No hard­and­fast rule can be laid down as to how much evidence should be appreciated but what is required is that judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. ;There is no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the evidence of police officials can be outrightly disregarded.


Hon’ble Mr. Justice Ajay Rastogi

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 2100 OF 2008
KRIPAL SINGH ….Appellant(s)
VERSUS
STATE OF RAJASTHAN ….Respondent(s)
J U D G M E N T
Rastogi, J.

  1. This appeal has been filed against the judgment and order
    dated 4th February, 2008 passed by the High Court of Judicature
    of Rajasthan at Jaipur Bench confirming the conviction of the
    appellant for the offence punishable under Section 302 IPC
    passed by the learned trial Court under the impugned judgment
    dated 22nd November, 2002.
  2. The brief facts as per the prosecution case are that on 28th
    July, 2001, at 9.15 p.m. informant Sunil Kumar Goyal(PW­13)
    submitted a written report(Exh. P­1) at Police Station Dug
    1
    wherein it was stated that around 6.30 p.m., he was going along
    with his brother Yashwant and Paras Mal on motor cycle bearing
    no. RJ­20 8M 9309 to their agricultural farm situated at
    village Doodhlai. Yashwant was on the driving seat, Paras
    Mal(PW­1) was in the middle and the informant Sunil Kumar
    Goyal(PW­13) was sitting on the rear seat. While they were
    returning back, the accused Kripal Singh along with Ramlal,
    Arjun Singh and Sultan Singh met them near the house of
    Dhoole Singh. All the four were armed with axe, lathi, dharia,
    sword and pharsa surrounded their motor cycle and exhorted to
    kill Yashwant. Informant Sunil Kumar Goyal(PW­13) and Paras
    Mal(PW­1) got down and distanced themselves but Yashwant
    could not do so and was severely beaten up. All the assailants
    inflicted blows with axe, dharia, sword, pharsa and lathi on the
    person of Yashwant. They attempted to kill even the informant
    Sunil Kumar Goyal(PW­13) and Paras Mal(PW­1) while they were
    running for their life. They were chased by Kripal Singh who
    gave a blow with axe on the left shoulder of Paras Mal(PW­1). On
    the complaint made by Sunil Kumar Goyal(PW­13), the first
    information report(Exh. P2) came to be registered. Autopsy on
    the dead body of deceased Yaswant was conducted. Initially, all
    2
    the four accused persons, namely, Kripal Singh, Ram Lal, Arjun
    Singh and Sultan Singh were arrested and on completion of
    investigation, charge­sheet was filed and charges under Sections
    302, 394, 394/34, 324 or 324/34 IPC were framed against them
    who denied the charges and claimed trial. The prosecution in
    support of its case examined as many as 24 witnesses. The
    appellant claimed innocence in the explanation under Section
    313 CrPC, three witnesses in support of defence were examined
    and learned trial Court after hearing acquitted co­accused
    persons namely, Ram Lal, Arjun Singh and Sultan Singh and
    convicted the appellant and sentenced him under Sections 302,
    204, 394 and 324 IPC. Against conviction & sentence, accused
    appellant preferred appeal & the State of Rajasthan also
    preferred appeal against acquittal of the other three accused
    persons, both the appeals were dismissed affirming the judgment
    of the trial Court vide judgment impugned dated 4th February,
    2008.
  3. Against the said judgment, this appeal by way of special
    leave has been filed.
    3
  4. Heard Mr. Sushil Kumar Jain, learned senior counsel for
    the appellant and Ms. Ruchi Kohli, learned counsel for the State.
