GOVIND MUDAIYA vs THE STATE OF JHARKHAND

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
-----
Cr. Appeal (DB) No.1139 of 2017
------
Bakra Mundaiya @ Bakra Munduiya @ Sidiyu, son of Late Gura
Mundaiya, Resident of village Hatnabera, P.O. and P.S.
Jhinkpani District West Singhbhum at Chaibasa
… . …. Appellant
Versus
The State of Jharkhand … . …. Respondent
With
Cr. Appeal (DB) No.963 of 2017
------
Bir Singh Mundaiya @ Kebeya @ Vir Singh Munduiya @ Lebiya
@ Bir Singh Munduiya, Son of Late Sidiu Mundaiya, resident of
Village-Hatnabera, P.O-Asura, P.S: -Jhinkpani, Dist:- Singhbhum
West, Chaibasa … . …. Appellant
Versus
The State of Jharkhand … . …. Respondent
With
Cr. Appeal (DB) No.1094 of 2017
------
1. Vijay Mundaiya, Son of Binnu Mundaiay
2. Jagdish Devgam, Son of Turi Devgam
3. Manoj Mundaiya @ Tella, S/o Late Ladura Mundaiya.
4. Ghanshayam Mundaiya, Son of Patar Mundaiya
All are resident of Village:-Hatnabera, P.O & P.S:-Jhinkpani,
Dist:- Singhbhum West, Chaibasa
…. …. Appellants
Versus
The State of Jharkhand …. …. Respondent
With
Cr. Appeal (DB) No.1269 of 2017
------
Vibhishan Raidas @ Ravidas @ Jagdish, son of Gura Ravidas,
resident of Village-Hatnabera, P.O. & P.S.-Jhinkpani, District-
Singhbhum West. …. …. Appellant
Versus
The State of Jharkhand … . …. Respondent
With
Cr. Appeal (DB) No.922 of 2018
------
Govind Mudaiya, Aged about-31 Years, S/o-Late Manda Bajay
Mundaiya, Resident of village-Hatnabera, P.O.-Asura, P.S.
Jhinkpani, District-Singhbhum West, Chaibasa
… . …. Appellant
Versus
The State of Jharkhand … . …. Respondent
------
[ Against the common judgment of conviction dated 22.04.2017
and order of sentence dated 24.04.2017 passed by the learned

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Additional Sessions Judge-II, West Singhbhum in Sessions Trial
No.34 of 2013 ]
……………….

P R E S E N T
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
…..
For the Appellants : Mr. Gautam Kumar, Advocate
Mr. Birat Kumar, Advocate
[In Cr. Appeal (DB) Nos.1139, 963, 1094 of 2017]
Mr. Manoj Tandon, Advocate
Ms. Shivani Bhardwaj, Advocate
Mr. Shubham Kumar, Advocate
Mr. Ritwik Raj, Advocate
[In Cr. Appeal (DB) No.1269/2017]

Mr. Anjani Kumar, Advocate
[In Cr. Appeal (DB) No.922 of 2018]
For the State : Mrs. Nehala Sharmin, Spl. P.P.
[In Cr. Appeal (DB) Nos.1139 of 2017]

Mr. Abhay Kumar Tiwari, A.P.P.
[In Cr. Appeal (DB) No.1094/2017
Mr. Pankaj Kumar, P.P.
[In Cr. Appeal (DB) No.1269/2017]

Mr. Rajneesh Vardhan, A.P.P.
[In Cr. Appeal (DB) No.922/2018]

…..

C.A.V. on 07/04/2026 Pronounced on 13/05/2026

Per Sujit Narayan Prasad, J.

Prayer

1. The aforesaid appeals [Cr. Appeal (DB) No.1139 of 2017],
[Cr. Appeal (DB) No.963 of 2017], [Cr. Appeal (DB) No.1094 of
2017] and [Cr. Appeal (DB) No.1269 of 2017] filed under
Sections 374 (2) of the Code of Criminal Procedure, are directed
against the common judgment of conviction dated 22.04.2017
and order of sentence dated 24.04.2017 passed by the learned
Additional Sessions Judge-II, West Singhbhum at Chaibasa in
Sessions Trial No.34 of 2013.
2

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2. The Cr. Appeal (DB) No.922 of 2018 has been preferred
under Sections 374 (2) of the Code of Criminal Procedure, is
directed against the judgment of conviction dated 25.04.2018
and order of sentence dated 27.04.2018 passed by the learned
Additional Sessions Judge-II, West Singhbhum at Chaibasa in
Sessions Trial (S) No.34 of 2013.
3. From the aforesaid orders, the above-named appellants
have been convicted and sentenced as follows: -
Sl.No. Name of Appellants Conviction Period of
Sentence &
Fine
Bakra Mundaiya @ Bakra
1.
Munduiya @ Sidiyu @ Sidiu

(Cr. Appeal (DB) No.1139/17)
Under Sections
364/34, 302/34 &
307/34 IPC, Section 27
of the Arms Act
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. Further, R.I.
of seven years along
with fine of
Rs.5000/- for the
offence under
Section 27 of the
Arms Act. In default
of payment of fine,
an additional R.I. of
6 months. All the
sentences have
been directed to run
concurrently.
Bir Singh Mundaiya @ Vir
2.
Singh Munduiya @ Lebiya @
Bir Singh Munduiya @ Kebeya

(Cr. Appeal (DB) No.963/17)
Under Sections
364/34, 302/34 &
307/34 IPC
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
3

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additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. All the
sentences have
been directed to run
concurrently.
Vijay Mundaiya
3.
(Cr. Appeal (DB) No.1094/17)
Under Sections
364/34, 302/34 &
307/34 IPC
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. All the
sentences have
been directed to run
concurrently.
Jagdish Devgam
4.
(Cr. Appeal (DB) No.1094/17)
Under Sections
364/34, 302/34 &
307/34 IPC
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
4

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the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. All the
sentences have
been directed to run
concurrently.
Manoj Mundaiya @ Tella
5.
(Cr. Appeal (DB) No.1094/17)
Under Sections
364/34, 302/34 &
307/34 IPC
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. All the
sentences have
been directed to run
concurrently.
Ghanshayam Mundaiya
6.
(Cr. Appeal (DB) No.1094/17)
Under Sections
364/34, 302/34 &
307/34 IPC
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. All the
sentences have
been directed to run
concurrently.
Vibhishan Raidas @ Ravidas
7.
@ Jagdish
(Cr. Appeal (DB) No.1269/17)
Under Sections
364/34, 302/34 &
307/34 IPC, Section 27
of the Arms Act
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
5

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Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. Further, R.I.
of seven years along
with fine of
Rs.5000/- for the
offence under
Section 27 of the
Arms Act. In default
of payment of fine,
an additional R.I. of
6 months. All the
sentences have
been directed to run
concurrently.
Govind Mudaiya
8.
(Cr. Appeal (DB) No.922/18)
Under Sections
364/34, 302/34 &
307/34 IPC
R.I. of 10 years
along with fine of
Rs.5000/- for the
offence under
Section 364/34 IPC.
In default of
payment of fine, an
additional R.I. of six
months. Further, R.I.
for life along with
fine of Rs.10,000/-
for the offence under
Section 302/34 IPC,
In default of
payment of fine,
further an additional
R.I. of 6 months.
Further, R.I. of ten
years along with fine
of Rs.10,000/- for
the offence under
Section 307/34 IPC.
In default of
payment of fine, an
additional R.I. of 6
months. All the
sentences have
been directed to run
concurrently.

4. This Court, before proceeding to examine the legality and
propriety of the judgment of conviction and order of sentence,
6

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deems it fit and proper to refer the background of prosecution
case, as per the fardbeyan of the informant.
Prosecution case
5. The prosecution case in brief is that the informant,
Panchay Munduiya was engaged in work of mason and on 26-
08- 2012, at about 5 o’ clock in the evening, when he was
returning to his house after completing his work, the informant
reached near the village Aashura where one Birendra Munduiya,
resident of village Hatnabeda, also came there and he was also
returning to his village.
6. The informant purchased some radish from Gudri Bazar
and thereafter, he was returning to his village by his bicycle. In
course of returning, when the informant reached to the
playground of village Tokligoda in front of the river, the Virsingh
Munduiya @ Lebiya, Ghanshyam Mundaiya, Subedar Mundaiya
@ Raikonda, Bakra Munduiya @ Sidiyu, Vijay Mundaiya,
Vibhishan Ruidash @ Jagdish, Manoj Mundaiya, Jagdish
Devgam, Bablu Munda and Govind Mundaiya came there and
they restrained the informant and started assaulting him. In the
meantime, one co-villager of informant, namely, Birendra
Munduiya also came there.
7. Thereafter, all the above-named accused persons brought
their Motorcycles and they made informant to sit on Motorcycle
of Ghanshyam. They all took them towards Dadima passing
through Munda Agardiha etc. by saying that there is a Ojha and
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he disturbed his mind by doing some pooja by that Ojha and it
will be verified by said Ojha there.
8. It has been further stated that before the village of Dadima,
there are hillocks and forest and there was a tamarind tree
besides the road. The accused persons stopped all the
Motorcycles there, beneath the said tamarind tree and they took
the informant and the Birendra Muduiya to the pond passing
through the paddy field and made them to sit on a stone lying
near the said pond. In the meantime, it had become dark and the
accused persons told the informant to disclosed the house of the
Ojha. The informant showed his inability by saying that there is
neither any village nor any house, how can he say it. Thereafter,
the accused Bankra Munduiya took a pistol from his waist and he
fired bullet at the Birendra Munduiya. The accused Vibhishan
also shot bullet to the informant.
9. It has been further stated that when the informant regained
his consciousness, he found himself lying in water of pond.
Thereafter, he came out of pond any how and raised noise, upon
which, the villagers came there and they took the informant to
Dadima village and seeing the condition of informant, they sent
him to Sadar Hospital where his treatment was being done and
the informant came to know that Birendra Munduiya has been
killed by bullet shot and thereafter, he had been also thrown in
the pond.
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10. The fardbeyan of informant was recorded by S.I. Mahendra
Kumar of Sadar P.S. at Sadar Hospital, Chaibasa on Bed No.16
of male ward, on the basis of which, this case was registered
against altogether eleven accused persons under Sections 364,
302 & 307/34 I.P.C.
11. After completion of investigation, the Investigating Officer
submitted charge-sheet against the eleven accused persons,
namely, Bir Singh Munduiya @ Lebeya, Ghnshyam Muduiya,
Bakra Munduiya @ Sidiyu, Bijay Munduiya, Vibhishan Roidash
@ Ravidash, Manoj Munduiya @ Tella, Jagdish Devgam,
Govind Munduiya, Bablu @ Diku, Sura @ Naresh Munduiya and
Subedar Munduiya @ Rephonda U/s 364, 302, 307/34 I.P.C.
and 27 Arms Act showing the accused persons, namely, Sura @
Naresh Munduiya and Subedar Munduiya @ Rephonda as
Absconder.
12. Thereafter, the cognizance of the offence was taken
against altogether aforesaid eleven accused persons under
Section 364, 302, 307/34 IPC and Section 27 of the Arms Act.
The case was committed to the Court of Sessions. The charge
was framed against nine accused persons, namely, Bakra
Munduiya, Vibhishan Munduiya, Jagdish Devgam, Govind
Munduiya, Bablu Munda, Vijay Munduiya, Ghanshayam
Munduiya and Vir Singh Munduiya and Manoj Munduiya under
Section 364/34, 307/34, 302/34 IPC and Section 27/35 of the
Arms Act and the same was read over and explained to them in
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Hindi, upon which, they claimed not to be guilty and demanded
for trial.
13. Subsequently, the case was committed against altogether
eleven accused persons, showing the two accused persons,
namely, Subedar Munduiya and the Sura @ Naresh Munduiya
as absconder and there is no order regarding the said two
absconding accused persons.
14. After the evidence of prosecution, the statement of eight
accused persons as well as one accused person, namely,
Govind Mundaiya under Section 313 Cr.P.C. was recorded, in
which, they denied from prosecution evidence and claimed
themselves to be innocent and accordingly trial proceeded.
15. Subsequently, in course of trial, one of the accused
persons, out of said nine accused persons, namely, Govind
Mudaiya (appellant in Cr. Appeal (DB) No.922 of 2018) remained
absent and accordingly, his bail was cancelled and warrant of
arrest and Process under Section 82 and 83 Cr.P.C. has been
issued against him and subsequently, his case record was split
up from the rest accused/appellant persons and this
supplementary case record was opened in his name. Hence, the
trial of the above-named accused/appellant Govind Mudaiya has
been done in the session trial being S.T.(S) No. 34 of 2013.
16. In both the sessions trial, the prosecution has examined
altogether nine witnesses, i.e., P.W.1-Pachay Munduiya
(Informant), P.W.2- Manay Munduiya, P.W.3-Lakhindra
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Munduiya, P.W.4-Dr. Mahabir Prasad Gopalika, P.W.5-
Jitendra Nath Munduiya, P.W.6-Moyka Sirka, P.W.7-Dr. M.K.
Sinha, P.W.8-Parshuram Paswan (Investigating Officer) and
P.W.9-Dr. Devi Prasad Hansda (Doctor) .
17. The learned Trial Court, after perusal of record, found the
charge levelled against the appellants proved. Accordingly, the
appellants have been found guilty, as such, convicted and
sentenced vide impugned judgment of conviction dated
22.04.2017 and order of sentence dated 24.04.2017 as
aforesaid, which is the subject matter of instant appeals.
Submission of the learned counsel for the appellants
18. Learned counsel for the appellants, in all the cases, have
submitted that the impugned judgment of conviction and order of
sentence suffers from infirmity on the following grounds: -
(i) It has been contended that no independent
eyewitness has been examined and there are vital
contradictions in the details of injury given in the inquest
report of deceased.
(ii) It has further been contended that the prosecution
case is highly improbable and the same is concocted one.
(iii) The evidence of PW-1 is full of contradictions and
inconsistencies as this witness has stated that the villagers
brought him to the hospital but this witness has not
disclosed the name of any villager who get him from the
pond, whereas, the PW-8 stated that PW-6 in course of
11

