Mahender Singh And Anr vs State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) Crl. Appeal No.D-785-DB of 2005 (O&M)
Mahender Singh @ Pissu and another
...Appellants
VERSUS
State of Haryana
...Respondent
(ii) Crl. Appeal No.D-43-DB of 2014 (O&M)
Sunder @ Kala
...Appellant
VERSUS
State of Haryana
...Respondent
Date of Decision: September 01, 2026
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
HON'BLE MRS. JUSTICE MANDEEP PANNU
Present: Mr.Anmol Partap Singh Mann, Advocate
for the appellants (in CRA No.D-785-DB of 2005).
Mr.Ajay Kirpal Singh, Advocate
for the appellant (in CRA No.D-43-DB of 2014).
Mr.Dhruv Dayal, Deputy Advocate General, Haryana
for the respondent-State.

ARCHANA PURI, J.
Challenge in the twin appeals is to the judgments dated
21.09.2005 and 08.02.2013, as both relate to the same occurrence.
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -2-
CRA-D-785-DB-2005 has been filed by appellants Mahender
Singh @ Pissu and Sanjay. Vide impugned judgment dated 21.09.2005,
they were held guilty for causing murder of Bahadur and convicted under
Section 302 read with Section 34 IPC. Vide order of sentence dated
27.09.2005, both the appellants/convicts were sentenced to undergo
imprisonment for life and to pay a fine of Rs.5,000/- each, in default
whereof, they were to further undergo rigorous imprisonment for a period of
one year.
CRA-D-43-DB-2014 has been filed by appellant Sunder @
Kala, who was earlier declared proclaimed offender and subsequently, he
was apprehended and faced trial regarding the same occurrence. Vide
impugned judgment dated 08.02.2013, he was also held guilty and convicted
under Section 302 read with Section 34 IPC, for causing murder of Bahadur.
Vide order of sentence dated 12.02.2013, Sunder @ Kala was also sentenced
to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default
whereof, he was also ordered to undergo rigorous imprisonment for a period
of six months.
The facts germane, to be noticed, are taken from the record of
judgment dated 21.09.2005, which forms the basis of CRA-D-785-DB-2005.
The factual narration is as herein given:-
That, on 24.09.2003, at about 5.00 p.m., Bahadur, aged 17 years,
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student of 10 standard, came to his house, situated in village Ismaila from
the wrestling arena. Manigar and his wife Khazani, came in front of house of
Bahadur and went away. After about half an hour, Mahender Singh @
Pissu, Sanjay and Kala, sons of Manigar came there. Mahender Singh @
Pissu and Sanjay were armed with gandasis and Kala was armed with pistol.
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -3-
Bahadur was standing in front of his house. Kala fired shots upon Bahadur.
Mahender Singh @ Pissu and Sanjay caused blows on the person of
Bahadur, with their respective gandasis. Bahadur fell down in the street.
The accused persons managed to escape. The occurrence was witnessed by
Smt.Bhanmati, mother of Bahadur. The motive attributed to the accused
was that the family of Bahadur and Manigar had a litigation.
Bahadur (injured) was brought to the Post Graduate Institute of
Medical Sciences, Rohtak. He was medico-legally examined by Dr.Vikas
Ahuja and thereupon, information was sent to the police post, PGIMS,
Rohtak, who had further dispatched the message to Police Station, Sampla,
in whose jurisdiction, the offence was committed. Upon receipt of the
message, ASI Jai Narain had reached PGIMS, Rohtak. He had collected
medico-legal report, information and a sealed parcel containing clothes of
Bahadur. All the items were taken into possession vide seizure memo.
Thereupon, ASI Jai Narain had moved an application to the Medical
Officer to seek opinion with regard to fitness of Bahadur to make statement,
but however, the concerned doctor had opined that Bahadur was unfit to
make statement. Thereupon, Bhanmati, mother of Bahadur met ASI Jai
Narain and made her statement. The endorsement upon the same was made
by ASI Jai Narain and the same was sent to the Police Station Sampla, for
registration of the case. On the basis of the statement of Bhanmati, formal
FIR was got recorded against the accused under Section 307 read with
Section 34 IPC and Section 25 Arms Act at 1.30 a.m. on 25.09.2003. Then,
ASI Jai Narain reached the spot. He had lifted the blood-stained earth form
the spot and took into possession vide separate memo. The site plan of the
place of occurrence was drawn.
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -4-
On 25.09.2003, ASI Jai Narain again sought opinion of the
Medical Officer, with regard to the fitness of Bahadur to make the statement.
Dr.Gaurva Mishra, House Surgeon, had opined Bahadur fit to make
statement, whereupon, ASI Jai Narain had recorded the statement of
Bahadur.
On 28.09.2003, Mahender Singh @ Pissu and Sanjay were
produced by Satte, Sarpanch of Gram Panchayat, Ismaila before ASI Jai
Narain. Both of them were arrested. On 29.09.2003, during the course of
interrogation, Mahender Singh @ Pissu as well as Sanjay, made the
respective disclosure statements, on the basis whereof, the gandasis were got
recovered, with which the accused had caused injuries to Bahadur. The
gandasis were taken into possession, after making of the sketches. The site
plan of place of recoveries were also prepared.
Ultimately, Bahadur succumbed to his injuries, while being admitted
in PGIMS, Rohtak on 30.09.2003, relating to which, information was sent to
Police Post, PGIMS. Thereupon, addition of offence under Section 302 IPC
was made.
On receipt of the information qua death of Bahadur in PGIMS,
Rohtak, ASI Jai Narain conducted the inquest proceedings and had sent the
dead body of Bahadur for autopsy. Dr.S.P.Sharma conducted the post-
mortem examination on the dead body of Bahadur. A sealed parcel
containing pellets taken out from the body of Bahadur were handed over to
ASI Jai Narain, vide recovery memo. Five sealed parcels; (i) containing
clothes of deceased; (ii) gandasi got recovered by Mahender Singh @ Pissu;
(iii) gandasi recovered at the instance of Sanjay; (iv) blood-stained earth and
(v) pellets recovered from the body of the deceased, were sent to the
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -5-
Forensic Sciences Laboratory, Madhuban, for analysis.