  5. The main emphasis of Mr. Sushil Kumar Jain, learned
    senior counsel for the appellant is that PW­13 Sunil Kumar Goyal
    was the sole eye witness on whose statement conviction has been
    recorded and the present appellant has been assigned only an
    injury on the head of the deceased Yashwant which is not the
    only cause of death as per the statement of PW­6 Dr. Bhupesh
    Dayal and PW­7 Dr. Ramesh Chandra Khatik and further
    submitted that after the acquittal of other three accused persons
    namely Ram Lal, Arjun and Sultan Singh who too inflicted
    injuries on the various parts of the body of the deceased
    Yashwant, the appellant alone cannot be held guilty of causing
    the fatal injury and conviction under Section 302 IPC cannot be
    sustained and he at the most is liable to be convicted under
    Section 304 Part I or II IPC.
  6. Learned senior counsel further submits that conviction of
    the appellant is only based on the statement of PW­13 Sunil
    Kumar Goyal who has been disbelieved qua the other three
    4
    accused persons, namely, Ram Lal, Arjun Singh and Sultan
    Singh by the learned trial Court as well as by the High Court.
    The High Court has come to the conclusion that the three coaccused persons namely Ram Lal, Arjun Singh and Sultan Singh
    were falsely implicated for the various reasons and presence of
    these co­accused persons at the time of the incident itself was
    doubtful at least based on the statement of PW­13 Sunil Kumar
    Goyal who was highly interested and unreliable witness and on
    whose statement, at least the appellant could not have been held
    guilty and convicted under Section 302 IPC.
  7. Learned senior counsel further submits that the conviction
    of the appellant on the sole ocular testimony of PW­13 Sunil
    Kumar Goyal is otherwise not sustainable for the reason that the
    material portion of the prosecution case with regard to the
    manner of the incident and the injuries assigned to various other
    alleged accused persons, namely, Ram Lal, Arjun Singh and
    Sultan Singh has been disbelieved and the very genesis of the
    incident is itself doubtful and in the given circumstances, the
    learned trial Court and the High Court has committed a serious
    manifest error in holding conviction of the appellant based on the
    5
    testimony of PW­13 whose sole testimony was not believed with
    regard to the material portion of the prosecution case as alleged
    in the first information report and the statement of witnesses and
    in support thereof placed reliance on the judgment of this Court
    in Hari Kishan Vs. State of Haryana 2010(2) SCC 131 and
    Arshad Hussain Vs. State of Rajasthan 2013(14) SCC 104 and
    submits that once the substantial part of the prosecution story
    has been disbelieved and the conviction of the appellant rests
    solely on the testimony of Sunil Kumar Goyal(PW­13) whose
    statement otherwise lose credibility, it will not be sufficient to
    hold conviction under Section 302 IPC and further submits that
    the cause of death is the common factor for all the injuries
    assigned to four accused persons out of which three of them,
    namely, Ram Lal, Arjun Singh and Sultan Singh have been
    acquitted and in the statement of Dr. Bhupesh Dayal(PW­6) and
    Dr. Ramesh Chandra Khatik(PW­7), it is clearly stated that cause
    of death of the deceased Yashwant was due to shock which
    occurred due to haemorrhage because of the injuries inflicted in
    the brain which has been recorded even in the post­mortem
    report(Exh. 33). In the given facts and circumstances, it could
    not be established that the fatal injury was caused by the
    6
    appellant and he could not have been convicted under Section
    302 IPC.
  8. Learned senior counsel further submits that the recovery
    memos of axe(Exh. 40), dhoti(Exh. 36) and motorcycle(Exh. 51)
    has been attested by the police personnel with no independent
    witnesses i.e. PW 15 Dhara Singh and PW 22 Raghuveer Singh
    for axe and Birdhi Chand, SHO(PW­20) and Shafiq
    Mohammed(Head Constable) PW­23 for motor cycle have been
    produced to attest the said recoveries and a presumption with
    regard to statement by police officer as independent evidence
    cannot be presumed under Section 114 of the Evidence Act.
