedabad on Ol.02.1996
and it was numbered as Sessions Case No. IOI of 1996. Charge was
framed against all the three accused. They pleaded not guilty to the charges F
and claimed to be tried.

The prosecution, in order to prove the charge against the accused,
examined I 4 witnesses and also relied on documentary evidence which
consisted of FIR, Panchanama of place of incident, recovery of weapons G
panchanama from the present appellants. The appellants have also
examined D. W. I Munna @ Gheti Mohammadsami Shaikh and produced
documentary evidence.

After the prosecution case was over, the appellants were questioned
with regard to the evidence led by the prosecution against them and their H
986 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. ......

A statements were recorded under Section 313 of the Code. In their further
statements, all the appellants have denied the alleged part played by them .
in the commission of the offence. However, they gave application to
examine the Complainant Munna @ Gheti Mohammadshafi Shaikh as
defence witness.
B The Additional Session8-"'Judge, after appreciating the oral and
documentary evidence and arguments advanced by the respective counsel
for the prosecution as well as the defence, held that on the day of incident
i.e. 25.08.1995 all the appellants had common intention to kill the
deceased. It was further held that the deceased Nizamuddin died a
C homicidal death. In the light of this, the Additional Sessions Judge
convicted all the appellants and sentenced them, as stated above, which has
given rise to the appeal before the High Court. The High Court, after
considering the entire evidence and the facts and circumstances of the case,
found themselves in complete agreement with the reasoning and findings
D of the Sessions Judge and dismissed the appeal and gave liberty to the trial
Court to proceed against the witness Munna @ Gheti under Section 344
of the Cr.P.C. Aggrieved by the order of the High Court, the appellant
has preferred the special leave petition before this Court. Leave was
granted on 12.01.2004.

E We heard Mr. Huzefa Ahmadi, learned counsel appearing for the
Appellant ably assisted by Mr. Nakul Dewan and Mr. Ejaz Maqbool and
Mr. Madhukar, learned counsel for the Respondent ably assisted by Ms.
Sadhana Sandhu and Ms. Hemantika Wahi. We have been taken through
the pleadings, the evidence let in and the documents produced by learned
F counsel appearing on either side.

Mr. Huzefa Ahmadi, learned counsel appearing for the appellant,
made the following submissions:

a) the Courts below have relied upon the sole testimony of
G PW-2 and, therefore, no reliance can be placed on the
statement of PW-I;

b) the Courts have disbelieved the statement of PW-I and
have based the conviction solely on the ocular testimony of
H PW-2;
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 987
,.
c) No other eye-witness supports the (:3.Se; A
• r"' •

d) Jn any event, it is evident.thaMhe statements of PW-I• and
PW-2, far from establishing their respective presence near
the railway tracks are, in fact, contradictory. In order to
establish the ~bove coptention, learned counsel for the B
appellant drew our attention·to the following extract from !)le
judgment of the High Court:

,'.'.Thereafter, he saw the body of deceased Nizamuddi~lying
in a pool of blood. He saw Raju standing near the body for
Nizamuddin. Raju tcild the witness that Yakub -Patel and C
other accused persons gave blow to Nizamuddin and ran
_ away. Subsequently, Rajuand witness went to police station
to lodge complaint which is given mark I 0/1.

The witness came after some time and he saw the body of D
Nizamuddin at a distance of 200 ft. from the office. H.e did
not see any blood on way to his office. Munna @ Geti was
standing near deceased Nizamuddin before witness went
there."
E
According to learned counsel for the appellant, the following is
evident from the above extract:

• There is clear dichotomy between the statements of PW-I
and PW-2 as regards who was there first at the railway tracks F
.. near the body;