On completion of investigation, challan was presented. On the
basis of the material coming forth, charge under Section 302 read with
Section 34 IPC, on the accusations about both the appellants-Mahender
Singh @ Pissu and Sanjay, in furtherance of their common intention and
common intention of their co-accused Sunder @ Kala (who was declared
proclaimed offender earlier) did commit the murder of Bahadur by
intentionally causing injuries.
To substantiate its case, the prosecution examined as many as
13 witnesses, besides adducing documentary evidence.
The brief resume of the witnesses is PW-1 Dr.Vikas Ahuja,
Medical Officer, who had medico-legally examined Bahadur at about 7.45
p.m. on 24.09.2003 at PGIMS Rohtak. He proved the medico-legal report
Ex.P1. PW-2 Constable Rajesh, delivered the special reports of the case to
the higher officials and his affidavit, in support of his evidence is Ex.P7.
PW-3 Moharrir Head Constable Ram Parkash deposed that ASI Jai Narain
deposited with him to sealed parcels, one containing a piece of cotton and
the other, containing clothes of deceased on 25.09.2003; two sealed parcels
of gandasis on 29.09.2003 and a box containing the pellets on 30.09.2023.
He handed over all the parcels to Head Constable Satpal Singh for its
onward transmission to the office of FSL, Madhuban. His affidavit is Ex.P8.
PW-4 Head Constable Satpal Singh also deposed about manner of handing
over the parcels and safe deposit of the same and his affidavit is Ex.P9. PW-
5 ASI Siri Krishan got recorded the formal FIR, on receipt of the statement
of Bhanmati. PW-6 Constable Jitender Kumar had facilitated the conducting
of the postmortem examination on the dead body of Bahadur on 30.09.2003
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -6-
and after the needful was done, the Medical Officer handed over to him a
box containing pellets, retrieved from the body of Bahadur, which he gave to
ASI Jai Narain, and the same were taken into possession vide separate
memo. PW-7 Smt.Bhanmati, is the mother of deceased and an eye witness
to the occurrence in question and is also author of FIR Ex.P11. PW-8
Dr.S.P.Sharma, deposed about conducting of post-mortem examination on
the dead body of Bahadur on 30.09.2003. PW-9 Constable Sumit Kumar,
draftsman, prepared the scaled site plan of the spot on the demarcation of
Bhanmati. PW-10 Sub Inspector Rajbir Singh, forwarded the report under
Section 173 Cr.P.C. PW-11 ASI Jai Narain, is the Investigating Officer of
the case. PW-12 Dr.Sakshi, House Surgeon had given opinion regarding
Bahadur being unfit to make the statement at first instance on 24.09.2003.
PW-13 Dr.Gaurav Mishra, House Surgeon, declared Bahadur fit to make the
statement at 3.10 p.m. on 25.09.2003.
The report of FSL Ex.P31 was also tendered into evidence.
All the incriminating circumstances spelt out from the evidence
brought on record, were put to the respective accused Mahender Singh @
Pissu and Sanjay, in their statements under Section 313 Cr.P.C. However,
they denied the accusations and pleaded innocence and alleged that they had
not committed any offence. It was also further stated by them that Bahadur
was a gangster. He used to keep unlicensed arm. He was murdered by some
unidentified person. They have been falsely implicated because they used to
extend help to Ram Kishan, father of Bahadur, whenever there used to be
dispute between Bhanmati, mother of deceased and Ram Kishan, on which
account, Bhanmati had a grievance against them and she did not allow Ram
Kishan to live with her and he was living separate.
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -7-
In defence, accused tendered into evidence, copy of Calandara and
closed their evidence.
After hearing Public Prosecutor and learned defence counsel
and on appraisal of the evidence, brought on record, learned trial Court had
held accused Mahender Singh @ Pissu and Sanjay guilty and convicted
them under Section 302 read with Section 34 IPC and sentenced, as detailed
in the earlier portion of the judgment.
So far as, appellant Sunder @ Kala is concerned, he was
arrested on 20.11.2006, as he was earlier declared proclaimed offender on
01.12.2003. Thereupon, he faced trial on the same set of facts, as narrated
aforesaid. Charge under Section 302 read with Section 34 IPC was framed,
to which he pleaded not guilty and claimed trial.
To substantiate its case, the prosecution has examined as many
as 21 witnesses. Complainant Bhanmati has been examined as PW-8.
Several other witnesses were examined relating to conducting of the medico-
legal examination and post-mortem, on the dead body of Bahadur as well as
the linkage evidence, vis-a-vis, the manner of conducting of the
investigation. By and large, the witnesses are the same, as recorded in the
earlier trial, as detailed aforesaid, though, numbering of the witnesses and
affixation of exhibits are different. The FSL reports are Ex.P24, Ex.P24/A
and Ex.P24/B.
Apart from above, the other material witness is PW-13 Manish Rana,
Asstt. Ahlmad, in the Court of Addl. Sessions Judge, Rohini, Delhi, who had
brought the record of judicial file, relating to case FIR No.595 of 2006 under
Sections 399 and 402 IPC and Section 25 of the Arms Act, registered at
Police Station Narela (Delhi), titled as ‘State vs. Mohinder Singh etc.’. He
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -8-
proved the copy of the FIR, which is Ex.P15 and further had also stated
about disclosure statement made by Sunder, which is Mark-‘B’ and also
deposed about the recovery memo having prepared with regard to recovery
of weapon from the possession of Sunder @ Kala, which is Mark-‘C’. He
proved the copy of sketch of the abovesaid pistol Mark-‘D’. He also proved
the site plan of the place of occurrence. He further deposed that original
documents of Mark-‘B’ to Mark-‘D’ are available in the judicial file.
This witness has been examined to prove the version set up by the
prosecution about Sunder @ Kala, to have been intercepted by the police,
vis-a-vis, FIR No.595 of 2006, the detail whereof has already come on
record and copy of the same has been proved as Ex.P15.
Besides the said witness, PW-14 ASI Naresh Kumar has
deposed about having effected arrest of Sunder @ Kala and had also
deposed about the making of disclosure statement by Sunder @ Kala, which
is Ex.P16.
PW-15 Head Constable Rajesh Kumar has deposed about having
associated the investigation of FIR No.595 of 2006 and further deposed that
Sunder @ Kala was arrested on 26.09.2006 and during interrogation, he
made disclosure statement Ex.P16. He further deposed that at the time of
arrest, a country made pistol of .32 bore was recovered from the possession
of accused Sunder @ Kala and the same taken into possession vide recovery
memo Mark-‘C’. The sketch of the pistol was also prepared, which is
Mark-‘D’.