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investigation stated that the informant PW-1 stated before
him about the said occurrence but the PW-6 has been
declared hostile and therefore the whole evidence of PW-1
is not fit to be relied.
(iv) There is no explanation as to why the informant did
not raise noise when the accused persons were allegedly
taking him from near the ground of Tokali. Further, no
persons of Village Dadima have been examined as the
prosecution witness in this case makes the entire
prosecution case suspicious and hence, the accused
persons are liable to be acquitted by giving them benefit of
doubt.
(v) The evidence of PW-1 is not consistent with the
Doctor who has examined the PW-1, as the injuries caused
to the informant by fire arm has not been opined by the
Doctor which itself suggests that the prosecution has failed
to prove its case beyond all reasonable doubts.
(vi) It is very well settled proposition of law that the
prosecution has to prove its case beyond all reasonable
doubt, whereas, in the present case, the prosecution
version is totally failed to stand as apart from PW-1, no
other witness is there to support him and the evidence of
PW-1 itself falsified.
(vii) The Hon'ble Supreme Court has already held in the
case of Lalu Manjhi and another Versus State of
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Jharkhand reported in 2003 (3) SCC 401 that conviction
cannot rests solely on the testimony of a single witness if it
lacks credibility, consistency and corroboration particularly
Investigation lapses and the present case also the
investigation is not proper one as the investigating officer
did not prepare any site plan of the place of blood of stain
not occurrence simple collected neither any weapon of
offence is seized nor any witness near the place of
occurrence at the time of incident has been interrogated
and the prosecution case is totally failed.
(viii) The prosecution witnesses have not remained
consistent with their version if the testimony of all the
witnesses will be taken into consideration, in entirety.
(ix) It has been submitted that the name of the accused
persons was not disclosed by the informant, namely,
Pachay Munduiya (P.W.1) at the first time to the villagers of
the village Dadima and the name of the accused persons
has been taken by the informant for the first time in the
hospital in his fardbeyan for falsely implicating the accused.
(x) It has also been submitted that due to previous
enmity, the appellants have falsely been implicated in the
instant case.
(xi) The prosecution has miserably failed in establishing
the charges levelled against the appellants beyond all
shadow of reasonable doubts.
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19. Learned counsel for the appellants, on the aforesaid
premise, has submitted that it is a case where it cannot be said
that the prosecution has been able to prove the charge beyond
all reasonable doubts and they cannot be said to be trustworthy
witnesses, therefore, the impugned judgment needs to be
interfered with.
Submission of the learned counsel for the Respondent-State
20. Per Contra, learned Public Prosecutor as also learned
Addl. Public Prosecutor appearing for the respondent-State have
defended the impugned judgment by taking the following
grounds: -
(I) The learned trial Court, while passing the impugned
judgment of conviction/sentence by taking into consideration the
testimony of P.W.1, the informant, as he has disclosed in his
cross-examination/examination-in-chief, has committed no error.
(II) All the prosecution witnesses have remained consistent
on the date, time and place of occurrence.
(III) P.W.-1, the informant was one of the victims of the
incident who himself got injured in the said incident, has fully
supported the prosecution case.
(IV) P.W.-1, the informant, has also narrated the role of
each of the aforesaid accused persons in committing the said
incident and he has identified all the accused persons before the
Court.
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(V) It has well been established from the ocular as well as
medical evidence also that the informant, namely, Pachay
Munduiya (P.W.1) is an eye witness of the case and he had also
sustained bullet injury on the vital part of his body.
(VI) It is quite impossible to say that a person would cause
himself such type of bullet injury merely for implicating someone
in the case and the oral testimony of the informant cannot be
discarded or suspected on this ground that why he was not died
also in the said incident.
(VII) There is no such rule that the evidence of an injured
witness cannot be relied upon merely on the ground that he is an
interested witness.
(VIII) It has also been contended that the prosecution has
been able to prove the charges levelled against the accused
persons beyond all shadows of reasonable doubts, hence, the
judgment of conviction/sentence cannot be said to suffer from an
error.
21. Learned Public Prosecutor, as also, learned Addl. Public
Prosecutor for the respondent-State, on the aforesaid premise,
has submitted by referring to the impugned judgment of
conviction/sentence that the learned trial court has given
thoughtful consideration on the testimony, based upon the same,
the judgment of conviction/sentence has been passed, hence, it
cannot be said that the judgment of conviction/sentence suffers
from illegality.
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Analysis
22. We have heard learned counsel for the parties, perused
the documents and the testimony of witnesses as also the
finding recorded by the learned trial Court in the impugned order.
23. This Court, before appreciating the arguments advanced
on behalf of the parties, as also, the legality and propriety of the
impugned judgment, deems it fit and proper to refer the
testimonies of prosecution witness.
24. P.W.1, Pachay Munduiya has deposed in his
examination-in-chief that the incident is of dated 26-08-2012 at
about 5 o’ clock in the evening. He was doing work of mason in
Gutusai at that time and after finishing his work, he was returning
to his house by bicycle. His brother Birendra Munduiya met him
in Asura. Thereafter, he had purchased some radish from there
and, he was returning to his village. The Bir Singh @ Leviya
Munduiya, Jagdish Devgam, Ghanshyam Munduiya,
GovindMunduiya, Vijay Munduiya, Vibhishan Ravidas, Tela,
Manoj Munduiya, Bakra Munduiya, Subedar Singh Munduiya,
Naresh Munduiya and Babu Munda restrained him in the way
and the Bakra Munduiya told him that he has done some pooja
due to which their mind had been disturbed. The Ghanshyam
Munduiya got him sat on his motorcycle and the Birendra
Munduiya and Vijay Munduiya were on another motorcycle. They
took him in the Darima village on the check dam near the forest
and they made the Birendra Munduiya and him to sat on a stone.
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Bakra Munduiya asked from him that what type of pooja he has
done? Thereafter, the Bakra Munduiya shot three bullets from a
pistol on the “Kanpatti” (Templed) of Birendra Munduiya and the
accused Bibhishan Raidas shot two bullets on his “Kanpatti”.
Thereafter, they threw both of them (i.e. this witness and the
Birendra Munduiya) in check dam. He started to swim in the
water and raised noise, upon which, the villagers came there and
they took him to the Dareema village. The villagers called the
police and they took him to the hospital where his treatment was
done.
25. After two days, he was sent to Jamshedpur for better
treatment. This witness has identified the accused persons
Lebiya, Bir Singh Munduiya, Govind Munduiya,Tela, Manoj
Muduiaya, Ghanshhyam, Vijay Munduiya, Vibhishan Ravidas,
Bakra Munduiya and the Jagdish Devgam before the Court also
and has further claimed to identify the rest accused persons on
seeing them. This witness has further stated that he had given
his statement to police in the Sadar Hospital Chaibasa and the
police had read over it to him after writing it, and after finding it
correct, he put my thumb impression over it.
26. Further, in his cross-examination, this witness has
deposed that his brother had met him in Asura at about 5:30 o’
clock and he was on his motorcycle. The distance of Asura from
Hatnabera is about 1 Km and the village Dadima is after 3-4
villages from the village Hatnabera. When the Bakra Munduiya
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was asking from him about the puja, no other person was there.
The accused persons took him by motorcycle and the
motorcycle of Bibhishan Raidas was behind them.
27. This witness has further deposed that the Birendra
Munduiya along with him was sitting on the check dam side by
side in a row and he has further denied from this suggestion of
defense that the accused persons had not shot bullet to
deceased or him. Further, at para-19 of his cross-examination,
this witness has deposed that when the accused persons
restrained him in the way, there was no other person and the
accused persons had got him sat on motorcycle forcibly and he
did not raise noise for his rescue in course of going. He had left
his bicycle at the place where accused persons have restrained
him for the first time.
28. P.W.2 Manaye Munduiya has deposed in his
examination-in-chief that his son Panchay Munduiya used to
work as a mason. The incident is of 2 years ago. His son was
returning to his house after finishing his work but he did not
return. On the next day, he searched for his son Panchai
Munduiya but he was not found. The people of Darma village
informed him that his son has been admitted in Sadar hospital,
Chaibasa. Thereafter, he went to the hospital and he saw his
son there. He saw injury over his cheek. His son told him that
Vibhishan has shot him bullet near the pond of Darma village
and he further told him that the accused Bakra has shot bullet to
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Birendra also. This witness has identified the accused persons
Bakra and Virendra before the Court also.
29. In his cross-examination, this witness has deposed that he
did not see the incident and further, he has denied from this
suggestion of defense that no such incident had taken place and
the accused persons have been falsely implicated in this case.
30. P.W.3 Lakhindra Munduiya has deposed in his
examination-in-chief that the incident is of dated 26-08-2012. His
brother Birendra Munduiya, who was B.L.W. in Kumardungi
block, did not return to house on that day. On the next morning,
the Tantnagar O.P. Police came and told him that one person
has died in firing in Manjhari whereas one person was injured
whose treatment was being done in Chaibasa Hospital.
Thereafter, he came to the Sadar Hospital, Chaibasa and the
injured Panchai Munduiya told him that the Sidiu Munda @
Bakra had shot bullet to Birendra Munduiya near the check dam
of Delma village and the Bibhishan Raidas @ Jagdish had shot
bullet to Panchai Munduiya by the pistol, kept in his waist and
thereafter, they had thrown both of them into the check dam
under this impression that they have died. When the Panchai
Munduiya regained his consciousness, he found himself in
water. He came from water and raised noise upon which the
people of Dalima village came there and they took the Panchai
Munduiya to hospital. The Birendra Munduiya was died at the
place of occurrence itself.
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31. This witness has identified both the accused persons
before the Court and stated that the Panchai Munduiya had not
told him the name of other persons as assailant.
32. Further, in his cross-examination, this witness has
deposed that he had not seen the incident. The injured Panchai
Munduiya had told him about the incident on Bed No.16. This
witness has further denied from this suggestion of defense that
no such incident had taken place.
33. P.W.4, Dr. Mahabir Prasad Gopalika has deposed in his
examination-in-chief that he had examined the Panchai
Munduiya on 27-08-2012 at about 0.30 A.m. at Sadar Hospital,
Chaibasa and found the following injuries:-
(i) 5 mm round hole inverted margin with dark ring around
the wound behind the left ear at left mastoid area deep about 4
inch oblique in direction, bleeding present.
(ii) 3 mm round hole inverted margin with abrasion brown
in colour around the wound near right side of nose at medial
canthus right eye.
(iii) Lacerated wound 2 inch x ¼ inch deep to muscles
right hand.
(iv) Body ache
(v) Hard mobile small body felt at (1) left side of nose near
medial canthus of left eye and (2) at sub mental area below chin.
This witness has further deposed that patient was advised
for x-ray and referred to M.G.M.C.H., Jamshedpur and he has
20