• If, indeed, the sole eye-witness PW-2 is to be believed, then
it is PW-I who reached the railway tracks first and not vice
versa. Therefore, PW-1 's statement that he had seen three
persons running away while he was approaching the railway G
tracks and that he was told by PW-2 that said persons killed
the deceased is wholly unbelievable. •

t Learned counsel for the appeflant further submitted that no T .I.
Parade was conducted for accused No. I. Learned counsel also pointed H
988 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A out the discrepancy between medical and ocular evidence. It was submitted
· that while the witnesses deposed that the accused had used jamiyas/kukaris
which are blunt edged weapons, the medical evidence and the wounds
show that sharp edged weajfuns were used. Learned counsel drew our
attention to pages 17, 19, 22 and 23 of Volume-I of the paper-book.
B
It was further submitted that the weapon of offence was alleged to
be kukari/jamiya which is a blunt weapon whereas the medical evidence
shows that there were as many as 24 wounds caused by the sharp edged
weapons. It was, therefore, submitted that the High Court in view of the
C discrepancy between the medical and ocular evidence ought not to have
relied upon the ocular evidence to convict the accused.

The learned counsel brought to our notice the following discrepancies
in the case of the prosecution:

D STATEMENT OF PW-2:
'
The case of PW-2 is that on the request of the deceased, he
accompanied the deceased to his office in order to enable. the deceased to
file a sick note. However, PW-2 had stated in his deposition that the
E deceased had not signed the muster roll, which the High Court has recorded
as under:

"When they went to diesel shed on scooter, Nizamuddin did
not sign the muster roll".
F
The statement of PW-2 is, however, belied by the fact that the muster
roll was signed by the deceased. The High Court has recorded this as
under:

G "As per muster roll Exh. 66 it is clear that on 25.08.1995
the deceased was present on his duty."

He would submit that in view of the High Court noting the
discrepancy, it ought not to have continued to place reliance on the
H statement of PW-2.
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 989
It was further submitted that PW-2 is not an employee of the railway A
and otherwise not a person who would ordinarily be at the scene of the
offence. It was his submission that because the deceased was sick, at 7.30
AM he took the deceased to drop a sick note. The case of the prosecution
is that both the persons were at one office for two and a half hours and
then in another office for another two and a half hours and were, therefore, B
together from 12.30 AM to 1.00 PM when the alleged incident took place.

According to learned counsel for the appellant, it is inconceivable to
believe that:

I. A person who is sick and needs to be taken to office by a C
friend in order to drop a sick note, will continue to remain
present in office;

11. Even if the deceased had, in fact, decided to stay on, it is
unbelievable that his friend would continue to remain with D
him and not attend to his daily work.

m. Lastly, it is not as if the case of the prosecution is that the
deceased had changed his mind about the sick note, or that
he was feeling better on reaching his office. PW-2 has stated E
that the deceased did not sign the muster roll, a fact which
has not proved to be untrue.

SCENE OF THE OFFENCE:

In the deposition of PW-12, Police Sub-Inspector, the scene of the
F
offence has been stated to be between two railway tracks. According to
learned counsel for the appellant, this is contrary to the deposition of
PW-2, who states that the deceased was attacked in the diesel shed 200
meters away. Learned counsel invited our attention to appreciate the
deposition of PW-12, the Investigating Officer. G

He has admitted that Fuel Room, gate of Fuel Room and the tracks
of railway are distinct places. He volunteers that though, it may be called
distinct, but it is nearby. He has admitted that no blood sample was
obtained from the Fuel Room. He has admitted that he has not shown date H
990 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A and time of preparation of report exh. 48 when he reached at Loco Diesel
Shed, dead body was not there. Dog squad was available however no trace
was found out.

According to the learned counsel . for the appellant, there is no
B explanation of how the body came to be found 200 meters away. No
investigation was done on that behalf and even the dog squad could not
determine the trace. Therefore, it is submitted that the prosecution version
is not believable.

NO OTHER EYE-WITNESS SUPPORTS THE CASE: w

c Learned counsel for the appellant submitted that PW-2 in his
deposition has stated that there were four other railway employees who
were present at the scene of offence and, therefore, their deposition
becomes necessary for unfolding the narrative.

D In the present case, out of the four other alleged eye-witnesses; the
prosecution only called upon PW-3 and PW-9 to depose as eye-witnesses
and even these two eye-witnesses did not support· the case of the
prosecution. Thus it is submitted that the failure of the prosecution to call
all material witnesses leads to an adverse inference against the prosecution
E under Section 114: illustration (g) of the Indian Evidence Act.