PW-17 ASI Jai Narain, Investigating Officer of the case in hand, has
further reiterated about the manner of conducting of the proceedings, during
the course of investigation and further proved the requisite documents.
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -9-
PW-20 ASI Krishan Kumar, has deposed about having come to know
on 20.11.2006 about Sunder @ Kala, who was proclaimed offender and
required by them in FIR No.232 of 2013 i.e. present case, was detained and
to be produced before the Court on that day. He further deposed about
having reached the Courts and moved an application in the Court of Illaqa
Magistrate for joining Sunder @ Kala, in the investigation of the case, which
was allowed and he joined the accused in the investigation and recorded
disclosure statement, which is Ex.P13, wherein, on the basis of the
disclosure statement, police remand of accused for two days was obtained.
During interrogation, Sunder @ Kala, resiled from his earlier disclosure
statement and made a fresh disclosure statement Ex.P14 and further, he had
disclosed therein that the weapon i.e. .38 bore was already recovered in case
FIR No.595 dated 27.09.2006.
On closure of the prosecution evidence, statement under Section
313 Cr.P.C., was recorded, wherein, all the incriminating circumstances
were put to Sunder @ Kala, who had pleaded false implication in the present
case and also stated that he had never made any disclosure statement, nor
anything was recovered from him and the recovery has been falsely planted.
In defence, he had tendered into evidence, copy of Calandara
Ex.D1 and closed the evidence.
After hearing the arguments, appellant-Sunder @ Kala was also
held guilty and convicted under Section 302 read with Section 34 IPC and
was sentenced, as stated in the earlier portion of the judgment.
Being aggrieved, the appellants, as detailed aforesaid, filed the
respective appeals.
We have heard learned counsel for the appellants as well as
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -10-
learned State counsel.
At the very outset, counsel for the appellants, in unison, have
submitted that even though, the prosecution built the case on direct
evidence, but however, both the counsel painstakingly had drawn our
attention to the contents of FIR, testimony of Bhanmati, author of the FIR
and the alleged eye witness, as well as other material evidence, brought on
record, to falsify the claim of the prosecution. In fact, both the counsel
submit that the ocular version, is at variance with the medical evidence,
brought on record and there being mismatch of the ocular and the medical
evidence, a doubt is raised about the truthfulness of the prosecution version.
In fact, testimony of Bhanmati is otherwise also not above board. No
implicit reliance can be placed upon the same. The statement of Bahadur
(since deceased) was got recorded by the police officer and not by a
Magistrate and without medical certification and the same has been
erroneously considered as dying declaration. In fact, it is required to be
discarded, on account of material omissions, on the part of police officer
recording the said statement and also there being long gap between
recording of the statement of Bahadur and death, having occurred.
Furthermore, it is also pointed that there is delay in dispatch of the
special reports to the jurisdictional Magistrate, which in itself points out
about the FIR, being ante-timed and it being post-investigative document.
The recording of the disclosure statement is also doubtful and the recovery,
on the basis thereof, do raise suspicion about the version put forth by the
prosecution. Rather, the alleged weapon of offence, belie the use of the
same in inflicting of the injuries and do no co-relate, in any manner, to the
injuries found on the person of injured/deceased.
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So far as, appellant-Sunder @ Kala is concerned, besides the points
for demolition of the prosecution version as aforesaid, also counsel for the
appellant submits that the alleged weapon of offence, at the time of arrest of
the accused, as projected by the prosecution, do not co-relate to the injuries.
There are contradictions relating to the kind of weapon recovered and the
kind of injuries sustained and it is not in any manner, connected to the bullet
recovered from the body of the deceased. Even, the disclosure statement
made by appellant-Sunder @ Kala, has been falsely prepared and is of no
use, as no recovery, on the basis thereof was effected. Rather, the disclosure
statement made, at first instance, reflects about the panic on the part of the
investigating agency to obtain remand of the accused-appellant and
therefore, they built the version of appellant-Sunder @ Kala to have
retracted from the same. Furthermore, also the motive as claimed, does not
stand established.
Thus, summing up the arguments, both the counsel for the appellants,
made a submission that the prosecution failed to establish the guilt of the
appellants, beyond shadow of reasonable doubt and therefore, made a prayer
for acceptance of the appeals and to set aside the judgments rendered by
learned trial Courts.
In refutation, learned State counsel has submitted that it is a
case of direct evidence and that too, at the instance of mother of deceased,
who was present in her house, at the time of taking place of the occurrence
and had witnessed the same. In fact, it is pointed that while considering the
testimony of Bhanmati, which is the most natural and trustworthy, coupled
with the medical evidence, brought on record, the same unerringly, point the
needle of guilt towards all the three appellants. She has specifically stated
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -12-
about participation of all the three appellants, while armed with deadly
weapons, in causing injuries to her son Bahadur. It does establish the
complicity of all the appellants.
In fact, learned State counsel points out that there is no delay in
initiation of proceedings. Even, additional credence is there from the
disclosure statements made by the appellants and the recovery of the
weapons of offence, on the basis thereof. The motive, is not of much
significance, as it is a case of direct evidence, in the form of Bhanmati,
mother of the deceased, who had witnessed the same and has clearly spoken
about the role attributed to each of the appellants, who were armed with
deadly weapons and the manner of inflicting of injuries to his son, which
ultimately proved fatal. Anyhow, it is stated that motive stands evidently
established, as Calandara Ex.P31/Ex.D1 was proved in defence by the
appellants.
With the able assistance of the learned counsel for the
appellants and learned State counsel, we have also gone through the trial
Court record.
Before proceeding further, to the factual and evidential
appraisal, in the case in hand, it is important to make mention about the
manner of appraisal of evidence, in a criminal trial. It is a trite proposition of
law, that suspicion however grave, it cannot take the place of proof and that
the prosecution, in order to succeed on a criminal charge, cannot afford to
lodge its case in the realm of “may be true”, but has to essentially elevate it
to the grade of “must be true”. In a criminal prosecution, the court has a duty
to ensure that mere conjectures or suspicion, do not take the place of legal
proof and in a situation, where a reasonable doubt is entertained in the
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -13-
backdrop of the evidence available, to prevent miscarriage of justice, benefit
of doubt is to be extended to the accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful, intangible or non existent, but as
entertainable by an impartial, prudent and analytical mind, judged on the
touch-stone of reason and common sense. Very close to the same, there has
to be underlying string running throughout about the inalienable interface of
presumption of innocence and the burden of truth, in a criminal case, which
is always on the prosecution.