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further deposed that the injury 3 to 5 are caused by hard blunt
substance and simple in nature whereas the opinion reserved for
Injury No. 1 and 2 due to non-availability of x-ray report.
This witness has further deposed that the injury report was
written and signed by him ( Ext.1).
In his cross-examination, this witness has deposed that he
had referred the patient to higher center for management,
treatment and opinion. He did not get any x-ray report.
34. P.W. 5, Jitendra Nath Munduiya has deposed in his
examination-in-chief that incident is of dated 26-08-2012. The
Birendra Munduiya was murdered by shooting with bullet and the
Panchai Munduiya was injured by shooting bullet. The Bakra @
Sidiu Mundaiya had fired bullet on the left “Kanpatti” of Birendra
Munduiya due to which he was died on the place of occurrence
itself whereas the Vibhishan Raidas had shot bullet on Panchai
Munduiya on his left Kanpatti and injured him.
35. Apart from above named accused persons, the Birendra
Singh Munduiya, Jagdish Devgam, Ghanshyam Mundaiya, Vijay
Mundaiya, Manoj Mundaiya, Subedar Singh Munduiya and
Naresh Munduiya etc. were also involved.
36. The accused persons had taken the deceased and injured
in the Gourburu forest and made them to sat on stone and
thereafter, shot bullet to them. This witness has further deposed
that the accused persons had restrained the Panchai Munduiya
near Tokli Goda ground and they had taken the Birendra
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Munduiya and Panchai Munduiya on motorcycle from there. The
Bakra Munduiya had told that he has done some puja with the
help of Ojha, due to which, his mind was disturbed and the
mother of Bibhishan Raidas was also not getting well in spite of
her treatment.
37. This witness has further deposed that the dead body of
Birendra Munduiya was found in the water of the pond of Dadima
village in front of hill and he has identified the accused persons
before the Court also. He had gone to see the Panchai Munduiya
in Sadar hospital and he had told him about the incident.
38. In his cross-examination, this witness has deposed that he
came to know about the incident on 27-08-2012. The Police had
taken his statement on 27-08-2012 at about 9:00 a.m in the
morning and whatever he has told today, was known to him from
the Panchai Munduiya.
39. This witness has further deposed that the motorcycle was
Hero Honda Splender and its number was JH-06A-2979. This
witness has further denied from this suggestion of defense that
as the Panchai Munduiya is his cousin brother, he is falsely
deposing before the Court and implicating the accused persons
in this case.
40. P.W. 6 Moyka Sirka has been declared hostile and he has
not deposed anything about the incident.
41. P.W.7, Dr. M. K. Sinha has identified the discharge Report
of Panchay Munduya issued from MGM College Hospital,
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Jamshedpur (Ext.2) and deposed that this discharge report was
prepared by Dr. Gauri Shankar Baraik, of orthopedic department
and it bears his signature (Ext.2.)
42. Further, in his cross-examination, this witness has
deposed that this discharge report was not prepared by him.
43. P.W.8, Parshuram Paswan, has deposed in his
examination-in-chief that on 26-08-2012, he was posted as the
Officer-in-charge of Tantnagar O.P. At about 22:30 o’ clock in the
night, he received an information on his phone from Dadima
village that two persons have been shot bullet there, out of
which, one person has died and one was injured. He entered
Sanha No. 348/2012, dated 26- 08-2012 and proceeded for
Dadima village at about 22:40 o’ clock along with A.S.I. Mahadev
Dubey and armed forces. He reached to Dadima village at about
11:15 o’ clock where one person was found in serious injured
condition. On being interrogated, he was unable to reply clearly
and he could hardly say his name as Panchai Munduiya, S/o
Manai Munduiya, resident of village Hatnabera, P.S. Jhinkpani
from.
44. On being further interrogated, he has stated that Birendra
Munduiya has been also shot bullet and killed by his villagers
and they have thrown him in check dam of Dadima village.
45. This witness has further deposed that seeing the serious
condition of said person, he sent him to the Sadar Hospital along
with A.S.I. Mahadev Dubey. Thereafter, he reached to the check
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dam, situated in the forest and hillocks outside the village of
Dadima along with the armed forces and villagers and tried to
search the dead body of deceased in the light of torch but the
dead body could not be traced due to night. The A.S.I. Mahadev
Dubey got admitted the injured Panchai Munduiya in Sadar
Hospital and he returned from there. Thereafter, he returned to
Dadima O.P. along with armed forces.
46. On 27-08-2012 at about 7 o’ clock, he again proceeded for
village Dadima along with constable Anil Kumar and reached
there at 7.30 o'clock and along with the villagers, he went to the
check dam situated in the east to the village near the Gaurburu
hillock. He started search of the dead body of Birendra Munduiya
with the help of villagers and after making a sincere search, the
dead body of deceased was found in the western side of check
dam at about 9.40 o’ clock. He got the dead body out of pond
and examined his body. He found that a bullet was trapped
besides the left ear of deceased and there was an injury in the
back side of his head of the size 1.5 inch.
47. He prepared inquest report which was in his writing and
signature which bears the signature of Sadanand Purty and
Pratap Purty (Ext.3). He recovered two khokha of 7.6 MM from
the place of occurrence and seized it after preparing seizure list
which was in his writing and signature and bears the signature of
Sadanand Purty and Pratap Purty also (Ext.4).
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48. This witness has further deposed that villagers told him
that in the left side of kachcha road of Dadima to Aangariya,
beneath the tamarind tree, two motorcycles are standing from
the night which may be either of the deceased or of the accused
of this case. He took both the motorcycle in his possession. The
brother of deceased identified the Yamaha Motorcycle No.
BR16S 5133 to be of the deceased Birendra Munduiya whereas
another Hero Honda Motorcycle No. JH-06A-2979 was duly
seized after preparing seizure list in his writing and signature
which bears signature of witnesses Sadanand Purty and Pratap
Purty also (Ext.5).
49. This witness has further deposed that the motorcycle of
deceased bearing No. BR16S-5133 was handed over to the
brother of deceased Lakhindra Munduiya on his request. The
constable No. 488 Surajdev Ray brought the fard beyan of
Panchai Munduiya from Sadar police station, Chaibasa, on the
basis of which, he has registered the instant case U/s 364, 302,
307/34 I.P.C. and Section 27 of Arms Act. He took the charge of
investigation of this case and he sent the fard beyan for entering
formal F.I.R. in Manjhari P.S.
50. This witness has identified the fardbeyan of informant
Panchai Munduiya in the writing and signature of A.S.I.
Mahendra Kumar and bearing the thumb impression of informant
Panchai Munduiya and has further deposed that the
endorsement on this fardbeyan is in his writing and signature
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and the second endorsement is in the writing and signature of
Binod Oraon (Ext.6).
51. This witness has further deposed that in course of
investigation, he had visited the place of occurrence and he has
disclosed the details and boundaries of the place of occurrence
also. This witness has further testified that he had recorded the
statement of witnesses Moyka Sirka on the place of occurrence
who had told him that he was going to his village from Tantnagar
by his motorcycle and when he came in between the village
Aangardiha and Dadima, he heard cry of someone from the side
of check dam situated near the Gaurburu hillock and after
hearing noise, several people of Dadima village also came there.
They went towards check dam and found a person in the way
going towards the village and crying. He was injured and there
was bleeding from his ear and nose. They brought him to
Dadima village and on being asked, the said person could hardly
tell his name as Panchai Munduiya and he further told that he is
resident of Hatnabera.
52. The said person also told that his co-villagers Vir Singh
Munduiya, Ghanshyam Munduiya, Vijay Mundaiya, Bakra
Munduiya, Vibhishan Roidas, Subedar Munduiya, Jagdish
Devgam, Govind Munduiya, Manoj Munduiya, Sura Munduiya
and the Bablu Munda of village Takhta Bazar Jodapokhar have
shot bullet to his brother Birendra Munduiya also. He had
informed about the incident on phone and seeing the serious
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condition of injured, he sent Pratap Purty for arranging vehicle, in
the meantime, he went there and he sent the injured to Sadar
hospital with government vehicle with the assistance of some
boys. Thereafter, he searched the dead body of Birendra
Munduiya in check dam but it could not be found on that day and
on 27-08- 2012 said dead body has been recovered and sent to
Sadar Hospital for postmortem after preparing inquest.
53. This witness has further deposed that he had recorded the
statement of witnesses Pratap Purty, Manai Munduiya and
Lakhindra Munduiya who supported the prosecution case. He
raided for arrest of accused persons but they were found
absconding from their houses.
54. This witness has given the details of the first place of
occurrence from where, the accused persons had taken the
deceased and injured on their Motorcycle to the second place of
occurrence and shot bullet to them and thrown them in check
dam and further he has also given the details of second place of
occurrence also.
55. This witness has further deposed that he had verified the
registration of motorcycle No. JH-06A-2979 which was found to
be registered in the name of Krishna Munduiya. The accused
persons Bakra Mundaiya @ Sidiu, Bir Singh Mundaiya @
Kebeya, Gobind Mundaiya had surrendered before the Court. He
obtained the postmortem report of deceased Birendra Mundaiya
and injury report of injured Panchai Munduiya from the Sadar
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Hospital, Chaibasa and MGM, Hospital. He had taken the
accused Bakra Mundaiya @ Sidiu in police remanded for 48
hours and interrogated him but he kept silence.
56. This witness has identified all the accused persons before
the Court and has further deposed that after finding the case true
he had submitted charge-sheet against the accuse persons 1.
Subedar Mundaiya @ Rokonda, 2. Sura @ Naresh Mundaiya
(showing them absconder) and the accused persons 3- Bir Singh
Mundaiya @ Lebeya, 4- Ghanshyam Mundaiya 5- Bakra
Mundaiya @ Sidiu 6- Vijay Mundaiya 7- Vibhishan Roidas
(Ravidash) 8- Manoj Mundaiya 9- Jagdish Devgam 10- Gobind
Mundaiya and 11- Bablu @ Diku Munda U/s 364, 302, 307/34
I.P.C. and 27 Arms Act.
57. Further, in his cross-examination, this witness has
deposed that the Tamarind tree, where the motorcycles were
standing, is about 300 yards east from Dadima village and the
place where motorcycle standing was visible to the people
passing from there. But the motorcycles were standing and
hence it could not be apprehended about any incident by seeing
the motorcycle. This witness has further said that the village of
deceased is situated at about a distance of 5-6 Km from the
place of occurrence and except the accused Bablu Munda, all
the accused persons are co-villagers of deceased and the house
of accused Bibhishan Raidas @ Jagdish is in front of the house
of deceased.
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58. This witness has further deposed that no incriminating
articles were recovered from the possession of accused persons.
He had not seized the blood stained cloth of deceased. This
witness has further denied from this suggestion of defense that
his investigation is defective.
59. P.W.9, Dr. Devi Prasad Hansda has deposed in his
examination-in-chief that on 27-08-2012, he was posted at Sadar
Hospital, Chaibasa as a Medical Officer. On the same day, at
about 1.30 P.M., a dead body of Birendra Mundiya @ Vikram
was brought and identified by police No.31 Amit Kumar and he
had conducted postmortem and found following anti-mortem
injuries:-
(a) Firearms entry wound on scalp right occipital reason
5.5 inch. Posterior to right ear. Size 3 cm. oval in shape with
burning and tattooing present. margin inverted.
(b) Firearm exit wound on scalp left temporal region ½
inch below left ear. Size 4 cm. inverted margin with profuse
blooding. Bullet trapped in exit wound. Bullet seized and handed
over to investigating Police Officer.
(c) Firearm fracturing skull bones and lacerating brain
matter during its passage.
Opinion:-
All the above-mentioned injuries are antimortem in nature
caused by firearm injury fired from within two feet distance.
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Cause of death: - Hemorrhage and shock due to above
mentioned injury.
Time since death: - Within 24 hours. (Rigor mortis present in all
four limbs). Further this witness has identified the postmortem
report in his handwriting and signature which has been marked
as Ext.8.
60. Further, in his cross-examination, this witness has
deposed that the rigor mortis remains in all the four limbs from
12- 24 hours. Thereafter, it started to disappear gradually. He
has mentioned in the postmortem report that firing was done
from a distance of 2 feet because he had found the burning and
tattooing on the injury of deceased.
61. This witness has further deposed that burning and
tattooing will cause if the firing is done from a distance of up to 2
feet. He has denied from this suggestion of defense that he has
not correctly stated about the burning and tattooing and his
postmortem report is defective.
62. After due appreciations of evidences, the learned trial
Court has found the charges proved beyond reasonable doubt
against these appellants and accordingly, they were convicted as
aforesaid, against which the instant appeal has been preferred.
63. This Court, in order to appreciate the submissions
advanced on behalf of the appellants with respect to the
culpability of the appellants in commission of crime under
Sections 302, 307 and 364 of the Indian Penal Code vis-à-vis the
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evidences adduced on behalf of the parties, deems it fit and
proper to refer certain judicial pronouncements in context of
contentions raised by the appellants.
64. The learned counsel has contended that the learned trial
Court, even in absence of corroboration of the testimony of
P.W.1 who is self- proclaimed sole injured eyewitness has
convicted the appellants which is bad in the eyes of law.
65. In the aforesaid context this Court thinks fit to discuss the
evidentiary value of the sole eyewitness.
66. It is settled proposition of law that the judgment of
conviction can be passed on the basis of the testimony of sole
eyewitness but the testimony of said witness should be
trustworthy and inspire confidence in the mind of the Court.
There is no legal impediment in convicting 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. In fact, it is not
the number, the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be weighed and
not counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy, or otherwise.
67. The law is well settled that the judgment of conviction can
be passed also on the basis of the testimony of sole witness but
the testimony of said witness should be trustworthy, as per the
judgment rendered by Hon'ble Apex Court in the case of Bipin
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Kumar Mondal v. State of W.B., (2010) 12 SCC 91, for ready
reference, paragraphs 30 to 34 of the said judgment are being
referred hereunder as :-
“30. Shri Bagga has also submitted that there was sole
testimony of Sujit Mondal, PW 1, and the rest i.e.
depositions of PW 2 to PW 8, could be treated merely as
hearsay. The same cannot be relied upon for conviction.
31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this
Court repelled a similar submission observing that: (SCC
p. 371, para 9) "9. ... 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 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." In fact, it is not the
number, the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be
weighed and not counted. The test is whether the
evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.
32. In Namdeo v. State of Maharashtra this Court
reiterated the similar view observing that it is the quality
and not the quantity of evidence which is necessary for
proving or disproving a fact. The legal system has laid
emphasis on value, weight and quality of evidence rather
than on quantity, multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to fully and
completely rely on a solitary witness and record
conviction. Conversely, it may acquit the accused in spite
of testimony of several witnesses if it is not satisfied about
the quality of evidence.
33. In Kunju v. State of T.N., a similar view has been
reiterated placing reliance on various earlier judgments of
this Court including Jagdish Prasad v. State of M.P. and
Vadivelu Thevar v. State of Madras.
34. Thus, in view of the above, the bald contention made
by Shri Bagga that no conviction can be recorded in case
32