  9. Learned counsel Ms. Ruchi Kohli, for the respondent, on the
    other hand, submitted that although the State has not preferred
    any appeal against the acquittal of other accused persons but in
    the light of evidence adduced by the prosecution assigning the
    specific role of the appellant, no error has been committed by the
    High Court in confirming his conviction and prays for dismissal
    of the appeal. Learned counsel submits that the testimony of the
    eye­witness Sunil Kumar Goyal(PW­13) is reliable and he has
    7
    withstood the same in his cross­examination as well which has
    been discussed in detail by the learned trial Court and also by
    the High Court as well and needs no further re­appraisal of the
    evidence and further submits that what is being stated by the
    eye­witness Sunil Kumar Goyal(PW­13) is corroborated by the
    medical evidence of PW­6 Dr. Bhupesh Dayal and PW­7 Dr.
    Ramesh Chandra Khatik who have conducted the autopsy on the
    body of the deceased Yashwant and who, in their crossexamination, has stated that the injury caused to deceased
    Yashwant by the accused appellant was sufficient to cause death.
    Learned counsel further submits that although Paras Mal(PW­1­
    injured) was turned hostile but still it proves the presence of the
    accused and the deposition of Sunil Kumar Goyal(PW­13) that
    the accused hit the deceased Yashwant on his head and the
    injury on the shoulder of Paras Mal(PW­1) is also being supported
    by the medical evidence on record and apart from the
    corroboration of the medical evidence, the recovery of axe(Exh.P40) at the behest of the accused appellant from his house has
    been proved by Dhara Singh(PW­15) and Raghuveer Singh(PW22) and recovery of Motorcycle of the deceased has been proved
    by Birdhi Chand SHO(PW­20) & Shafiq Mohammed(Head
    8
    Constable)(PW­23) in their respective statements and merely
    because they are the police witnesses, their evidence cannot be
    disregarded as unworthy and placed reliance on the judgment of
    this Court in Baldev Singh Vs. State of Haryana 2015(17) SCC
    554 and Girja Prasad(Dead) by LRs Vs. State of M.P. 2007(7)
    SCC 625 and submits that the High Court was justified in
    upholding the conviction of the appellant.
  10. In order to appreciate the rival submission of the parties, it
    may be apposite to refer the first information report(Exh. P2)
    made by Sunil Kumar Goyal(PW­13) which reads as under:­
    “Today at about 6­30 O’clock in the evening as usual
    my elder brother Yashwant Kumar, Parasmal ji son of
    Shri Sobhagmal ji and I in my Hero Honda Motorcycle,
    the number of which is RJ20­8M 9309 and LOVE is
    written in English on the backside number plate, we
    three went to village Dudhlai village to look after our
    agricultural farm. After staying there for about an
    hour when we are coming back via Dudhlai village, we
    met these four persons, namely Kripal singh, son of
    Than Singh, caste Rajput, resident of Dudhlai, 2.
    Ramlal, son of Anar singh ji, caste Rajput, resident of
    Mandpur, 3. Arjun Singh, son of Bheru Singh, caste
    Rajput, resident of Padla, 4. Sultan Singh, son of
    Bheru Singh, caste Rajput, resident of Padla in front of
    the house of Dule Singh. Kripal singh was having axe
    and Ramlal was having a lathi fitted with Dharia,
    Sultan Singh was having sword and Arjun Singh was
    having farsa. On seeing us they said that today do not
    allow Yaswant Singh to go alive today. Got a good
    opportunity today. Saying this, these four surrounded
    us. Seeing this Paras and I got down from the
    motorcycle. When my brother Yashwant ji, who was
    9
    driving the motorcycle, when wanted to get down
    Kripal Singh hit axe on his head. After that Ramlal hit
    the lathi fitted with Dharia above the left eye and Arjun
    Singh gave blow with his sword on his neck. Sultan
    Singh hit the lathi fitted with farsa on the head. While
    we were standing there they stated that these two
    should not be left alive. Then we ran away from there.