The case before us is of direct ocular evidence, wherein,
Bhanmati, being the only eye witness, is stated to have witnessed the entire
incident, when her son Bahadur, was being inflicted injuries by all the three
appellants, who were armed with deadly weapons, such like, gandasis and
fire arm. The FIR was registered by the police, on the statement of
Bhanmati, when her son Bahadur (injured) was opined by the concerned
doctor, to be unfit to make a statement.
Bhanmati, in her statement, which formed the basis of the FIR, had
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categorically stated that her son Bahadur, is in 10 class and on the day of
the occurrence i.e. 25.09.2003, he had returned home at about 5.00/5.30 p.m.
from the arena. Manigar and his wife came in front of their house, after his
arrival. After a watch, they had returned back. After their return, Mahender
Singh @ Pissu, Sanjay and Kala, sons of Manigar came there. Mahender
Singh @ Pissu and Sanjay, had gandasis in their hand and Kala was armed
with pistol. She further stated that her son Bahadur was standing outside the
house. On their arrival, Kala gave many fire shots to her son and Mahender
Singh @ Pissu and Sanjay gave many gandasi blows to him. On receipt of
fire shots and blows, his son fell down in the street. After this, Mahender
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Singh @ Pissu, Sanjay and Kala fled away from the spot, with their
respective weapons. Thereafter, they admitted Bahadur in PGIMS, Rohtak.
Mahender Singh @ Pissu, Sanjay and Kala had attacked her son with
intention to kill because litigation was still going on between them and she
made prayer for initiation of action against the said persons.
The ocular evidence is solely of Bhanmati, who had stepped into
witness box twice, in both the trials, undergone by Mahender Singh @ Pissu
and Sanjay as well as Sunder @ Kala. Besides deposing about her
relationship with Bahadur, she had categorically deposed that her son
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Bahadur, was 17 years old and was student of 10 standard. On the day of
the alleged occurrence, he was standing in a street in front of his house at
about 5.00/5.30 p.m., in village Ismaila. She was standing on the gate of her
house. Manigar and his wife Smt. Khazani, i.e. parents of the accused, had
come and then gone away. After half-an-hour, Mahender Singh @ Pissu,
Sanjay and Kala, (who was declared proclaimed offender earlier), sons of
Manigar came there. Mahender Singh @ Pissu and Sanjay, were armed with
Gandasis and Kala was armed with pistol. Kala fired shots upon her son
Bahadur, whereas Mahender Singh @ Pissu and Sanjay gave blows from
reverse sides of their gandasis. Her son fell down on the ground. She raised
alarm and then accused fled away from the spot. It was also stated by her
that a year prior to the occurrence, a quarrel had taken place between the
accused and his son Bahadur, on a dol of a field. The accused had subjected
her son to beatings. He was medico-legally examined. The matter was
compromised with the intervention of the respectables. The accused bore a
grudge, as a result whereof, they had murdered her son.
This material eye witness was cross-examined at length by learned
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defence counsel. She had stated in cross-examination about Ram Kishan to
be her husband, who has two brothers, Ram Niwas and Ram Dia and her
husband was living separate from her. A dispute arose between her husband
and son, over a piece of land and further, she also deposed about Bahadur to
be a wrestler and that whenever any dispute arose between her and her
husband, accused's family used to help her husband. Her husband is nephew
of Manigar and further, she also denied the suggestions about bad character
of Bahadur as well as about herself and her sister Angoori to be giving
beatings to their husband, on which account, they were living separate. She
had further stated that in fact, there was no litigation in the Court, between
her and Manigar. On being questioned about how many shots fired upon her
son, she deposed that it was not possible for her to count fires, but those
were many in numbers. She clarified that Kala had fired shots from the
distance of two paces. She denied suggestion about Bahadur to be a 'Gunda'
and that he had a number of enemies in the village and was murdered by
some unknown person.
From the above testimony, it can be clearly made out that
Bhanmati, mother of the deceased, had remained unshaken in both her chief
examination and cross-examination, on the aspect that it was indeed all the
three appellants, who inflicted such brutality on Bahadur, which ultimately
led to his death. It is well-established rule in criminal jurisprudence that
direct ocular evidence, if found to be natural, cogent and trustworthy,
constitutes the best form of evidence and ordinarily prevails over all forms
of evidence. In this regard, beneficial reference is made to Shahaja alias
Shahajan Ismail Mohd. Shaikh vs. State of Maharasthra, 2023 (12) SCC
558, wherein, it was observed, as herein given:-
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“30. To put it simply, 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, the 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, yet the evidence
of the prosecution witnesses has to be examined on its own
merits, where the accused raise a definite plea or puts 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.
31. There is nothing palpable or glaring in the evidence of the
two eyewitnesses on the basis of which we can take the view
that they are not true or reliable eyewitnesses. Few
contradictions in the form of omissions here or there is not
sufficient to discard the entire evidence of the eyewitnesses.”
(emphasis supplied)
When there is a direct evidence, in the form of a sole eyewitness
testimony, there exists no legal impediment, on convicting solely on the
basis of that since what matters is the quality and not the quantity of the
witness. The aforesaid principle was authoritatively laid down in the case of
Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, wherein it was held:
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -17-
of the different High Courts in India in which the Court insisted
on corroboration of the testimony of a single witness, not as a
proposition of law, but in view of the circumstances of those
cases. On a consideration of the relevant authorities and the
provisions of the Evidence Act, the following propositions may
be safely stated as firmly established:
16.1. As a general rule, a court can and may act on the
testimony of a single witness though uncorroborated. One
credible witness outweighs the testimony of a number of other
witnesses of indifferent character.
16.2. Unless corroboration is insisted upon by statute, courts
should not insist on corroboration except in cases where the
nature of the testimony of the single witness itself requires as a
rule of prudence, that corroboration should be insisted upon, for
example in the case of a child witness, or of a witness whose
evidence is that of an accomplice or of an analogous character.
16.3. Whether corroboration of the testimony of a single
witness is or is not necessary, must depend upon facts and
circumstances of each case and no general rule can be laid
down in a matter like this and much depends upon the judicial
discretion of the Judge before whom the case comes.”