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of a solitary eyewitness has no force and is negatived
accordingly."
68. Likewise, the Hon'ble Apex Court in the case of Kuriya
and another vs. State of Rajasthan, (2012) 10 SCC 433 has
held as under: -
" 33. ---The Court has stated the principle that, as
a general rule, the Court can and may act on the
testimony of a single eyewitness provided he is
wholly reliable and base the conviction on the
testimony of such sole eyewitness. There is no
legal impediment in convicting a person on the
sole testimony of a single witness."
69. The Hon'ble Apex Court in the case of Kalu @ Amit vs.
State of Haryana, (2012) 8 SCC 34 has held as under:-
"11. We find no infirmity in the judgment of the High Court
which has rightly affirmed the trial court's view. It is true
that the accused have managed to win over the
complainant PW 4 Karambir Yadav, but the evidence of
PW 5 Ram Chander Yadav bears out the prosecution
case. It is well settled that conviction can be based on the
evidence of a sole eyewitness if his evidence inspires
confidence. This witness has meticulously narrated the
incident and supported the prosecution case. We find him
to be a reliable witness."
70. Further, it is a settled law that ocular evidence of the victim
or the injured is considered as the best evidence. In the case
titled as " State of U.P. v. Naresh" (2011) 4 SCC 324 , the
Hon'ble Supreme Court has observed that: -
"27. The evidence of an injured witness must be given
due weightage being a stamped witness , thus, his
presence cannot be doubted. His statement is generally
considered to be very reliable and it is unlikely that he has
spared the actual assailant in order to falsely implicate
33

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someone else. The testimony of an injured witness has
its own relevancy and efficacy as he has
sustained injur ies at the time and place of occurrence and
this lends support to his testimony that he was present
during the occurrence. Thus, the testimony of
an injured witness is accorded a special status in law.
The witness would not like or want to let his actual
assailant go unpunished merely to implicate a third person
falsely for the commission of the offence. Thus,
the evidence of the injured witness should be relied
upon unless there are grounds for the rejection of
his evidence on the basis of major contradictions and
discrepancies therein. (Vide Jarnail Singh v. State of
Punjab [(2009) 9 SCC 719: (2010) 1 SCC (Cri) 107],
Balraje v. State of Maharashtra [(2010) 6 SCC 673 :
(2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of
M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262])."

71. In the case titled as " Balu Sudam Khalde Vs. State
of Maharashtra" MANU/SC/0328/2023, the Hon'ble
Supreme Court of India gave observation as to how the
testimony of an injured person is to be considered. The
relevant paragraph of the aforesaid judgment is being quoted
as under:
"26. When the evidence of an injured eye- witness is to
be appreciated, the under-noted legal principles
enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye- witness at the time
and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence , it
must be believed that an would not allow
injured witness
the real culprits to escape and falsely implicate the
Accused.
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(c)The evidence of injured witness hasgreater evide ntiar
y value and unless compelling reasons exist, their
statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted
on account of some embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness ,
then such contradiction, exaggeration or embellishment
should be discarded from the evidence of injured , but not
the whole evidence .
(f) The broad substratum of the prosecution version must
be taken into consideration and discrepancies which
normally creep due to loss of memory with passage of
time should be discarded.”
72. The Hon’ble Apex Court, while relying upon the ratio
rendered in the case of Balu Sudam Khalde v. State of
Maharashtra(supra) has reiterated the same view in the case of
Baljinder Singh v. State of Punjab, 2024 SCC OnLine SC
2622 and has observed that the sworn testimonies provided by
injured witnesses generally carry significant evidentiary weight.
Such testimonies cannot be dismissed as unreliable unless there
are pellucid and substantial discrepancies or contradictions that
undermine their credibility. If there is any exaggeration in the
deposition that is immaterial to the case, such exaggeration
should be disregarded; however, it does not warrant the rejection
of the entire evidence.
73. The Hon’ble Apex Court in the case of Rajan v. State of
Haryana, 2025 SCC OnLine SC 1952 has observed that Unless,
it is otherwise established by the evidence, it must be believed
that an injured witness would not allow the real culprits to escape
35