THE STATEMENT OF P.W.l IS UNRELIABLE:

The learned counsel for the Respondent submitted that the statement
of PW- I supports the case in identifying the accused persons. It was also
F his submission that the s<atement of PW-I established the presence of
PW-2 at the scene of the offence. According to learned counsel for the
appellant, the said submission is devoid of merits for the following reasons:

a) the Courts below have relied upon the sole testimony of PW-
G 2 and, therefore, no reliance can be placed on the statement
of PW-I at this stage;

b) the Courts have disbelieved the statement of PW- I and
have based the conviction solely on ·the ocular testimony of
PW-2;
H
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 991
. - ·..i
c) In any event, it is evident that the statements of PW-I and A
PW-2, far from establishing their respective presence near
the railway tracks are, in fact, contradictory:

The learned counsel for the appellant made two legal propositions
for consideration of this Court:
B
(1) THE TESTIMONY OF A SINGLE EYE-WITNESS MUST BE ENTIRELY
RELIABLE FOR A CONVICTION:

According to Mr. Huzefa Ahmadi, the test for relying on the
testimony of a sole eye-witness is based on the rule of caution, expounded C
by this Court in a catena ofjudgments. He placed reliance on the following
judgments:

1) Joseph v. State ofKera/a, [2003] I SCC 465 which prescribes
that the evidence of other witnesses must corroborate the single eye- D
witness.

"When there is a sole witness to the incident his evidence has to
be accepted with an amount of caution and after testing it on the
touchstone of the evidence tendered by other witnesses or evidence
as recorded. Section 134 of the Indian Evidence Act provides that E
no particular number of witnesses shall in any case be required
for the proof of any fact and, therefore, it is permissible for a court
to record and sustain a conviction on the evidence of a solitary
eyewitness. But, at the same time, such a course can be adopted
only if the evidence tendered by such witness is cogent, reliable F
and in tune with probabilities and inspires implicit confidence. By
this standard, when the prosecution case rests mainly on the sole
testimony of an eyewitness, it should be wholly reliable. Even
though such witness is an injured witness and his presence may
not be seriously doubted, when his evidence is in conflict with G
other evidence, the view taken by the trial court that it would be
unsafe to convict the accused on his sole testimony cannot be
stated to be unreasonable. Particularly, when the trial court had
given cogent reasons to acquit the accused, the High Court ought
not to have interfered with the same merely because another
opinion is possible and not that the finding concluded by the trial H
992 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A court was impossible. The High Court did not follow the aforesaid
standard but went on to analyse evidence as ifthe material before
them was given for the first time and not in appeal.
(Paras 12 & 13)

B 2) Suresh Chaudhary v. State of Bihar, [2003) 4 sec 128.

In the above case, this Court while setting aside the sentence of
conviction of two Courts below advocated the Rule of Caution.

3) The Rule of Caution has also been advocated by this Court in
C Shahbuddin Abdul Kahlik Shaikh v. State of Gujarat, [ 1995) Supp 2 SCC
441.

4) The aforesaid judgments are based on the judgment of this Court
in Vadivelu Thevar Etc. v. The State of Madras Etc., AIR (1957) SC 614
D wherein this Court has divided the appreciation of evidence into three
categories, namely: (1) wholly reliable; (2) wholly unreliable; and (3)
Neither wholly reliable nor wholly unreliable and thereafter stated that 'it
becomes the duty of the court to convict, ifit is satisfied that the testimony '
of a single witness is entirely reliable'.

E 5) The above view emerges from the view of the Privy Council in
Mohamed Sugai Esa v. The King, AIR (1946) PC 3.

"In England where provision has been made for the reception of
unsworn evidence froin a child it has always been provided that
F the evidence must be corroborated in some material particular
implicating the accused. But in the Indian Act there is no such
provision and the evidence is made admissible whether corroborated
or not. Once there is admissible evidence a Cou['.t can act upon
'·
it; corroboration, unless required by statute, goes only to the
weight and value of the evidence. It is a sound rule in practice
G not to act on the uncon:oborated evidence of a child, whether
sworn or unsworn, but this is a rule of prudence and not of law."