In view of these considerations, it is pertinent to mention that nowhere
the law requires plurality of witnesses, in proof of the crime. It is the
discretion of the Presiding Judge, which comes into play. The matter
depends upon the circumstances of each case and the quality of the evidence
of a single witness, whose testimony, either has to be accepted or rejected.
If such a testimony is found by the Court to be entirely reliable, then there is
no legal impediment to the conviction of the accused person on such proof.
Even, as the guilt of an accused person, may be proved by the testimony of a
single witness, the innocence of an accused person, may be established on
the testimony of a single witness, even though, a considerable number of
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witnesses, may be forthcoming, to testify to the truth of the case for the
prosecution. As such, it is quite obvious and well- established rule of law
that the Court is concerned with the quality and not with the quantity of the
evidence, necessary for proving or disproving a fact. 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.
Tested on the anvil of the aforesaid principles, the testimony of
Bhanmati, inspires complete confidence. Being the natural sole witness, in
the capacity of being mother of the deceased, her presence at the scene of the
occurrence, which is outside her house and she being present at the gate of
her house, is quite natural and unquestionable. The version of Bhanmati on
the manner of assault and the participation of all three appellants i.e.
Mahender Singh @ Pissu, Sanjay and Sunder @ Kala, and weapons used
had remained consistent, credible, enough to safely sustain conviction of the
appellants.
A faint attempt was also made, while appraising the testimony
of Bhanmati, being closely related to Bahadur, being her mother and
therefore, she fell within the bracket of related/interested witness; hence, her
sole testimony, should not be relied upon for sustaining the conviction of the
appellants. However, a witness can be regarded as an interested witness,
only when it can be shown that such witness has direct motive, personal
animosity or any other reason to falsely implicate the accused person.
Ultimately, the credibility of every witness has to be determined keeping in
view the facts and circumstances of each case. A close relative, who is a
very natural witness, cannot be regarded as an interested witness. In the case
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in hand, the occurrence had taken place, outside the house of deceased
Bahadur, who is son of complainant Bhanmati. Complainant Bhanmati was
present at the gate of her house and therefore, she is the most natural
witness, present in her own house, who has witnessed the taking place of the
occurrence. She cannot, in any manner, be termed as ‘interested’, as it is
quite obvious that the mother would be the last person to screen the real
culprit and falsely implicate the accused persons. It is true, when feelings
run high and there is personal cause for enmity, then there is a tendency to
drag in, an innocent person against whom, a witness has a grudge along with
the guilty, but foundation must be laid for such a criticism and the mere fact
of relationship, far from being a foundation, is often a sure guarantee of
truth. The contention of counsel for the appellants, is devoid of any merit,
since, mere relationship with the deceased, does not render a witness,
interested or unreliable.
Bhanmati is the close relative, being mother of deceased and also
within whose eye view the occurrence had taken place, while she was
present at the gate of her own house and therefore, such natural witness in
any manner, cannot be equated as an interested witness, merely because of
this relationship.
Even though, much emphasis has been laid upon the factum of
motive, not being proved, but however, when there is direct evidence,
coming forth, then the motive, as such, pales into insignificance.
Furthermore, it has been clarified by Bhanmati about ill-will and dispute
with the family of the appellants. Anyway, it has been correctly observed by
the trial Court about the motive always remaining embedded in the mind of
the culprit, which no one else can matter. That being so and considering
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motive as a double-edged weapon, it in any manner, can work both ways and
therefore, in view of the Calandara, recorded at the instance of Ram Dia,
their relative, the ill-will on the part of appellants, as such, also cannot be
ruled out. Despite lengthy cross-examination having conducted upon the
complainant, nothing was evident to dislodge or discredit her testimony. In
fact, she had faced cross-examination as a rock and nothing material elicited
out to infer about false implication of the appellants, solely on account of
there being dispute with the extended family. Otherwise also, the motive, as
such, does not carry much weight, when the case rest upon the direct
evidence, as in the case in hand.
Additional credence to the version of the sole eye witness is
also lent by the medical evidence, brought on record. Injured Bahadur was
brought to PGIMS, Rohtak, soon after the occurrence. PW-1 Dr.Vikas
Ahuja, medico legally examined him, who proved the MLR. He found the
injuries, the detail whereof is reproduced in the impugned judgments and
perusal of the same reveals that there were as many as ten injuries, on the
person of Bahadur. Six of them were punctured wounds, which the medical
officer had opined that the same to be caused by fire arm. Injuries No.2, 3, 9
and 12 were caused by a blunt weapon and also he opined that it would be
caused by gandasi, from their blunt side.
Furthermore, PW-8 Dr.S.P.Sharma, who conducted autopsy on the
dead body of Bahadur, had also given the detail of the injuries, which has
been reproduced in the trial Court’s judgment and the medical officer also
opined that the fire arm injuries on the person of deceased, were shot from
the close range. The post-mortem examination report was duly proved.
Therein, in the remarks column by the Medical Officer, it was stated that the
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deceased died of respiratory failure, due to spinal cord (cervical) injury by a
bullet. The injury is ante-mortem and sufficient to cause death. Bullet was
retrieved from the body of the Bahadur. The parcel was also prepared of
deformed .32 bore fired revolver bullet and two small size metallic pieces
stated to be taken out of the body of the deceased. The bullet was marked as
BC/1 by the serologist. It was stated that .32 bore fired revolver bullet
marked BC/1 has been fired from country made fire arm. Two small sized
metallic pieces contained in parcel No.5 could be pieces of .32 bore fired
bullet BC/1.
Learned counsel for the appellants has placed much reliance
upon the FSL report, wherein, it was stated that blood was found on the
blades of gandasis, the alleged weapon of offence, having recovered from
Mahender Singh @ Pissu and Sanjay. Keeping in view the same, it is
submitted that Bhanmati, while deposing in the witness box had stated that
gandasi blows were given from its reverse side. On this account, it is
submitted that the testimony of Bhanmati is not above board. However,
learned trial Court had specifically, while dealing with the same, in the
impugned judgment in paragraph No.38 had taken into consideration the
length and breadth of the gandasis and had also further stated about the
blood oozing out from the injuries and therefore, it was quite natural that the
blood appeared on the blades of gandasis and thus, the criticism with regard
to the ocular testimony of Bhanmati was repelled.