    While fleeing Kripal Singh gave a blow with his axe on
    the left shoulder of Parasmal ji. We two in order to
    save our lives when ran towards the field, Kripal Singh
    took my motorcycle and chased us. In the dark we hid
    ourselves in the field. After some time everything
    became quite there. We went there and saw that my
    brother Yashwant had died because of serious injuries
    on his body. Those four persons killed my brother and
    took away my Hero Honda Motorcycle No. RJ 8M 9309,
    the colour of which is Maroon. These persons
    committed this criminal act on account of our old
    enmity in connection of our lands. Report is submitted
    for appropriate action.”
  11. On scrutinising the content of the first information report
    recorded by Sunil Kumar Goyal(PW­13), it is clear that the
    occurrence took place on 28th July, 2001 at around 6.30 p.m.
    when the informant Sunil Kumar Goyal(PW­13) along with his
    brother Yashwant and Paras Mal were returning back on a motor
    cycle from their agricultural farm situated at Village Doodhlai,
    they met the present accused appellant along with Ram Lal,
    Arjun Singh and Sultan Singh near the house of Dhoole Singh.
    All the four were armed with axe, lathi, dharia, sword and
    pharsa. The informant Sunil Kumar Goyal(PW­13) and Paras
    Mal(PW­1) got down and distanced themselves but deceased
    10
    Yashwant could not do so and the accused inflicted blows with
    axe, dharia, sword, pharsa and lathi on the person of the
    deceased Yashwant. The accused appellant chased Paras
    Mal(PW­1) and gave blow with axe on his shoulder. The analysis
    of the evidence came on record and the learned trial Court after
    hearing acquitted the other accused persons, namely, Ram Lal,
    Arjun Singh and Sultan Singh and held the present appellant
    guilty under Section 302 IPC and sentenced him to life
    imprisonment and the appeal preferred by the appellant came to
    be dismissed by the High Court under the impugned judgment
    dated 4th February, 2008.
  12. Before we proceed to examine the rival submissions of the
    parties, it will be apposite to take note of post­mortem report on
    the body of the deceased Yashwant which is as under:­
  13. Incised wound 4” x 2” x cervical vertebrae deep
    ocrophagus trachea & CS vertebrae tractmend present on
    the anterior side of neck at the level of thyroid region.
  14. Incised wound 3” x 2” x muscle deep sustained on the
    right side of base of neck.
  15. Incised wound 2 ½ ” x 1” x muscle deep present on the
    right shoulder.
    11
  16. Incised wound 7” x 1” x muscle deep sustained on the
    front of neck just below the thyroid region.
  17. Incised wound 6” x 1 ½” x muscle deep sustained just
    below the ramus of left mandible.
  18. Incised wound 3” x 1” x brain deep sustained on the left
    side of forehead just above the left eye brow, bone cut
    and brain matter present.
  19. Incised wound 4” x 1 ½” x brain deep sustained on the
    left parietal region of the scalp, bone cut and brain
    matter present.
  20. Incised wound 2 ½ ” x 1” x bone deep sustained on the
    right temporal region of the scalp bone cut & brain
    matter present.
  21. Incised wound 1 ½” x ½” x brain deep sustained on the
    upper half of right ear pinna. Mastoid process cut and
    brain matter present.
  22. We also find that Paras Mal(PW­1) was related to the
    informant Sunil Kumar Goyal(PW­13). The allegation against the
    appellant is that he inflicted injuries on the person of deceased
    Yashwant and Paras Mal(PW­1) and took away the motor cycle of
    deceased Yashwant which was recovered in the presence of
    Birdhi Chand SHO Ganganagar P.S.(PW­20) and Shafiq
    Mohammed, Head Constable(PW­23). The axe(Exh. P40) was also
    recovered in the presence of Dhara Singh, Constable(PW­15) and
    Raghuveer Singh(PW­22). Although Paras Mal(PW­1) who
    sustained injury in the incident, did not support the prosecution
    12
    and he was declared hostile but his medical legal report (MLR)
    indicates that he too was injured by the present accused
    appellant in the alleged incident.