Mr. Ahmadi, in view of the above judgments and of the facts stated
above, submitted that the statement of PW-2, sole eye-witness fails to meet
H the test of 'entire reliability' and, therefore, cannot be the basis for
Y.l. PATEL v. STATE [LAKSHMANAN, J.] 993

convicting the accused and that the testimony of PW-2 to the effect that A
there were other employees present at the time of the occurrence is belied
by the evidence of two of the said employees, who have deposed otherwise
and, therefore, the evidence of the other two witnesses far from corroborating
the sole eye-witness account in fact belies it.

B
The learned counsel for the appellant then concentrated on the seco_nd
legal proposition, namely, non-production of material witnesses leads to
an adverse inference against the prosecution:

It was contended that it is the duty of the prosecution to produce all C
material witnesses and failure thereof leads to an adverse inference under
Section 114, illustration (g) of the Indian Evidence Act, 1857.

This Court in Habeeb Mohammad v. The State of Hyderabad, [1954]
SCR 475 at 490 extracting from the judgment of the Privy Council in
Stephen Senivaratne v. The King, AIR (1936) PC 289 stated as under: D

"Witnesses essential to the unfolding of the narrative on which the
prosecution is based, must, of course, be called by the prosecution,
whether in the result the effect of their testimony is for or against
the case for the prosecution." E
The above two judgments have been relied upon by this Court in the
case of State of UP. and Anr. v. Jaggo Alias Jagdish and Ors., [1971] 2
sec 42.
It was submitted that while the prosecution is not necessarily required
F
to call upon each and every witness, it is bound to call all witnesses who
are material to the unfolding of the narrative and failure to do so, leads
to an adverse inference. In the present case, the other two eye-witnesses
did not support the prosecution and it can thus be inferred that the other
eye-witnesses would also not support the version of the prosecution and G
in these circumstances, the Courts below have erred in relying upon the
sole statement of PW-2 for convicting the accused.

Concluding his argument, Mr. Huzefa Ahmadi, submitted that the
accused have spent over seven years in jail and if this Court is to allow H
994 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A the present appeal, it would only be trite to allow the appeal qua accused ._
Nos. 2 and 3 who were unable to approach this Court. For this, the learned
counsel for the appellant, relied on the judgment of this Court in Suresh
Chaudhary 's case (supra) wherein relying on precedents, the Court stated
as under:

B
"This Court in a catena of cases has held where on the evaluation
of a case this Court reaches the conclusion that no conviction of
any accused is possible, the benefit of doubt must be extended to
the co-accused similarly situated though he has not challenged the
order of conviction by way of an appeal. [See Bijoy Singh v. State
c of Bihar, (2002] 9 SCC 147]. This Court while rendering the
above judgment has placed reliance on some other judgments of
this Court in Raja Ram v. State ofMP., (1994] 2 SCC 568, Dandu
Lakshmi Reddy v. State of A.P., (1999] 7 SCC 69 and Anil Rai
v. State of Bihar, [2001] 7 SCC 318 wherein this Court had taken
D a similar view. Following the above dictum of this Court in the
judgments noticed by us hereinabove, we are of the opinion since
we have come to the conclusion that no conviction of any accused
is possible based on the prosecution case as presented, it becomes
our duty to extend the benefit of acquittal in these appeals
E also to a non-appealing accused, therefore, Sona @ Sonwa
Chaudhary who is the first accused before the Sessions Court in
Sessions Trial No. 417 of 1993 and who was the first appellant
before the High Court in Cr!. A. No. 88 of 1995 will also be
acquitted ofall the charges of which he is found guilty by the two
courts below".
F
Concluding his argument, learned counsel submitted that the
prosecution has failed to prove the case beyond reasonable doubt and,
therefore, the accused appellant ought to be acquitted.