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and falsely implicate the accused and further if there be any
exaggeration or immaterial embellishments in the evidence of an
injured witness, then such contradiction, exaggeration or
embellishment should be discarded from the evidence of injured,
but not the whole evidence, for ready reference, the relevant
paragraphs of the aforesaid order are being quoted herein, which
reads as under:
“33.When the evidence of an injured eye-witness is to be
appreciated, the undernoted legal principles enunciated by
the Courts are required to be kept in mind:
“(a) The presence of an injured eye-witness at the time
and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it
must be believed that an injured witness would not allow
the real culprits to escape and falsely implicate the
accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reasons exist, their
statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness, then
such contradiction, exaggeration or embellishment should
be discarded from the evidence of injured, but not the
whole evidence.
(f) The broad substratum of the prosecution version must
be taken into consideration and discrepancies which
normally creep due to loss of memory with passage of
time should be discarded.”
74. Thus, from the aforesaid, it is evident that the testimony of
an injured solitary eyewitness holds high evidentiary value, often
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acting as the sole basis for conviction due to a "built-in
guarantee" of their presence at the crime scene and such
evidence cannot be easily discarded.
75. Thus, in assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their presence
at the scene of occurrence or in such situations as would make it
possible for them to witness the facts deposed to by them and
secondly, whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these
considerations, circumstances either elicited from
those witnesses themselves or established by
other evidence tending to improbabilise their presence or to
discredit the veracity of their statements, will have a bearing
upon the value which a Court would attach to their evidence.
Although in cases where the plea of the Accused is a mere
denial, the evidence of the prosecution witnesses has to be
examined on its own merits, where the Accused raise a definite
plea or put forward a positive case which is inconsistent with that
of the prosecution, the nature of such plea or case and the
probabilities in respect of it will also have to be taken into
account while assessing the value of the prosecution evidence.
76. The learned counsel for the appellants has further
contended that since no independent witness has been
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examined on behalf of prosecution, therefore the veracity of
testimony of sole eyewitness is not fit to be accepted.
77. In the aforesaid context, it needs to refer herein the settled
position of law that the examination of independent witnesses is
not an indispensable requisite if the testimonies of other
witnesses are deemed trustworthy and reliable. The non-
examination of any independent witness by the prosecution will
not, by itself, go to the root of the matter so as to affect the
decision of the Court, unless the testimonies of other witnesses
and the evidences brought on record are found scant or
insufficient to establish the guilt of the accused. Reference may
be made to paragraph-24 of the judgment rendered by the
Hon’ble Apex Court in the case of Guru Dutt Pathak vs. State
of U.P (2021) 6 SCC 116, wherein, it has been observed that the
credibility of the prosecution case rests upon the reliability of the
witnesses examined, and not merely upon the presence or
absence of independent witnesses. The relevant paragraphs of
the aforesaid judgment are being quoted herein:
“24. One another ground given by the learned trial court
while acquitting the accused was that no independent
witness has been examined. The High Court has rightly
observed that where there is clinching evidence of
eyewitnesses, mere nonexamination of some of the
witnesses/independent witnesses and/or in absence
of examination of any independent witnesses would
not be fatal to the case of the prosecution.
24.1. In Manjit Singh vs. State of Punjab, it is observed
and held by this Court that reliable evidence of injured
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eyewitnesses cannot be discarded merely for reason
that no independent witness was examined.
24.2. In the recent decision in Surinder Kumar vs. State of
Punjab, it is observed and held by this Court that merely
because prosecution did not examine any independent
witness, would not necessarily lead to conclusion that the
accused was falsely implicated.
24.3. In Rizwan Khan vs. State of Chhattisgarh, after
referring to the decision of this Court in State of H.P. vs.
Pardeep Kumar it is observed and held by this Court that
the examination of the independent witnesses is not an
indispensable requirement and such non-examination is
not necessarily fatal to the prosecution case.”
(emphasis supplied)
78. In the case of Baljinder Singh @ Ladoo and Others Vs.
State of Punjab 2024 INSC 738 , the Hon’ble Apex Court has
observed that the prosecution's case cannot be dismissed solely
on the ground of the absence of independent witness if other
cogent and reliable evidences are available on record, for ready
reference, the relevant paragraph of the aforesaid judgment is
being quoted as under:
“30. It has been rightly pointed out by the Trial Court that
the prosecution’s case is not that people from the
surrounding locality gathered at the time of the incident. In
the light of the aforenoted decisions of this Court and upon
careful examination of the testimonies of P.W.3, P.W.4,
and P.W.5, along with the relevant other evidence on
record, the prosecution's case cannot be dismissed solely
on the ground of the absence of independent witness.”
79. Thus, it is settled connotation of law that where there is
clinching evidence of eyewitnesses, mere nonexamination of
some of the witnesses/independent witnesses and/or in absence
of examination of any independent witnesses would not be fatal
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to the case of the prosecution. It has further been observed that
reliable evidence of injured eyewitnesses cannot be discarded
merely for reason that no independent witness was examined.
80. The learned counsel for the appellant has further raised
the issue of contradiction between the ocular and medical
evidence, by submitting that the version of P.W.-1, the informant
and injured eyewitness, has not been substantiated by the
medical testimony insofar as the allegation of number of bullets
being fired upon the deceased is concerned.
81. In the aforesaid context, it requires to refer herein the
settled proposition of law that if there is a variance in ocular
evidence and medical evidence, then, the ocular evidence has to
be given preference over medical evidence, unless and until, the
medical evidence completely rules out the ocular evidence.
82. The Hon'ble Supreme Court in the case of Bhajan Singh
v. State of Haryana , reported in (2011) 7 SCC 421 has held as
under:
“38. Thus, the position of law in such a case of
contradiction between medical and ocular evidence can be
crystallised to the effect that though the ocular testimony
of a witness has greater evidentiary value vis-à-vis
medical evidence, when medical evidence makes the
ocular testimony improbable, that becomes a relevant
factor in the process of the evaluation of evidence.
However, where the medical evidence goes so far that it
completely rules out all possibility of the ocular evidence
being true, the ocular evidence may be disbelieved.”
83. In the case of CBI v. Mohd. Parvez Abdul Kayuum,
(2019) 12 SCC 1 , the Hon'ble Apex Court has reiterated the
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same view, for ready reference, the relevant paragraphs of the
aforesaid order are being quoted as under:
"…. ….. The witness is not supposed to give all these
minute details. It is not a case where medical evidence
completely improbabilises the ocular evidence; only in that
case the ocular evidence has to be discarded, not
otherwise. Reliance has been placed on behalf of the
accused on Abdul Sayeed v. State of M.P. [Abdul Sayeed
v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri)
1262] thus: (SCC p. 274, para 39)
"39. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular
evidence can be crystallised to the effect that though the
ocular testimony of a witness has greater evidentiary value
vis-à-vis medical evidence, when medical evidence makes
the ocular testimony improbable, that becomes a relevant
factor in the process of the evaluation of evidence.
However, where the medical evidence goes so far that it
completely rules out all possibility of the ocular evidence
being true, the ocular evidence may be disbelieved."
65. Even otherwise as submitted on behalf of the
prosecution that in case of any discrepancy between the
ocular or medical evidence, the ocular evidence shall
prevail, as observed in Yogesh Singh v. Mahabeer Singh
[Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 :
(2017) 4 SCC (Cri) 257] : (SCC pp. 217-18, para 43) “43.
The learned counsel appearing for the respondents has
then tried to create a dent in the prosecution story by
pointing out inconsistencies between the ocular evidence
and the medical evidence. However, we are not
persuaded with this submission since both the courts
below have categorically ruled that the medical evidence
was consistent with the ocular evidence and we can safely
say that to that extent, it corroborated the direct evidence
proffered by the eyewitnesses. We hold that there is no
material discrepancy in the medical and ocular evidence
and there is no reason to interfere with the judgments
[Mahabeer Singh v. State of U.P., 2012 SCC OnLine All
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4428] of the courts below on this ground. In any event, it
has been consistently held by this Court that the
evidentiary value of medical evidence is only corroborative
and not conclusive and, hence, in case of a conflict
between oral evidence and medical evidence, the former
is to be preferred unless the medical evidence completely
rules out the oral evidence. [See Solanki Chimanbhai
Ukabhai v. State of Gujarat [Solanki Chimanbhai Ukabhai
v. State of Gujarat, (1983) 2 SCC 174 : 1983 SCC (Cri)
379] , Mani Ram v. State of Rajasthan [Mani Ram v. State
of Rajasthan, 1993 Supp (3) SCC 18 : 1993 SCC (Cri)
853] , State of U.P. v. Krishna Gopal [State of U.P. v.
Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928] ,
State of Haryana v. Bhagirath [State of Haryana v.
Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658] ,
Dhirajbhai Gorakhbhai Nayak v. State of Gujarat
[Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9
SCC 322 : 2003 SCC (Cri) 1809] , Thaman Kumar v. State
(UT of Chandigarh) [Thaman Kumar v. State (UT of
Chandigarh), (2003) 6 SCC 380 : 2003 SCC (Cri) 1362] ,
Krishnan v. State [Krishnan v. State, (2003) 7 SCC 56 :
2003 SCC (Cri) 1577] , Khambam Raja Reddy v. Public
Prosecutor [Khambam Raja Reddy v. Public Prosecutor,
(2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] , State of
U.P. v. Dinesh [State of U.P. v. Dinesh, (2009) 11 SCC
566 : (2009) 3 SCC (Cri) 1484] , State of U.P. v. Hari
Chand [State of U.P. v. Hari Chand, (2009) 13 SCC 542 :
(2010) 1 SCC (Cri) 1112] , Abdul Sayeed v. State of M.P.
[Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 :
(2010) 3 SCC (Cri) 1262] and Bhajan Singh v. State of
Haryana [Bhajan Singh v. State of Haryana, (2011) 7 SCC
421 : (2011) 3 SCC (Cri) 241 : (2011) 7 SCR 1] .]”
66. The ocular evidence to prevail has also been observed
in Sunil Kundu v. State of Jharkhand [Sunil Kundu v. State
of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427]
thus: (SCC p. 432, para 24)
24. In Kapildeo Mandal v. State of Bihar [Kapildeo Mandal
v. State of Bihar, (2008) 16 SCC 99 : (2010) 4 SCC (Cri)
203] , all the eyewitnesses had categorically stated that
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the deceased was injured by the use of firearm, whereas
the medical evidence specifically indicated that no firearm
injury was found on the deceased. This Court held that
while appreciating variance between medical evidence
and ocular evidence, oral evidence of eyewitnesses has to
get priority as medical evidence is basically opinionative.
But, when the evidence of the eyewitnesses is totally
inconsistent with the evidence given by the medical
experts then evidence is appreciated in a different
perspective by the courts. It was observed that when
medical evidence specifically rules out the injury claimed
to have been inflicted as per the eyewitnesses' version,
then the court can draw adverse inference that the
prosecution version is not trustworthy. This judgment is
clearly attracted to the present case.”
67. Similarly, in Bastiram v. State of Rajasthan [Bastiram
v. State of Rajasthan, (2014) 5 SCC 398 : (2014) 2 SCC
(Cri) 608] , it was observed: (SCC pp. 407 & 408, paras 33
& 36)
“33. The question before us, therefore, is whether the
“medical evidence” should be believed or whether the
testimony of the eyewitnesses should be preferred? There
is no doubt that ocular evidence should be accepted
unless it is completely negated by the medical evidence.
This principle has more recently been accepted in
Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani
v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6
SCC (Cri) 182] .
36. Similarly, a fact stated by a doctor in a post-mortem
report could be rejected by a court relying on eyewitness
testimony, though this would be quite infrequent. In Dayal
Singh v. State of Uttaranchal [Dayal Singh v. State of
Uttaranchal, (2012) 8 SCC 263 : (2012) 4 SCC (Civ) 424 :
(2012) 3 SCC (Cri) 838 : (2012) 2 SCC (L&S) 583] , the
post-mortem report and the oral testimony of the doctor
who conducted that examination was that no internal or
external injuries were found on the body of the deceased.
This Court rejected the “medical evidence” and upheld the
view of the trial court (and the High Court) that the
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testimony of the eyewitnesses supported by other
evidence would prevail over the post-mortem report and
testimony of the doctor. --
84. Thus, from the aforesaid settled position of law, it is
evident that in any event, unless the oral evidence is totally
irreconcilable with the medical evidence, it has primacy and
when it comes to Ocular Evidence and Medical Evidence being
inconsistent with each other, the settled law is that the ocular
evidence must be given primacy, unless medical evidence
completely overrules the ocular evidence.
85. Further, the learned counsel for the appellants has
contended that there are vital contradiction and omission in the
testimony of the P.W.1, informant (Eyewitness) as after alleged
occurrence, the names of the accused/appellants were not
disclosed by the informant, namely, Pachay Munduiya (P.W.1) at
the first time to the villagers of the village Dadima and the name
of the accused persons has been taken by the informant for the
first time in the hospital in his fardbeyan for falsely implicating the
accused.
86. In the aforesaid context, it needs to refer herein that Minor
omissions, discrepancies, or improvements in testimony, do not
affect the core of the prosecution's case, which cannot be
considered fatal to the prosecution's story and or trivial
inconsistencies arising from human memory lapses or time gaps
are not sufficient to discredit witnesses or destroy the entire
Further,
case. different witnesses have different capacity to grasp
the scene of offence and to respond in court when cross-
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examined by the defense counsel at a length in a heated
atmosphere.
87. Further, the Hon'ble Apex Court in the case of Mukesh
Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC 694,
at paragraph-8, has held as under:
"8. While the slight difference in the initial version of the
prosecution and the FIR version has been reasonably
explained by the cross-examination of PW 6, it is our
considered view that minor discrepancies, embellishments
and contradictions in the evidence of the eyewitnesses do
not destroy the essential fabric of the prosecution case,
the core of which remains unaffected. Even if we have to
assume that there are certain unnatural features in the
evidence of the eyewitnesses the same can be reasonably
explained on an accepted proposition of law that different
persons would react to the same situation in different
manner and there can be no uniform or accepted code of
conduct to judge the correctness of the conduct of the
prosecution witnesses i.e. PWs 1 and 2. The relation
between PWs 5 and 6 and PWs 1 and 2 and the
deceased, in our considered view, by itself, would not
discredit the testimony of the said witnesses. There is
nothing in the evidence of PWs 1 and 2 which makes their
version unworthy of acceptance and their testimony
remains unshaken in the elaborate cross- examination
undertaken."
88. Thus, from the aforesaid proposition of law, it is evident
that minor discrepancies, embellishments and contradictions in
the evidence of the eyewitness do not destroy the essential
fabric of the prosecution case, the core of which remains
unaffected. But at the same time, it is equally settled that
the discrepancies which go to the root of the matter and shake
the basic version of the witnesses that can be annexed with due
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importance. More so when there is need of corroboration of the
testimony of eyewitness from other available evidences,
reference in this regard be made to the judgment rendered by
the Hon'ble Apex Court in the case of S. Govindaraju v. State
of Karnataka, (2013) 15 SCC 315.
89. The learned Counsel for the appellants has further
contended that the conviction cannot rests solely on the
testimony of a single witness if it lacks credibility, consistency
and corroboration, particularly, investigation lapses and in the
present case also, the investigation is not proper one as the
investigating officer did not prepare any site plan of the place of
occurrence and neither collected blood stain nor any weapon of
offence has been seized or any witness near the place of
occurrence at the time of incident has been interrogated.
90. In the aforesaid context, it needs to refer herein that if the
prosecution able to prove the charge beyond all reasonable
doubt based upon the cogent testimony of the injured
eyewitness, then, some lacuna in the investigation will not vitiate
the prosecution case.
91. Further, the settled position of law is that even if the blood
stained earth or cloth is not seized due to inadequate amount or
not sent for its examination to Forensic Scientific Laboratory but
if the prosecution version is supported by the eye witness, the
non-sending of the same for its expert examination will not vitiate
the prosecution story, as has been held by Hon'ble Apex Court in
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the case Surendra Paswan v. State of Jharkhand, (2003) 12
SCC 360 . For ready reference, the relevant paragraph is being
quoted as under:
"9. So far as the non-seizure of blood from the cot is
concerned, the investigating officer has stated that he
found bloodstained earth at the place of occurrence and
had seized it. Merely because it was not sent for chemical
examination, it may be a defect in the investigation but
does not corrode the evidentiary value of the
eyewitnesses. The investigating officer did not find
presence of blood on the cot. The trial court and the High
Court have analysed this aspect. It has been found that
after receiving the bullet injury the deceased leaned
forward and whatever blood was profusing spilled over
onto the earth.”
92. Likewise, the Hon'ble Apex Court in the judgment rendered
in Sheo Shankar Singh v. State of Jharkhand and another,
(2011) 3 SCC 654 has held as under:
“56. The same view was expressed by this Court in
Surendra Paswan v. State of Jharkhand. In that case the
investigating officer had not sent the blood samples
collected from the spot for chemical examination. This
Court held that merely because the sample was not so
sent may constitute a deficiency in the investigation
but the same did not corrode the evidentiary value of
the eyewitnesses.”