  23. The emphasis of Mr. Sushil Kumar Jain, learned senior
    counsel for the appellant that the appellant has been assigned
    only one injury on the head of the deceased Yashwant which is
    not only the cause of death and when the statement of Sunil
    Kumar Goyal(PW­13) has been partially disbelieved qua the other
    three co­accused persons who are actively shown in participating
    in the commission of crime and who have been acquitted by the
    learned trial Court and confirmed by the High Court on dismissal
    of the appeal preferred by the State of Rajasthan, no credibility
    be attached and on the same set of evidence, the appellant could
    not have been held guilty and his conviction under Section 302
    IPC needs interference of this Court.
  24. We have already noted the contents of the first information
    report and the conclusions of the High Court upholding the
    conviction of the appellant under Section 302 IPC. The ocular
    witness relied upon by the prosecution is Sunil Kumar Goyal(PW13
    13), the complainant/informant. A perusal of the evidence of
    Sunil Kumar Goyal(PW­13) shows that he supported what was
    contended by him on which the first information report was
    registered and his court statement as PW­13 was in conformity
    with the contents of the first information report. In other words,
    he reiterated what he has stated in the first information report.
    It was specifically deposed by him that on 28th July, 2001, i.e. at
    6.30 p.m., he along with his brothers Paras Mal(PW­1) and
    Yashwant(deceased) were returning back on the motor cycle from
    their agricultural farm situated at Village Doodhlai and while
    they were returning back on the motor cycle near the house of
    Dhoole Singh, they met Kripal Singh(appellant) with three other
    persons namely, Ram Lal, Arjun Singh and Sultan Singh. The
    accused appellant was having axe and he hit on the head of
    deceased Yashwant and while returning back, accused appellant
    hit axe on the shoulder of Paras Mal(PW­1). There was a recovery
    of axe and motor cycle of the deceased Yashwant by Dhara
    Singh(PW­15) and Raghuveer Singh(PW­22) and the injury was
    supported by Dr. Bhupesh Dayal(PW­6) and Dr. Ramesh
    Chandra Khatik(PW­7) who conducted the autopsy on the body of
    the deceased Yashwant. The statement of the doctors was read
    14
    over to us who in their deposition stated that the injuries were
    inflicted on the person of the deceased before his death. Injury
    no. 1 which was caused on the neck and throat and all the
    injuries caused on the head were separately sufficient to cause
    death of the injured. In the statement of Sunil Kumar Goyal(PW13), the injury on the head of the deceased has been specifically
    attributed to the accused appellant by axe. The prosecution has
    proved the case against the present accused appellant beyond
    reasonable doubt that the injury on the head of the deceased
    which was attributed to the accused appellant could in itself be
    sufficient to cause death and this is what has been considered by
    the learned trial Court and confirmed by the High Court in
    appeal and we too are of the view that the prosecution has
    believed the case against the appellant and the possibility of overimplication of co­accused Ram Lal, Arjun Singh and Sultan Singh
    would not in any manner rule out the case of the present
    appellant and the prosecution has proved beyond reasonable
    doubt holding him guilty. It would have been unreasonable on
    our part if we could have mechanically rejected such evidence
    available on record on the sole ground that it is partisan would
    invariably lead to failure of justice. No hard­and­fast rule can be
    15
    laid down as to how much evidence should be appreciated but
    what is required is that judicial approach has to be cautious in
    dealing with such evidence; but the plea that such evidence
    should be rejected because it is partisan cannot be accepted as
    correct. This has been considered by this Court in Rizan and
    Another Vs. State of Chhatisgarh through the Chief
    Secretary, Government of Chhatisgarh, Raipur, Chattisgarh
    2003(2) SCC 661 at para 12 as under:­
    “12. Stress was laid by the accused­appellants on the
    non­acceptance of evidence tendered by some
    witnesses to contend about desirability to throw out
    the entire prosecution case. In essence, prayer is to
    apply the principle of falsus in uno falsus in omnibus
    (false in one thing, false in everything). This plea is
    clearly untenable. Even if a major portion of evidence is
    found to be deficient, in case residue is sufficient to
    prove guilt of an accused, notwithstanding acquittal of
    a number of other co­ accused persons, his conviction
    can be maintained. It is the duty of the Court to
    separate the grain from the chaff. Where the chaff can
    be separated from the grain, it would be open to the
    Court to convict an accused notwithstanding the fact
    that evidence has been found to be deficient to prove
    guilt of other accused persons. Falsity of a particular
    material witness or material particular would not ruin
    it from the beginning to end. The maxim falsus in uno
    falsus in omnibus has no application in India and the
    witnesses cannot be branded as liars. The maxim
    falsus in uno falsus in omnibus has not received
    general acceptance nor has this maxim come to occupy
    the status of a rule of law. It is merely a rule of
    caution. All that it amounts to, is that in such cases
    testimony may be disregarded, and not that it must be
    disregarded. The doctrine merely involves the question
    of weight of evidence which a Court may apply in a
    16
    given set of circumstances, but it is not what may be
    called “a mandatory rule of evidence”. (Nisar Ali v.