G Learned counsel for the State of Gujarat Mr. Madhukar while
justifying the judgments of the Courts below submitted that the body of
the evidence produced by the prosecution against the appellant consisted
of the following:-

H I. Testimony of eyewitness to the incident (PW-2);
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 995

2. Motive; A
3, Evidehce relating to Recovery of weapons at the instance of
the accused;

4. Medical evidence;
B
5. Atsence of accused from railway duty and their arrest only
after 24 days of incident;

After narrating the case of the prosecution and the evidem;e and
documents produced, he submitted that it has come in the evidence of PW- C
I and PW-2 that both the witnesses were known to the deceased as well
as the appellant accused and the testimony of both these witnesses has been
relied upon by the trial Court and the High Court to base the conviction
of the appellant.
D
He invited our attention to paras 20, 21 and 29 of the High Court's
order and paras 50-53 of the trial Court's order of PW-2 Akbar Khan@
Raju. This witness is an eye-witness to the incident. The two other eye-
witnesses who were examined by the prosecution turned hostile during the
\trial and thus this witness was rendered in the position of being the sole E
eye-witness. We have perused the evidence of PW-2. It has given in his
testimony that on the fateful day of the incident, he escorted the deceased
to the railway office in order to enable him to place a sick note in the
railway office. PW-2 has specifically stated in that while he has present
in the railway office, the appellant along with the co-accused threatened F
and attacked the deceased with sharp dangerous weapons on his neck. It
is the version of PW-2 that on witnessing this ghastly attack, he ran away
from the spot out of fear. He came back from the hiding after sometime
and saw the dead body of the deceased while PW-2 was near the body.
He has stated to have met PW- I .. In fact, PW- I who is also the Complainant
was accompanied by PW-2 to the Police Station for lodging of the G
complaint.

The testimony of this witness, in our opinion, proves and corroborates
the presence of the Complainant PW-I and vice-versa. PW-2 does not
• claim to have seen the entire attack but has categorically deposed about H
996 SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A having seen the initial attack by the appellant and co-accused with sharp
edged weapons on a vital organ of the deceased, namely, the neck.

The testimony of PW-2, in our view, is wholly believable and worthy
of inspiring confidence but is also sufficient by itself to prove the case
B against the appellant and that the credibility of this witness has not been
impaired in the cross-examination by the appellant. This witness has stuck
to his police statement and the subsequent examination in chief in Court
where he identified the appellant accused as well as the co-accused as the
assailants of the deceased. This deposition, in our view, proved the
intention of the accused to cause the death of the deceased inasmuch as
c he deposes that the assault was directed at the neck of the deceased. It
is also not the case of the appellant that this witness was inimical to the
appellant or that there was a reason for PW-2 to implicate the appellants
falsely. The factum of his friendship with the deceased does not reduce
PW-2 to the iJOsition of being an interested witness.
D
The learned counsel for the appellant has argued before this Court
as well as the Courts below that the conduct of this witness in not saving
the life of his friend, the deceased, renders him an improbable witness. In
our view, the act of this witness in running away to save his own life and
E not going forward to help the deceased at the time of the incident is a most
probable and natural human conduct which most men faced in such
situation would resort to. In our view, the conduct of PW-2 in not
having the courage to stop three persons armed with deadly sharp edged
weapons is not and cannot be a circumstance or a ground to disbelieve his
F testimony particularly when the rest of his testimony is tested with cross-
examination.

Next we analyse the evidence of PW-I Munna @ Gheti. Our
attention was drawn to the various paras in the trial Court's order and the
High Court's order of this witness. PW-l's evidence was relied upon by
G the trial Court and also by the High Court. The most important feature
of the testimony of this witness is that he corroborates the presence of the
eye-witness PW-2 at the spot. It is submitted that in face of the specific
deposition of this witness, the PW-2 was present at the spot the doubts
sought to be raised by the appellant in receipt of the sick not<; of the
H deceased and the subsequent staying back at the office are rendered
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 997