93. The law is well settled that if the blood stained earth, and
murder weapon have not been seized, the entire prosecution will
not fail as has been held by the Hon'ble Apex Court in the case
of State of Rajasthan vs. Arjun Singh reported in 2011(9)
SCC 115 , wherein, at paragraph 18, it has been held as under:
"18. As rightly pointed out by the learned Additional
Advocate General appearing for the State that mere non-
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recovery of pistol or cartridge does not detract the case of
the prosecution where clinching and direct evidence is
acceptable. Likewise, absence of evidence regarding
recovery of used pillets, bloodstained clothes etc. cannot
be taken or construed as no such occurrence had taken
place. As a matter of fact, we have already pointed out
that the gunshot injuries tallied with medical evidence. It is
also seen that Raghuraj Singh and Himmat Raj Singh,
who had died, received 8 and 7 gunshot wounds
respectively while Raj Singh (PW 2) also received 8
gunshots scattered in front of left thigh. All these injuries
have been noted by the Doctor (PW-1) in his reports Exts.
P-1 to P-4."
94. Further, the Hon'ble Apex Court in the case of Ram Avtar
Rai vs. State of U.P reported in (1985) 2 SCC 61 , wherein, at
paragraph-10 it has been held, as under:
"10. ..... It is true that bloodstained earth has not been
recovered from the scene of occurrence by the
investigating officer though as stated earlier the deceased
had sustained as many as 5 lacerated injuries besides a
number of contusions and abrasions. From the failure of
the investigating officer to recover bloodstained earth from
the scene of occurrence it is not possible to infer that the
occurrence had not taken place in front of the house of the
deceased and PW 1. The evidence of PWs 2 and 3 could
not, therefore, be rejected as unreliable as has been done
by the learned Sessions Judge. ......"
95. Further, the Hon'ble Apex Court in the case of Maqbool &
Anr. vs. State of A.P ., reported in (2010) 8 SCC 359 wherein at
paragraph-20 it has been held, as under:
"20. Secondly, not only PW 2 but even other witnesses
have stated that there was sufficient light in and around
the place of occurrence because of streetlight, light from
the house of the deceased, bus-stand and the nursing
home. There is no reason for us to disbelieve PW 1, PW 3
and other witnesses who said that there was sufficient
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illumination at the place of occurrence and the argument
advanced by the appellants hardly has any merit. Yes, it
was expected of the investigating officer to seize from
the place of occurrence such articles or items
including the bloodstained earth or empties, which
were available even as per his statement. This lacuna
in the investigation stands completely covered by the
statement of the witness, the medical report and the
eyewitness version."
96. It is, thus, evident that the law is well settled that merely
because the perfunctory investigation, the prosecution case will
not vitiate if the prosecution version is being supported by the
credible testimony of the eyewitness.
97. It needs to refer herein that since the learned trial Court
while convicting the preset appellants has taken aid of the
Section 34 IPC, therefore it is considered view of this Court that
at this juncture, it would be apt to discuss the core of Section 34
of the IPC. Regarding the question of common intention, capable
of being formed within spur of the moments, profitable reference
may be made to paragraph-26 of the decision of the Hon’ble
Apex Court in Krishnamurthy alias Gunodu and Ors. vs. State
of Karnataka (2022) 7 SCC 521. Paragraph-26, being relevant,
is quoted hereunder:
“26. Section 34 IPC makes a co-perpetrator, who had
participated in the offence, equally liable on the principle of
joint liability. For Section 34 to apply there should be
common intention between the co-perpetrators, which
means that there should be community of purpose and
common design or prearranged plan. However, this does
not mean that co-perpetrators should have engaged in any
discussion, agreement or valuation. For Section 34 to
apply, it is not necessary that the plan should be
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prearranged or hatched for a considerable time before the
criminal act is performed. Common intention can be
formed just a minute before the actual act happens.
Common intention is necessarily a psychological fact as it
requires prior meeting of minds. In such cases, direct
evidence normally will not be available and in most cases,
whether or not there exists a common intention has to be
determined by drawing inference from the facts proved.
This requires an inquiry into the antecedents, conduct of
the co-participants or perpetrators at the time and after the
occurrence. The manner in which the accused arrived,
mounted the attack, nature and type of injuries inflicted,
the weapon used, conduct or acts of the co-
assailants/perpetrators, object and purpose behind the
occurrence or the attack, etc. are all relevant facts from
which inference has to be drawn to arrive at a conclusion
whether or not the ingredients of Section 34 IPC are
satisfied. We must remember that Section 34 IPC comes
into operation against the co-perpetrators because they
have not committed the principal or main act, which is
undertaken/performed or is attributed to the main culprit or
perpetrator. Where an accused is the main or final
perpetrator, resort to Section 34 IPC is not necessary as
the said perpetrator is himself individually liable for having
caused the injury/offence. A person is liable for his own
acts. Section 34 or the principle of common intention is
invoked to implicate and fasten joint liability on other co-
participants.”
(emphasis supplied)
98. Section 34, IPC underlines that when a criminal act is done
by two or more persons in furtherance of common intention,
each of them is liable for the act done as if it were done by him
alone.
99. This Court is of the considered view that there cannot be a
fixed timeframe for the formation of common intention. It is not
essential for the perpetrators to have convened prior meetings to
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conspire or to have made elaborate preparations for the crime.
The common intention to commit murder may arise even
moments before the commission of the act. Since common
intention is essentially a mental state of the perpetrators, it is
inherently difficult to substantiate by direct evidence. It must,
therefore, be inferred from the conduct of the accused
immediately before, during, and after the commission of the act.
100. The Hon’ble Apex Court in the case of Baljinder Singh @
Ladoo and Others Vs. State of Punjab (supra) has observed
that the determination of common intention or common object
should primarily be within the domain of the trial courts, and at
the most the high courts. It should not be the role of this Court to
directly adjudicate issues of common intention and common
object, for ready reference the relevant paragraph is being
quoted as under:
“21. Be that as it may, the determination of common
intention or common object should primarily be within the
domain of the trial courts, and at the most the high courts.
It should not be the role of this Court to directly adjudicate
issues of common intention and common object. This
Court has, in a catena of decisions, elaborated on the
differences between section 149 and section 34, IPC; the
overlapping nature of section 149 and section 34, IPC;
and when can the offence under section 302 read with
section 149, IPC be changed to section 302 read with
section 34, IPC. Such decisions do provide suitable
guidance for the lower courts to draw from, to reach their
conclusions.”
101. In the case of Chittarmal vs. State of Rajasthan (2003) 2
SCC 266 , the Hon’ble Apex Court has observed that the non-
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applicability of Section 149 is, therefore, no bar in convicting the
appellants under Section 302 read with Section 34 IPC, if the
evidence discloses commission of an offence in furtherance of
the common intention of them all, for ready reference, the
relevant paragraph is being quoted as under:
“14. It is well settled by a catena of decisions that Section
34 as well as Section 149 deal with liability for constructive
criminality i.e. vicarious liability of a person for acts of
others. Both the sections deal with combinations of
persons who become punishable as sharers in an offence.
Thus, they have a certain resemblance and may to some
extent overlap. But a clear distinction is made out between
common intention and common object in that common
intention denotes action concert and necessarily
postulates the existence of a prearranged plan implying a
prior meeting of the minds, while common object does not
necessarily require proof of prior meeting of minds or
preconcert. Though there is a substantial difference
between the two sections, they also to some extent
overlap and it is a question to be determined on the facts
of each case whether the charge under Section 149
overlaps the ground covered by Section 34. Thus, if
several persons numbering five or more, do an act and
intend to do it, both Section 34 and Section 149 may
apply. If the common object does not necessarily involve a
common intention, then the substitution of Section 34 for
Section 149 might result in prejudice to the accused and
ought not, therefore, to be permitted. But if it does involve
a common intention then the substitution of Section 34 for
Section 149 must be held to be a formal matter. Whether
such recourse can be had or not must depend on the facts
of each case. The non-applicability of Section 149 is,
therefore, no bar in convicting the appellants under
Section 302 read with Section 34 IPC, if the evidence
discloses commission of an offence in furtherance of the
common intention of them all. [See Barendra Kumar
Ghosh v. King Emperor, AIR 1925 PC 1, Mannam
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Venkatadari v. State of A.P., (1971) 3 SCC 254, Nethala
Pothuraju v. State of Α.Ρ., (1992) 1 SCC 49, Ram Tahal v.
State of U.P., (1972) 1 SCC 136].”
(emphasis supplied)
102. The learned counsel has emphatically contended that no
any independent person in the near vicinity of the alleged
occurrence has been examined by the prosecution, therefore,
the prosecution story lacks credibility.
103. In the aforesaid context, it needs to refer herein that the
Hon'ble Apex Court in case of Sheelam Ramesh v. State of
A.P., (1999) 8 SCC 369 in Para -18 has categorically held that
even if other persons present nearby were not examined, the
evidence of the eyewitnesses cannot be discarded. Courts are
concerned with quality and not with quantity of evidence. For
ready reference, the relevant paragraph is being quoted as
under:
"18. According to learned counsel for the accused
appellants, though PW 3 has deposed that 10-15 persons
were in the vicinity at the time of occurrence, no
independent witness was examined by the prosecution.
There is nothing on evidence to show that there was any
other eyewitness to the occurrence. Having examined all
the eyewitnesses even if other persons present
nearby were not examined, the evidence of the
eyewitnesses cannot be discarded. Courts are
concerned with quality and not with quantity of evidence
and in a criminal trial, conviction can be based on the sole
evidence of a witness if it inspires confidence."
104. In the backdrop of the aforesaid discussions on the
proposition of law as well as the factual aspects of the instant