Human blood found on the blade, on the gandasis, which were
concealed by the accused persons and got recovered at their instance, after
making of disclosure statements, as such, do not support the version about
the injuries having caused from the sharp side, when Bhanmati had
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categorically stated that blows were given from the reverse side of the
gandasi.
So far as, litigation stated to be pending between the parties, the
same has also been specifically dealt by the trial Court. The testimony of an
eye witness is not to be discarded, solely on account of having stated about
the litigation being there between them and Manigar. It has been rightly
observed by the trial Court that the word ‘litigation’ does not mean that it
was pending in the Court of law. It may be taken that there was a dispute
between the son and accused, over the dol and the matter was compromised
in the panchayat. Otherwise also, viewed from another angle, the Calandara
has been proved by the appellants in their defence, wherein, proceedings
were initiated against Bahadur, under Sections 107 and 151 Cr.P.C., on the
statement of Ram Dia, who is the first cousin of accused. Considering the
same also, the testimony of Bhanmati, in any manner, is not to be discarded.
Besides the medical evidence, also additional credence is lent to
the testimony of Bhanmati from the statement of Bahadur, got recorded
under Section 161 Cr.P.C., which in the prior trial, has been proved as
Ex.P21.
Throughout the arguments, much emphasis has been laid upon the
statement to have not been recorded by the Magistrate nor accompanied by
any contemporaneous medical certification, regarding the mental fitness of
the injured to give statement. However, the contention so raised is bereft of
merits. It is pertinent to mention that statement of Bahadur was under
Section 161 Cr.P.C. and it was got recorded on 25.09.2003, after obtaining
opinion regarding fitness of the injured to make the statement from the
concerned doctor. In the light of the same, we find that the contention raised
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aforesaid is not tenable. It is so said because it is well established position of
law that the statement made by the deceased person, as to the cause of his
death or to the circumstances of the transaction, which resulted in his death,
to a Police Officer and recorded under Section 161 Cr.P.C, shall be relevant
and admissible under Section 32(1) of the Evidence Act, notwithstanding the
express bar, provided in Section 162 Cr.PC. Such a statement, upon the
death of the declarant, assumes the character of a dying declaration. It is also
equally settled that a dying declaration need not necessarily be recorded in
the presence of a Magistrate and that the lack of a doctor's certification, as to
the fitness of the declarant’s state of mind, would not ipso facto, render the
dying declaration unacceptable. Here in the case in hand, the fitness of
injured Bahadur (since deceased) was obtained from the concerned doctor
and thereupon, the statement was recorded. Even, beneficial reference is
made to Dharmendra Kumar v. State of M.P. 2024 (8) SCC 60, wherein, the
Hon’ble Supeme Court, held as herein given:-
“65. Section 161 Cr.P.C empowers the police to examine orally
any person who is acquainted with the facts and circumstances
of the case under investigation. The police may reduce such
statement into writing also. Section 162(1).Cr.P.C, nonetheless,
mandates that no statement made by any person to a police
officer, if reduced to writing, be signed by the person making it,
nor shall such statement be used in evidence except to
contradict a witness in the manner provided by Section 145 of
the Evidence Act. However, sub-section (2) of Section 162
Cr.P.C carves out an exception to sub-section (1) as it explicitly
provides that nothing in Section 162 shall be deemed to apply
to any statement falling within the ambit of clause (1) of
Section 32 of the Evidence Act. In other words, a statement
made by a person who is dead, as to the cause of his death or to
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -24-
the circumstances of the transaction which resulted in his death,
to a police officer and which has been recorded under Section
161 Cr.P.C., shall be relevant and admissible, notwithstanding
the express bar against use of such statement in evidence
contained therein. In such eventuality, the statement recorded
under Section 161 Cr.P.C. assumes the character of a dying
declaration. Since extraordinary credence has been given to
such dying declaration, the court ought to be extremely careful
and cautious in placing reliance thereupon…
66. As regards the assessment of mental fitness of the person
making a dying declaration, it is indubitably the responsibility
of the court to ensure that the declarant was in a sound state of
mind. This is because there are no rigid procedures mandated
for recording a dying declaration. If an eyewitness asserts that
the deceased was conscious and capable of making the
declaration, the medical opinion cannot override such
affirmation, nor can the dying declaration be disregarded solely
for want of a doctor's fitness certification. The requirement for a
dying declaration to be recorded in the presence of a doctor,
following certification of the declarant's mental fitness, is
merely a matter of prudence. [Koli Chunilal Savji v. State of
Gujarat, (1999) 9 SCC 562 : 2000 SCC (Cri) 432]”
[See also: Laxman v. State of Maharashtra (2002) 6 SCC 710;
Bhagwan v. State of U.P. (2013) 12 SCC 137; Jagbir Singh v.
State (NCT of Delhi) (2019) 8 SCC 779; Pradeep Bisoi v. State
of Odisha (2019) 11 SCC 500; and Manjunath v. State of
Karnataka 2023 SCC Online SC 142].”
Perusal of Ex.P21 reveals that it primarily narrates the incident
and elaborates on the circumstances that culminated in the act and brings
forth the complicity of the appellants. Even though, much resistance is also
shown to the reception of this statement as dying declaration as it is
contended that Bahadur died after a period of five days of making of the said
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statement, but however, the gap five days is not such a gap, which raises

Crl. Appeal No.D-785-DB of 2005 and connected appeal -25-
doubt. In fact, law does not require that a declarant, at the time of making
the statement, to be under the shadow of death or the expectation that death
is imminent. In any event, Section 32 of the Evidence Act, contains no such
limitation, vis-a-vis, recording of the statement, which is later on considered
as dying declaration and the date of death of person, making the said
statement. What is pertinent is that the statement relates, either to the cause
of death or the circumstances leading to it.
Much emphasis has also been laid upon the statement of Bahadur
th
having thumb marked, though, he was asserted to be a student of 10 class,
at the relevant time. In this regard, it is pertinent to mention that the
statement, which is now taken as dying declaration, is the statement made
under section 161 Cr.P.C. Before the recording of the said statement, the
opinion was obtained from Dr.Gorav Mishra, with regard to fitness of the
injured Bahadur, to make the statement. Much emphasis has been laid upon
the cutting having made by Dr.Gorav Mishra, after giving the opinion about
the patient to be fit for giving statement, but having quadri paresis. No
doubt, this cutting is there on the application, initially filed by ASI Jai
Narain to obtain the fitness opinion, but however, then what can be plausible
reason for the same and what benefit the doctor or the prosecution could
obtain from the same, is a wild guess.