irrelevant and insignificant. PW-I has deposed that he was known to the A
deceased and the appellant and that there were altercation on 24.08.1995
between the appellant and the deceased in respect of the railway quarter.
It is the version of this witness that on the day of the incident he saw the
present appellant running away and also saw the deceased in the pool of
blood. Raju was present there. PW-I has deposed as prosecution witness B
that while he was returning from railway colony after meeting his friend
at about 12.00 noon accused Nos. I and 2 and one another were being seen
by him, they were running away. PW-I has identified the appellants and
the co-accused in the Court. Thus, it is clear from the testimony of
Munnabhai @ Geti as a prosecution witness that although he is not an eye-
witness of the incident, yet he throws light on the conduct of the accused C
on the day of the incident around the time of incident. His testimony
together with the testimony of Investigating Officer corroborates the
presence of PW-2 at the place of the incident.

Significantly this witness, later on filed an affidavit, wherein he had D
sworn to the fact that whatever he had deposed before Court as PW-I was
not true and it was so done at the instance of Police.

The avennents in the affidavit are rightly rejected by the High Court
and also the Sessions Court. Once the witness is examined as a prosecution E
witness, he cannot be allowed to perjure himself by resiling from the
testimony given in Court on oath. It is pertinent to note that during the
intervening period between giving of evidence as PW-I and filing of
affidavit in Court later he was in jail in a narcotic case and that the accused
persons were also fellow inmates there.
F
It was argued by the learned counsel for the appellant that no
identification parade was conducted for the accused. The Investigating
Officer has stated in his testimony that the test identification parade was
not necessary in the instant case. This apart, both the witnesses PW-I and
2 have categorically stated in their deposition that they knew the appellant G
from the past.

RECOVERY:

It is seen from the records that a weapon of offence has been
recovered at the instance of the appellant from his own house. The H
998 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A testimony of the panch witness PW-6 in respect of the recovery and the
appellant's identity therein has remained unshaken during extensive cross-
examination and blood stains were also seen on the said weapon recovered
at the instance of the accused.

B MEDICAL EVIDENCE:
We shall now see the medical evidence. There were as many as 24
injuries on the dead body of the deceased. The High Court says that all
injuries were ante mortem in nature and death was caused in this case due
C to haemorrhage and shock as a result of multiple injuries sustained and that
the injuries were caused by sharp edged and tipped penetrating weapon/
weapons. After referring to the Muddamal articles Kukari and knives, the
doctor has observed that the injury could be caused by mudammal articles
kukari and knives. The High Court also specifically held that the ocular
version in this case is not at the loggerheads with the medical evidence.
D
Certain discrepancies were pointed out by learned counsel for the
appellant at the time of arguments. The learned counsel for the State while
answering the said submission of the coi.;nsel for the appellant submitted
that according to PW-2, the duration of attack which he witnessed before
E he ran away took place at the office and that there is evidence on record
that blood was found at the spot where PW-2 states that he had witnessed
the armed attack upon the deceased. The presence of blood at the spot
where PW-2 states the attack had taken place establishes the correctness
of the version of this witness. In such an event, the mere failure to explain
F the presence of the dead body at an adjoining place does not disprove or
contradict the prosecution case and in our opinion is certainly not fatal to
the prosecution case.

Learned counsel for the State also made certain submissions on law
and, in particular, the testimony of single eye-witness. Learned counsel
G for the State relied upon the legal principles as laid down in Shivaji
Sahabrao Bobade and Anr. v. State of Maharashtra, [1973] 2 SCC 793
(three-Judge Bench) wherein it has been held as follows:

" ..... Even if the case against the accused hangs on the evidence
H of a single eye-witness it may be enough to sustain the conviction
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 999
given sterling testimony of a competent, honest man, although as A
a rule of prudence courts call for corroboration. It is a platitude
to say that witnesses have to be weighed and not counted since
quality matters more than quantity in human affairs ......"