case, this Court is required to consider the following issues:—
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(i) Whether the material as has come in course of trial is
sufficient to attract the offence committed under Section
302/307/364 read with 34 of the Indian Penal Code against
the present appellants?
(ii) Whether the only sole testimony of an injured eyewitness is
sufficient enough to prove the alleged charges against the
appellants beyond all reasonable doubt.
(iii) Whether the testimony of the sole injured eyewitness can
be discarded on the basis of perfunctory investigation like
non sending of blood stain cartridge or non-seizure of the
blood stain from the place of occurrence.
(iv) Whether the variation between the medical and ocular
evidence is sufficient enough to dismiss the prosecution
case that too then the said alleged occurrence was
witnessed by the sole injured eye-witness.
105. Since all the aforesaid issues are inextricably interlinked,
therefore, the same are being decided hereinbelow by
considering them together.
106. On a careful scrutiny of the aforesaid oral testimony of the
prosecution witnesses, this Court finds that the prosecution case
rests substantially upon the ocular account of P.W.-1, Panchai
Mundaiya, who himself is a victim and an eyewitness to the
incident. It is established that P.W.-1 was taken to the place of
occurrence by the accused persons along with the deceased,
and that gunshot injuries were inflicted upon him from close
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range. He has categorically deposed that he witnessed the entire
incident unfold. In his examination-in-chief, particularly in
paragraphs-4 and 5, P.W.-1 has narrated the sequence of
events with specificity, thereby lending direct support to the
prosecution version. He has categorically deposed in para 4 and
5 of the testimony that the Bir Singh @ Leviya Munduiya,
Jagdish Devgam, Ghanshyam Munduiya, GovindMunduiya, Vijay
Munduiya, Vibhishan Ravidas, Tela, Manoj Munduiya, Bakra
Munduiya, Subedar Singh Munduiya, Naresh Munduiya and
Babu Munda restrained him in the way and the Bakra Munduiya
told him that you have done some pooja, due to which, our mind
is disturbed. The Ghanshyam Munduiya got him sat on his
motorcycle and the Birendra Munduiya and Vijay Munduiya were
on another motorcycle. They took him in the Darima village on
the check dam near the forest and they made the Birendra
Munduiya (deceased) and this witness to sat on a stone. The
Bakra Munduiya asked from him that what type of pooja you
have done? Thereafter, the Bakra Munduiya shot three bullets
from a pistol on the “Kanpatti” (Templed) of Birendra Munduiya
and the accused Bibhishan Raidas shot two bullets on the
“Kanpatti” of this witness.
107. Furthermore, P.W.-1 has duly identified all the accused
persons before the Court and has distinctly disclosed the specific
role played by each of them in the commission of the offence.
His testimony has remained consistent on these material aspects
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even during cross-examination. In paragraph 19 thereof, he has
categorically stated that when the accused persons restrained
him on the way, no other person was present at that time, and he
was forcibly made to sit upon the motorcycle by them.
108. Thus, upon due consideration, this Court finds that P.W.-1,
Panchai Munuiya, had ample opportunity to observe all the
accused persons during the incident. The fact that he himself
sustained gunshot injuries on vital parts of his body ( kanpatti )
fortifies his presence at the place of occurrence at the relevant
time. In view of the consistency of his testimony and the
corroborative circumstances, there appears no reason to
disbelieve the oral testimony of this witness.
109. The statement of P.W.-1 further stands corroborated by the
oral testimony of P.W.-8, Parasuram Paswan, the Investigating
Officer of the case. He has deposed before the Court that on
26-08-2012, at about 10:30 a.m., he received information
regarding the incident on his mobile phone, and thereafter, upon
reaching Darima village at about 11:15 a.m., he found the
informant in an injured condition. The Investigating Officer has
categorically stated that the condition of the injured was very
serious and he was unable to suitably reply at that time. P.W.-8
has further deposed with specificity that upon interrogation, the
injured informant could scarcely utter his name and address
owing to his grave condition.
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110. The aforesaid statement of P.W.-1, Panchai Munduiya,
stands fully corroborated by the medical evidence on record.
P.W.-1 has categorically deposed that accused Bakra Munduiya
fired three bullets at the kanpatti (temple region) of the deceased
Birendra Munduiya. The post-mortem report of the deceased
(Exhibit-8) substantiates this account, recording firearm injuries
over the skull of the deceased.
111. The doctor who conducted the post-mortem has opined
that the injuries were antemortem in nature and were caused by
shots fired from a distance of within two feet.
112. It has further been recorded in the post-mortem report that
one bullet was found lodged in the exit wound, which was duly
removed and handed over to the Investigating Officer. In
addition, the Investigating Officer seized two fired cartridges
(khokha) from the place of occurrence. Taken together, these
circumstances clearly establish that P.W.-1, Panchai Munduiya,
is an eyewitness to the incident. These facts also reinforce the
correctness of testimony of P.W.1 regarding the details of the
occurrence and the distinct role played by each of the accused in
committing the offence.
113. The statement of P.W.-1, Panchai Munduiya, regarding the
firing of two bullets at his kanpatti by accused Vibhishan, finds
corroboration in the medical testimony of P.W.-4, Dr. Mahabir
Prasad Gopalika. The doctor, upon examining the informant and
injured P.W.-1, noted two round hole injuries measuring 5 mm
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and 3 mm respectively, having dark and brown colour ring round
the injuries and felt hard mobile small body over the left side of
nose near medial canthus of left eye and at sub mental area
below chin of the Panchay Munduiya (P.W.1).
114. P.W.-4, Dr. Mahabir Prasad Gopalika, has further deposed
that the injured patient was referred to M.G.M. Medical College
and Hospital, Jamshedpur, for better treatment. The discharge
report issued from the said hospital (Exhibit-2) clearly records
that gunshot injuries were found on the person, P.W.-1, Panchai
Munduiya, the informant, and a bullet was removed.
115. The resemblance between the injuries found on the dead
body of the deceased and those sustained by the informant,
P.W.-1, Pachay Munduiya, fully corroborates the testimony of
P.W.1. It conclusively establishes that P.W.-1 was present at the
place of occurrence, who himself is a victim of the incident and
he personally witnessed the accused persons committing the
offence. In light of such corroboration, there appears no reason
to disbelieve or discard the oral testimony of this witness.
116. Insofar as the non-disclosure of the names of the accused
persons to the police by the informant on the night of the
occurrence, and the alleged delay in recording the fardbeyan, is
concerned, this Court finds that P.W.-8, Parsuram Paswan, the
Investigating Officer, has stated in his examination-in-chief that
upon receiving information about the incident, when he reached
village Darima at about 11:15 p.m., he found one person (P.W.1)
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in an injured condition who was extremely serious and the said
person was not in position to speak. For ready reference, the
said part of testimony of P.W.8, is being quoted herein which
reads as under:
“1. दिन ांक 26.08.2012 को मैं त ांतनगर ओ०पी प्रभ री के रूप में
पि स्थ दपत थ । उस दिन र दि 22:30 बजे मोब ईल फोन पर ग्र म
ि द़िम से सूचन दमली दक यह ां िो व्यक्तियोां क गोली म र िी है।
दजसमें एक व्यक्ति की मृत्यु हो गयी है तथ एक घ यल है। इस सूचन
क सनह सांख्य 348/12 दिन ांक 26.08.2012 िज दकय तथ सूचन
के आवश्यक करजव ई हेतु स०अ०दन मह िेव िुबे , एवां सशस्त्र बल के
ग्र म ि द़िम के दलए 22:40 बजे प्रस्थ न दकय । र दि करीब 11:15
बजे ग्र म ि द़िम पहांच । जह ां एक व्यक्ति क क फी गम्भीर क्तस्थदत में
जख्मी प य । उसे पूछत छ करने पर वह स्पष्ट जब ब िेने में असमथज
थ । 1. दिन ांक 26.08.2012 को मैं त ांतनगर ओ०पी प्रभ री के रूप में
पि स्थ दपत थ । उस दिन र दि 22:30 बजे मोब ईल फोन पर ग्र म
ि द़िम से सूचन दमली दक यह ां िो व्यक्तियोां क गोली म र िी है।
दजसमें एक व्यक्ति की मृत्यु हो गयी है तथ एक घ यल है। इस सूचन
क सनह सांख्य 348/12 दिन ांक 26.08.2012 िज दकय तथ सूचन
के आवश्यक करजव ई हेतु स०अ०दन मह िेव िुबे, एवां सशस्त्र बल के
ग्र म ि द़िम के दलए 22:40 बजे प्रस्थ न दकय । रात्रि करीब 11:15
बजे ग्राम दात्ऱिमा पहुंचा। जहाुं एक व्यक्ति का काफी गम्भीर
क्तित्रि में जख्मी पाया। उसे पूछिाछ करने पर वह स्पष्ट जबाब
देने में असमर्थ र्ा।----“
117. Thus, having regard to the statement of P.W.-8 as well as
the injury report and discharge report of the informant (Exhibits-1
and 2 respectively), this Court finds that it cannot reasonably be
expected of a person who has sustained such grievous injuries
to immediately furnish a detailed fardbeyan to the police
narrating the entire incident.
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118. In such circumstances, the foremost priority of any
prudent person would naturally be the preservation of life. The
aforesaid fact stands corroborated by the medical records of the
informant. The mental state and physical condition of the
informant after sustaining such injuries and facing such an
occurrence can readily be imagined.
119. It is evident that as soon as the informant regained the
ability to speak, his fardbeyan was recorded in the hospital.
Accordingly, there is nothing unnatural in this regard, and the
alleged delay in recording the fardbeyan has been satisfactorily
explained. The same, therefore, has no fatal impact upon the
prosecution case.
120. It has been contended by the learned counsel for the
appellants that no independent witness has been examined by
the prosecution and that the informant has falsely implicated the
accused persons owing to previous enmity. It is urged that, in
such circumstances, the sole testimony of the informant cannot
form the basis for conviction of the appellants.
121. In the aforesaid context, it is pertinent to observe that the
alleged incident occurred at a secluded place near the dam,
situated within the forest area and was executed in a planned
manner after the deceased and the informant were taken there
at such late hours of the night. In these circumstances, it is quite
natural that no independent witness would be available at the
scene of occurrence.
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122. Furthermore, the presence of the informant at the place of
occurrence and the fact of his sustaining serious gunshot injuries
on the vital part of his body (kanpatti) stand firmly established by
both ocular and medical evidence.
123. It has also come on record through the testimony of
P.W.-8, Investigating Officer Parasuram Paswan, that it was the
informant who first disclosed that the accused persons had shot
Birendra Munduiya and had thrown his body into the pond, from
which the dead body was subsequently recovered. The
discharge report (Exhibit-2) further confirms that a bullet was
surgically removed from the informant’s injury. In these
circumstances, it is neither possible nor conceivable that such
injuries could have been self-inflicted merely to falsely implicate