In this regard, suffice to make reference to the testimony of Dr.Gorav
Mishra. In his cross-examination, he had stated that he had firstly written
that patient was fit for oral statement, but having quadri paresis and he
further stated that he had scrawled both the lines and gave the opinion again
that the ‘patient is fit for statement at present’. In the subsequent paragraph,
in cross-examination, he had admitted that the earlier two lines written by
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -26-
him, because firstly, he thought that besides giving his opinion, the case
history of the injured is necessary, but having the second thought, that it was
not necessary, he gave the opinion, which was proved as Ex.P18-B/Ex.P23-
A. The injured was having paralysis of all four limbs i.e. quadri paresis, that
is, the four limbs were weak but it was not complete paralysis.
While considering the cross-examination of said witness, the cutting if
any made, is of no help to the prosecution, as the doctor had explained away
the manner of cutting the same and then giving simple opinion with regard
to the fitness of the patient, which is solely to be considered by the Court. It
was only thereafter, that the statement of Bahadur was got recorded. It is
pertinent to mention that the statement recorded by the Investigating Officer,
at the relevant time, was under Section 161 Cr.P.C., which is not required to
be signed or thumb-marked by the person, making it. Otherwise also,
considering the cross-examination of Dr.Gorav Mishra, it is evident that the
patient is having paralysis of all four limbs and probably under these
circumstances, the thumb impressions were obtained. But however, it
matters not much, as nowhere, it is the requirement of law that statement
under Section 161 Cr.P.C., to be signed/thumb-marked.
Even, in the statement under Section 161 Cr.P.C., which is now
taken as dying declaration, injured had given vivid description of active
participation of all the three appellants, namely Mahender Singh @ Pissu,
Sanjay and Sunder @ Kala and he stated about the manner of inflicting of
injuries with the deadly weapons, upon him. Considering the same, Bahadur
has stated about the cause and circumstances for causing of the incident,
which ultimately led to his death. Thus, the dying declaration lends credence
to the prosecution version.
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Also, during the course of submissions, much emphasis has been laid
upon the long delay in registration of the FIR and consequential delay in
receipt of special report by the Illaqa Magistrate, on the basis thereof. It is
submitted that the inordinate delay in receipt of the special report by the
Illaqa Magistrate, creates doubt on the veracity of the prosecution case,
regarding timing of the FIR. Thus, it is apparent that the FIR was got
recorded at a very late stage and it was ante-timed. In this regard, it is
essential to take note that the occurrence had taken place at 5.30 on
24.09.2023, at village Ismaila. Injured Bahadur was brought at PGIMS,
Rohtak, where he was medico-legally examined by Dr.Vikas Ahuja, at 7.45
p.m.. After the examination, Dr.Vikas Ahuja had sent information to the
Incharge, Police Post, PGIMS, Rohtak. The Incharge, Police Post,
PGIMS, Rohtak had further informed the police of Police Station Sampla.
ASI Jai Narain had then reached PGIMS, Rohtak and after conducting of the
formalities, vis-a-vis, collection of the MLR, clothes of Bahadur from the
Incharge, Police Post, PGIMS, Rohtak, moved an application to the
concerned doctor to seek his opinion about fitness of Bahadur to make
statement or not. However, at first instance, the concerned Medical Officer
opined Bahadur to be unfit to make statement. Thereafter, he had recorded
the statement of complainant Bhanmati and after affixing his endorsement
upon it, had send the same to Police Station, Sampla, for registration of the
case. Thereupon, first information report was recorded at 1.30 a.m. on
25.09.2003.
It is pertinent to mention that the seriatim of facts, as stated
aforesaid, do suggest that there was no delay in lodging of the FIR. Further,
counsel for the appellants has laid much emphasis upon the copy of the
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special report having received by the Magistrate at 10.00 a.m. on
26.09.2003, whereas, the case was registered at 1.30 a.m. on 25.09.2003, on
which account, it is submitted that the delay as such, falsifies the case of the
prosecution. However, it is pertinent to mention that at first instance, the
case was registered under Section 307 read with Section 34 IPC and Section
25 of the Arms Act. It has been correctly observed by learned trial Court
that it is not case of the prosecution that special report of the case was
immediately dispatched to the Magistrate. Otherwise also, the significance
of delay in forwarding the special report to the jurisdictional Magistrate has
repeatedly been considered by the Courts. In Pala Singh v. State of Punjab,
1972 (2) SCC 640, it was observed by the Hon’ble Supreme Court that
though delayed receipt of the FIR by the Magistrate may be improper or
objectionable, such delay by itself would not necessarily render the
prosecution case doubtful, if the FIR had in fact been promptly recorded and
the investigation had commenced thereupon. Relevant extract from the
aforesaid judgment is herein reproduced: -
“8. [……] Section 157 CrPC requires such report to be sent
forthwith by the police officer concerned to a Magistrate
empowered to take cognizance of such offence. This is really
designed to keep the Magistrate informed of the investigation of
such cognizable offence so as to be able to control the
investigation and if necessary to give appropriate direction
under Section 159. But when we find in this case that the FIR
was actually recorded without delay and the investigation
started on the basis of that FIR and there is no other infirmity
brought to our notice, then, however improper or objectionable
the delayed receipt of the report by the Magistrate concerned it
cannot by itself justify the conclusion that the investigation was
tainted and the prosecution insupportable. It is not the
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Also, beneficial reference is made to Jafarudheen v. State of
Kerala, 2022(8) SCC 440, wherein, it was reiterated by the Hon’ble
Supreme Court that prompt transmission of the FIR to the jurisdictional
Magistrate is not a mere procedural formality, but a vital safeguard, intended
to ensure fairness and transparency in the investigative process. The Court
observed that the FIR is the document, which sets the criminal law in motion
and constitutes a valuable piece of evidence for corroborating the
prosecution version. Prompt forwarding thereof to the Magistrate serves the
salutary purpose of eliminating the possibility of ante-dating, ante-timing,
embellishment or subsequent interpolation of facts and enables the
Magistrate to effectively exercise the supervisory jurisdiction contemplated
under the Cr.P.C. It was further held that although mere delay in forwarding
the FIR is not, by itself, fatal to the prosecution case, such delay assumes
significance where the surrounding circumstances indicate the possibility of
manipulation, deliberation, consultation or introduction of a coloured
version of events. In such cases, the effect of the delay has to be assessed
cumulatively along with the other attendant circumstances appearing on
record. Relevant extract from the aforesaid judgment is reproduced as
herein: -
“28. The jurisdictional Magistrate plays a pivotal role during
the investigation process. It is meant to make the investigation
just and fair. The investigating officer is to keep the Magistrate
in the loop of his ongoing investigation. The object is to avoid a
possible foul play. The Magistrate has a role to play under
Section 159 Cr.PC.