    State of U. P. AIR 1957 SC 366). Merely because some
    of the accused persons have been acquitted, though
    evidence against all of them, so far as direct testimony
    went, was the same does not lead as a necessary
    corollary that those who have been convicted must also
    be acquitted. It is always open to a Court to
    differentiate accused who had been acquitted from
    those who were convicted. (Gurcharan Singh v. State of
    Punjab AIR 1956 SC 460). The doctrine is a dangerous
    one, specially in India for if a whole body of the
    testimony were to be rejected, because a witness was
    evidently speaking an untruth in some aspect, it is to
    be feared that administration of criminal justice would
    come to a dead­stop. Witnesses just cannot help in
    giving embroidery to a story, however, true in the
    main. Therefore, it has to be appraised in each case as
    to what extent the evidence is worthy of acceptance,
    and merely because in some respects the Court
    considers the same to be insufficient for placing
    reliance on the testimony of a witness, it does not
    necessarily follow as a matter of law that it must be
    disregarded in all respects as well. The evidence has to
    be shifted with care. The aforesaid dictum is not a
    sound rule for the reason that one hardly comes across
    a witness whose evidence does not contain a grain of
    untruth or at any rate exaggeration, embroideries or
    embellishment. (Sohrab v. State of M. P. 1972(3) SCC
    751 and Ugar Ahir v. State of Bihar AIR 1965 SC 277).
    An attempt has to be made to, as noted above, in terms
    of the felicitous metaphor, separate the grain from the
    chaff, truth from falsehood. Where it is not feasible to
    separate truth from falsehood, because the grain and
    the chaff are inextricably mixed up, and in the process
    of separation an absolutely new case has to be
    reconstructed by divorcing essential details presented
    by the prosecution completely from the context and the
    background against which they are made, the only
    available course to be made is to discard the evidence
    in toto. (Zwinglee Ariel v. State of M. P. AIR 1954 SC 15
    and Balaka Singh v. State of Punjab 1975(4) SCC 511).
    As observed by this Court in State of Rajasthan v.
    Kalki 1981(2) SCC 752 normal discrepancies in
    evidence are those which are due to normal errors of
    observation, normal errors of memory due to lapse of
    time, due to mental disposition such as shock and
    17
    horror at the time of occurrence and those are always
    there, however honest and truthful a witness may be.
    Material discrepancies are those which are not normal,
    and not expected of a normal person. Courts have to
    label the category into which a discrepancy may be
    categorized. While normal discrepancies do not corrode
    the credibility of a party’s case, material discrepancies
    do so. These aspects were highlighted recently in
    Krishna Mochi v. State of Bihar 2002(6) SCC 81 and
    Gangadhar Behera v. State of Orissa 2002(8) SCC 381.
    Accusations have been clearly established against the
    accused­appellants in the case at hand. The Courts
    below have categorically indicated the distinguishing
    features in evidence so far as the acquitted and
    convicted accused are concerned.”