the accused. The very fact of the informant sustaining gunshot
injuries is itself indicative that he is both an eyewitness and a
victim of the incident, and there appears no reason to suspect or
disbelieve his testimony.
124. Furthermore, it needs to refer herein that examination of
independent witnesses is not an indispensable requisite if the
testimonies of other witnesses are deemed trustworthy and
reliable. Reference in this regard be made to the judgment
rendered by the Hon’ble Apex Court in the case of Guru Dutt
Pathak vs. State of U.P (supra) , ratio of the said case has
already been discussed and mentioned in the preceding
paragraphs.
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125. Further, the learned counsel for the appellants has sought
to assail the testimony of the sole injured eyewitness, P.W.-1, by
relying upon the post-mortem report, wherein it has been noted
that Firearms entry wound on scalp right occipital reason. 5.5
inch. Posterior to right ear. Size 3 cm. oval in shape with burning
and tattooing present.
126. It has further been noted that Firearm exit wound on scalp
left temporal region ½ inch below left ear. Size 4 cm. inverted
margin with profuse blooding. Bullet trapped in exit wound. Bullet
seized and handed over to investigating Police Officer.
127. On the strength of this medical opinion, it has been
contended that P.W.-1 has categorically stated that three firearm
shots were fired upon the scalp of the deceased by the accused,
but such assertion has not been substantiated by medical
evidence. It is, therefore, argued that the entire foundation of the
prosecution case stands vitiated.
128. It needs to refer herein that this witness (P.W.1) is an
injured sole eyewitness and as per the settled position of law the
testimony of an injured solitary eyewitness holds high evidentiary
value, often acting as the sole basis for conviction due to a "built-
in guarantee" of their presence at the crime scene. Such
evidence is not easily discarded unless major irreconcilable
contradictions exist, as they are unlikely to implicate false
perpetrators. The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist, their
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statements are not to be discarded lightly, reference in this
regard be made to the judgment rendered by the Hon’ble Apex
Court in the case of Balu Sudam Khalde v. State of
Maharashtra (Supra).
129. Admittedly, the injuries found by P.W.-9 do not fully
conform to the number of firearm shots as stated by P.W.-1. The
question, therefore, arises as to whether such inconsistency is
vital enough to discard the entire evidence of the sole injured
eyewitness.
130. It is a settled proposition of law that in the event of
variance between ocular and medical evidence, the ocular
testimony must ordinarily be accorded primacy, unless the
medical evidence completely rules out the ocular version. This
principle has elaborately been discussed in the preceding
paragraphs.
131. So far as the variation between ocular and medical
evidence is concerned, it is evident from the post-mortem report
(Exhibit-8) that the deceased died of firearm injuries. The record
further shows that the post-mortem examination was conducted
within hours of the occurrence, as reflected in Exhibit-8.
Moreover, from the medical examination of the informant and the
discharge slip (Exhibit-2), it stands established that the informant
also sustained firearm injuries, which is corroborated by the
injury report (Exhibit-1) and the discharge slip (Exhibit-2). Thus,
the testimony of the sole injured eyewitness, P.W.-1, on the
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material point that the deceased died due to firearm injuries, has
been fully substantiated by the medical evidence.
132. We are conscious with the settled position of law as
discussed and referred in the preceding paragraphs that in cases
where medical evidence completely overrules and makes the
ocular evidence completely improbable, the evidence must be
considered by the Court in that light and the ocular evidence may
be disbelieved but herein, the testimony of P.W.1 injured
eyewitness having no material discrepancy.
133. P.W.-8, Parsuram Paswan, the Investigating Officer, has
deposed in his examination-in-chief that upon receiving
information about the incident, when he reached village Darima
at about 11:15 p.m., he found P.W.-1 in an injured condition,
whose state was extremely serious and who was not in a
position to speak. Having regard to the statement of P.W.-8, as
well as the injury report and discharge report of the informant
(Exhibits-1 and 2 respectively), this Court finds that it cannot
reasonably be expected of a person who has sustained such
grievous injuries to be in a mental state capable of memorising
and narrating each and every aspect of the incident.
134. Further, it needs to refer herein that the moment when
such type of incident occurs in front of any person, then, at that
time, his mindset is not in normal stage and when they give their
testimony in the Court, he just memorizing the incident and
states in front of trial court and as such, in that situation the
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Court cannot expect that such witnesses will testify graphic detail
of the incident.
135. Thus, on the basis of discussions made hereinabove,
discrepancies as raised by the learned counsel for the
appellants, are not of such a nature as to render the testimony of
the sole injured eyewitness unbelievable or unreliable.
136. On the basis of discussions made hereinabove, this Court
is of the considered view that the contention of the learned
counsel for the appellant in relation to discrepancies between
medical and ocular evidence is so vital that demolished the case
of the prosecution, is not fit to be accepted herein.
137. Further, it is settled position of law that in order to render
any witnesses’ testimony as unreliable, the inconsistencies shall
be material one and of such a nature that they create substantive
doubts in the mind of the court towards the story or the chain of
events as sought to be established by the prosecution but herein
the testimony of P.W.1 is unimpeachable and there is no chink in
the prosecution case, therefore the benefit of doubt cannot be
given to the appellants reason being that it is well-settled
principle that the benefit of the doubt must be based on rational
and cogent grounds and mere conjectures or irrelevant
inconsistencies cannot form the basis for acquittal when the
evidence, viewed as a whole, points to the guilt of the
accused/appellants.
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138. In view of the settled position of law, as discussed and
referred in the preceding paragraphs, it is pertinent to note that
the Hon’ble Apex Court has consistently held that where the
evidence of an injured eyewitness is cogent, credible, and
nothing material has been elicited in cross-examination to
demolish such testimony, reliance upon the statement of the
injured witness, is justified. In such circumstances, conviction of
the accused can be sustained solely on the basis of the
testimony of the injured eyewitness.
139. Further, as per the settled position of law as discussed and
referred in the preceding paragraphs it is evident that there is no
legal impediment in convicting a person on the sole testimony of
a single witness provided, he is wholly reliable. Herein in the
instant Case, P.W.1, being injured eyewitness has fully
substantiated the prosecution version and the testimony of
P.W.1 has fully been corroborated by the testimony of P.W.4,
P.W.8 and P.W.9.
140. At this juncture, it requires to refer herein the settled
position of law that the prosecution is not required to meet any
and every hypothesis put forward by the accused. The Hon'ble
Supreme Court in the case of State of Punjab Vs. Karnail
Sing reported in (2003) 11 SCC 271 has held that the
prosecution is not required to meet any and every hypothesis put
forward by the accused. It must grow out of the evidence in the
case. If a case is proved perfectly, it can be argued that it is
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artificial, and where the case has some flaws inevitable because
human beings are prone to err, it is argued that it is a doubtful
story. Proof beyond reasonable doubt is a guideline, not a fetish.
A judge does not preside over a criminal trial merely to see that
that no innocent man is punished. A judge also presides to see
that a guilty man does not escape. Both undefined are public
duties.
141. Thus, on the basis of the aforesaid discussion and
appreciation of the evidence, this Court finds that the prosecution
has successfully established that the appellants had abducted
the informant, Panchai Munduiya, as well as the deceased,
Birendra Munduiya, from Ashura to village Darima and
thereafter, the appellants committed the murder of Birendra
Munduiya by shooting him with firearms and further caused
gunshot injuries to the informant with such intention, knowledge,
that, death had been caused, in furtherance of their common
intention.
142. This Court, after having discussed the factual aspect and
legal position and considering the finding recorded by the
learned trial Court, is of the view that the learned trial Court after
giving its thoughtful consideration to the testimony of sole injured
eye witness (P.W. 1) being corroborated by the testimony of
doctor (P.W.9 and P.W.4) and P.W.8 Investigating Officer has
come to the conclusion that the prosecution has been able to
prove the charges beyond all shadow of doubt against the
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present appellants, therefore, the judgment of
conviction/sentence requires no interference by this Court.
143. On the basis of discussions made hereinabove, this Court
is of the view that these appeals are bereft of any merit and
therefore, stand dismissed.
144. Consequent upon dismissal of these appeals, appellants,
namely, Bir Singh Mundaiya @ Kebeya @ Vir Singh Munduiya
@ Lebiya @ Bir Singh Munduiya (appellant in Criminal Appeal
(DB) No.963 of 2017) Vijay Mundaiya, Jagdish Devgam, Manoj
Mundaiya @ Tella & Ghanshayam Mundaiya (appellants in
Criminal Appeal (DB) No.1094 of 2017), Govind Mundaiya
(appellant in Criminal Appeal (DB) No.922 of 2018) and
Vibhishan Raidas @ Ravidas @ Jagdish (Cr. Appeal (DB)
No.1269 of 2017), since, are enjoying the suspension of
sentence after order passed by this Court directing to release
them during pendency of these appeals, the bail bonds of these
appellants are hereby cancelled and these appellants are
directed to surrender before the learned trial Court for serving
out the sentence passed against them.
145. Needless to say, that if the appellants, namely Bir Singh
Mundaiya @ Kebeya @ Vir Singh Munduiya @ Lebiya @ Bir
Singh Munduiya, Vijay Mundaiya, Jagdish Devgam, Manoj
Mundaiya @ Tella, Ghanshayam Mundaiya, Govind Mundaiya
and Vibhishan Raidas @ Ravidas @ Jagdish will not surrender,
the learned trial Court will take endeavors for securing custody of
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these appellants to serve out the sentence as inflicted by the
learned trial Court.
146. Let the Lower Court Records be sent back to the Court
concerned forthwith, along with the copy of this Judgment.
147. Pending interlocutory application(s), if any, also stands
disposed of.

I Agree

(Sujit Narayan Prasad, J.)
(Anubha Rawat Choudhary, J.)

(Anubha Rawat Choudhary, J.)

High Court of Jharkhand, Ranchi
Dated: 13/05/2026
Rohit /- A.F.R.
Uploaded on 14.05.2026
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