29. The first information report in a criminal case starts the
process of investigation by letting the criminal law into motion.
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Crl. Appeal No.D-785-DB of 2005 and connected appeal -30-
corroborate the oral evidence. Therefore, it is imperative that
such an information is expected to reach the jurisdictional
Magistrate at the earliest point of time to avoid any possible
ante-dating or ante-timing leading to the insertion of materials
meant to convict the accused contrary to the truth and on
account of such a delay may also not only get bereft of the
advantage of spontaneity, there is also a danger creeping in by
the introduction of a coloured version, exaggerated account or
concocted story as a result of deliberation and consultation.
However, a mere delay by itself cannot be a sole factor in
rejecting the prosecution's case arrived at after due
investigation. Ultimately, it is for the court concerned to take a
call. Such a view is expected to be taken after considering the
relevant materials.”
Thus, in view of the aforesaid case law, mere delay in
forwarding the FIR to the Magistrate cannot, by itself, be treated as fatal to
the prosecution case, nor can such delay, in isolation, be made the sole basis
for discarding otherwise credible prosecution version. However, where there
are allegations of ante-timing, ante-dating and fabrication, the same ought to
be considered, coupled with the surrounding facts generating genuine
suspicion regarding the fairness and integrity of the investigation process.
Then, such delay acquires considerable significance. Then, the Court is
required to assess the affect of such delay, not in isolation but cumulatively
with the other circumstances, brought on record, while testing the overall
credibility of the prosecution case.
In this backdrop, adverting to the case in hand, as already
considered aforesaid about the seriatim of facts, so far as, lodging of the FIR
is concerned, there is no such delay evident. Even, ASI Jai Narain, who had
stepped into witness box, in both the cases, as such, has not been cross-
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examined on the question of delay being there or to give him an opportunity
to explain the same, if so evident.
However, with regard to the delay in forwarding of the FIR to the
jurisdictional Magistrate, the same, as such, cannot stand in isolation. When
higher unusual circumstances come forth, which reveal about the damage
caused to the prosecution version, on account of the same, then the delay, as
such, assumes greater significance. However, in the case in hand, this delay
cannot be considered in isolation, more particularly, when the recording of
the statement of Bhanmati, is categorically stated to have been recorded on
24.09.2003 and the endorsement made by ASI Jai Narain, upon the same,
reflects about the timing of the endorsement to be 12.15 a.m. on 25.09.2003
and thereupon, it was forwarded for the registration of the FIR. Perusal of
the FIR also reveals that it was recorded on 25.09.2003 at 1.30 a.m..
Further, ASI Jai Narain while in the witness box, was not cross-
examined, in any manner, about the factum of delay in recording of the FIR.
In the light of the same, the delayed transmission of the FIR to the
Magistrate, cannot be considered in isolation. As such, the submission so
made, is bereft of merits.
So far as, Sunder @ Kala is concerned, apart from the aforesaid
aspects considered threadbare, counsel for the appellant has also submitted
that even though, the prosecution has set up the version of weapon of
offence, having recovered from appellant-Sunder @ Kala, at the time of his
arrest having effected in case FIR No.595 of 2006 under Sections 399 and
402 IPC and Section 25 of the Arms Act, registered at Police Station, Narela
(Delhi), but however, the same does not stand established. In fact, no
examination was made, at any stage, to connect the bullet and metallic
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pieces, so retrieved from the dead body of Bahadur, with the weapon
allegedly recovered. Very true, there is yawning gap in the theory set up by
the prosecution. Missing link is there. Otherwise also, at the maximum, it is
the recovery of weapon, at the time of arrest. Whether, it is a weapon of
offence, relating to the same, no clear and specific evidence, as such, has
come on record. There are also discrepancies/contradictions coming forth,
with regard to the weapon recovered to be .32 bore, .38 bore or .315 bore,
which in itself do not establish linkage of the same to the bullet, retrieved
from the body of the deceased. Anyhow, assuming that the recovery of
weapon used is not established or proved, the same in itself, cannot be a
ground to acquit the appellants, when also there is direct evidence of the eye
witness. The recovery of the weapon used, in the commission of the
offence, is not a sine qua non to convict the accused. If there is direct
evidence in the form of an eye witness, even in the absence of recovery of a
weapon, the accused can be convicted.
As observed herein above, Bhanmati is an eye witness to the
occurrence in question. She has fully supported the case of the prosecution.
She withstood the cross-examination as a hard rock. As per the settled
position of law, there can be conviction on the basis of the deposition of the
sole eye witness, as observed in the earlier portion of the judgment, if the
same is found to be trustworthy and/or reliable. As observed herein above,
there is no reason to doubt the credibility and/or reliability of the
complainant Bhanmati.
In the light of the aforesaid observations, learned trial Court has
rightly held the appellants Mahender Singh @ Pissu, Sanjay and Sunder @
Kala, to be guilty and convicted them under Section 302 read with Section
VINEET GULATI
2026.09.02 16:39
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authenticity of this document

Crl. Appeal No.D-785-DB of 2005 and connected appeal -33-
34 IPC. Thus, both the appeals sans merit and are hereby dismissed.
Accused-appellants, namely, Mahender Singh @ Pissu and
Sanjay, are on bail. A copy of the judgment be sent to concerned Chief
Judicial Magistrate, to initiate process of re-arrest of the aforesaid
appellants, so as to serve the remaining part of the sentence.
The pending misc. applications, if any, shall stand disposed of.
(ARCHANA PURI)
JUDGE
(MANDEEP PANNU)
JUDGE
September 01, 2026
Vgulati
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
VINEET GULATI
2026.09.02 16:39
I attest to the accuracy and
authenticity of this document