  25. It was further held in Vutukuru Lakshmaiah Vs. State of
    Andhra Pradesh 2015(11) SCC 102 as under:­
    “23. At this juncture, it is worthy to note that the High
    Court has acquitted A­4, A­8 and A­9 on the foundation
    that they have been falsely implicated. Learned senior
    counsel for the appellants has contended that when the
    appellate court had acquitted the said accused persons,
    there was no warrant to sustain the conviction of other
    accused persons. On a perusal of the judgment of
    appellate court, we find that the judgment of acquittal
    has been recorded on the score that the names of A­8
    and A­9 do not find mention in the evidence of PWs 1 to
  26. On a similar basis, A­4 has been acquitted. Suffice it
    to mention here because the High Court has acquitted
    A­4, A­8 and A­9, that would not be a ground to
    discard the otherwise reliable dying declaration, for the
    evidence in entirety vividly show the involvement of the
    appellant­accused.”
  27. The submission of the learned senior counsel for the
    appellant that recovery has not been proved by any independent
    witness is of no substance for the reason that in the absence of
    independent witness to support the recovery in substance cannot
    18
    be ignored unless proved to the contrary. There is no such legal
    proposition that the evidence of police officials unless supported
    by independent witness is unworthy of acceptance or the
    evidence of police officials can be outrightly disregarded.
  28. The judgments on which the reliance has been placed by
    learned senior counsel for the appellant in Hari Kishan’s
    case(supra) and Arshad Hussain’s case(supra) may not be of
    any assistance for the reason that earlier was a case where there
    was a serious dispute when the incident took place and that was
    not even supported by the medical evidence which has been
    referred to in paragraph 31 of the judgment which is as under:­
    “31. Summing up the discussions made above, we
    have before us a case where a substantial part of the
    prosecution story has been disbelieved and the
    conviction of the appellant rests solely on the
    testimony of Harkesh (PW 2) who does not seem to
    have particular respect for truth as observed by the
    trial court. His credibility as an eyewitness lay only in
    that the trial court and the High Court assumed that
    he had received injuries in the same occurrence in
    which Dinesh was killed. As shown above that
    assumption does not appear to be very sound and is
    not borne out by the evidences on record. In such a
    situation, we find it highly unsafe to uphold and
    sustain the appellant’s conviction for the offence of
    murder. To us, it appears that the prudent and safe
    course would be to give him the benefit of doubt.”
    19
  29. In Arshad Hussain’s case(supra), it was a case where the
    prosecution supressed the genesis and the manner in which the
    incident took place and that was not even supported by the
    nature of the weapon used and there were lot of discrepancies
    pointed out in the case set up by the prosecution of which details
    have been referred to in paragraphs 17 to 19. That was the
    reason for which the partial statement of the witnesses could not
    have been relied upon and as already observed, there cannot be
    hard­and­fast rule that can be laid down and each case has to be
    examined on its own facts.
  30. In the instant case, the statement of eye­witness Sunil
    Kumar Goyal(PW­13), the injury attributed to the accused
    appellant, recovery of weapon and the motor cycle and the
    statement of Dr. Bhupesh Dayal(PW­6) and Dr. Ramesh
    Chandra Khatik(PW­7) that the injury on the head attributed to
    the appellant could have been sufficient to cause death, clearly
    corroborates the prosecution case which leaves no manner of
    doubt that the appellant was actively involved in the commission
    of crime and once that fact is predicated beyond reasonable
    doubt, the partial statement which has been doubted could not
    20
    be used by the appellant as a defence to shake the prosecution
    case which has been discussed by us in detail, deserves rejection.
  31. In our considered view, the appeal is devoid of merit and is
    dismissed. The appellant is on bail. His bail bonds are
    cancelled. He is directed to surrender forthwith and serve the
    remaining part of sentence.
    …………………………J.
    (A.M. KHANWILKAR)
    …………………..…….J.
    (AJAY RASTOGI)
    NEW DELHI
    February 15, 2019
    21