The legal position in respect of the testimony of a solitary eye-witness B
is well settled in a catena of judgments inasmuch as this Court has always
reminded that in order to pass conviction upon it, such a testimony must
be of a nature which inspires the confidence of the r ,;urt. While looking
into such evidence this Court has always advocat' the Rule of Caution
and such corroboration from other evidence amf'.it ven in the absence of
corroboration if testimony of such single eye-witness inspires confidence C
then conviction can be based solely upon it. In the case on hand, the
testimony of the solitary eye-witness stands corroborated by other
circumstances and evidences and more particularly PW- I whose testimony
has been relied upon by both the Courts.
D
Learned counsel for the State next answered the submission of the
learned counsel for the appellant in regard to the non-production of
material witnesses. According to him, the witnesses which were necessary
should unfold the narrative of the incident were cited and examined as
witnesses. Two of the witnesses to the prosecution case present at the spot E
turned hostile. In such a scenario, it cannot be said that the prosecution
must suffer adverse inference for any further non-production. It is not the
case of the appellant that there were certain witnesses who were cited as
witness in the charge-sheet but were later on dropped as witnesses by the
prosecution during the trial. It was also pointed out to us and is pertinent F
to mention that one of the witnesses before the trial Court had been granted
police protection by the trial Court on the ground of threats from the
accused persons,

In our opinion, the appellant has failed to establish his case of
innocence. On the contrary, the prosecution has proved its case beyond G
any reasonable doubt. We are of the opinion that the depositions that was
given on record, namely, Akbar Khan @ Raju can be said to be reliable
and that there is no reason to disbelieve him so far as the ocular aspect
• of the prosecution case is concerned. The witness Akbar Khan cannot be
branded as a related or interested witness because he is merely a friend of H
1000 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A the deceased. There is nothing significant to infer that there was enmity
between himself and accused persons. His conduct appears to be consistent
and natural in accompanying the deceased to his office at loco shed on the
date of the incident thus the testimony of eye-witness Akbar Khan@ Raju
cannot be brushed aside. He is believable and does inspires confidence.

B
Learned counsel for the appellant pointed out certain discrepancies
which, in our opinion are trivial in nature but such discrepancies would
not affect the case of conviction imposed on the appellant. The deposition
of Dr. Patil who conducted the autopsy is worth to mention. There were
C in all 24 external injuries and 3 internal injuries on the head, chest and
abdomen region. According to him, the injuries were caused by sharp
edged deep penetrating weapons the vietim had sustained multiple injuries
and owing to the same there ·was haemorrhage which ultimately resulted
into his death.

D The cumulative effect of injuries found on the dead body were
sufficient in the ordinary course of nature to cause death and the injury
found out on the neck, a vital part of the body alone could have caused
death. The evidence of the witnesses and the evidence on record
sufficiently and convincingly upholds the narrative of the guilt of the
E appellant.

We, therefore, find ourselves in complete agreement with the reasoning
and findings of the learned trial Judge and of the High Court. Therefore,
the present appeal deserves to be dismissed and accordingly it is dismissed.

F Before taking leave of the case, we would like to advert to the
argument of the learned counsel for the appellant on the question of
sentence. He submitted that the accused had spent over seven years in jail.
He relied on the judgment of this Court in Suresh Chaudhary v. State of
Bihar (supra). The above judgment is to the effect that if no conviction
G of any accused is possible, the benefit of doubt must be extended to the
co-accused similarly situated though he has not challenged the order of
conviction by way of an appeal.

In the instant case, we have come to the conclusion that the conviction
H and sentence imposed by the Courts below are correct and, therefore, the
Y.I. PATEL v. STATE [LAKSHMANAN, J.] 1001

acquittal is not possible. We also hold that the prosecution has proved the A
case beyond any reasonable doubt. It is true that an order of sentence
purely falls in the realm of judicial discretion and the prosecuting State is
only duty bound to endeavour that the guilty had tried and convicted in
accordance with law.
B
In the present case, the guilt of the appellant has been convincingly
established. We are, therefore, unable to countenance the submission made
by the learned counsel for the appellant on the submission of sentence.

The appeal fails and is therefore dismissed. The appellant to serve C
the remaining period of sentence.

N.J . Appeal missed.

..