KUNA@ SANJAYA BEHERAversusTHE STATE OF ODISHA

                        [2017] l l S.C.R. 179



                  KUNA@ SANJAYA BEHERA                                    A
                                  v.
                      THE STATE OF ODISHA
                  (Criminal Appeal No. 677 of20 IO)
                       NOVEMBER 17. 2017                                  B

          [N. V. RA.MANA AND AMITAVA ROY, JJ. J
        Penal Code, 1860 - ss.302, 203 rlw. s.34 - Alleged extra-
marital relationship between appellant-accused and the co-accused
- Dead body of husband of co-accused found hanging from the               C
roof of a shed adjacent to deceased's house - PWJ (deceased'.~
nephew) was the sole eye-witness - Trial court convicted the
appellant and co-accused uls.302 !PC rlw s.34, however, discarded
 the prosecution case of illicit relationship between accused persons
 and the same being the motive of murder - High Court affirmed the
 conviction, accepting the prosecutions plea of motive of murder          D
founded on extra-marital relationship between accused persons -
 On appeal, held: Testimony of PW/ with regard to illicit relationship
 between the accused persons lacks in persuasion - Evidence of
 PW/ is unacceptable being fraught with improbabilities, doubts and
 oddities inconceivable with normed human conduct and, tlms cannot
                                                                          E
 be the basis of conviction - In the present case, the incident at the
fir.st place was registered as a case of wmatural death and ajier six
 days of the occurrence it was converted into one 11/s. 3021203134,
 on aie disclosures made by PWJ, PW5, PW6 and PW8 - Testimony
 of PW5, PW6 and PW8 cannot be construed as substantive in nature,
 these witnesses having derived the knowledge from PWI -                  F
 Prosecution has failed to prove JIlicit relationship between appellant
 and co-accused and therefore, t/1e motive for the murder by them -
 Dehors the testimony of PW/ and the alleged motive, there is no
 other tangible and clinching material 011 record in support of.the
 charge against the appellant and the co-accused - Contrary view          G
 taken by the Courts below is againsr the evidence on record -
 Inference of motive drawn by the High Court is flawed - Appellant
 is entitled to benefit of doubt and is acquitted.
      Evidence Act. 1872 - s.3 - Fact -''proved", disproved" and
"not proved""- Standard of proof" required for - Discussed.
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                                  179
180            SUPREME COURT REPORTS                     [2017] ll S.C.R.



A           Evidence- Of sole eye-witness - Held: Conviction can be
      based on the testimony of a single eye willless if he or she passes
      the rest of reliability - It is not the number of witnesses but the
      quality of evidence that is important.
            Allowing the appeal, the Court
B            HELD: I.I Conviction can be based on a testimony of a
      single eye witness if he or she passes the test of reliability and it
      is not the number of witnesses but the quality of evidence that is
      important. In a case where the charge is sought to be proved
      only on circumstantial evidence, motive plays an important part
c     in order to tilt the scale.(Paras 17, 18](190-D-F)
            Mahamadkhan Nathekhan v. State of Gujarat {2014)
            14 SCC 589: (2014) 7 SCR 777 - relied on.
             1.2 The expression "proved", "disproved" and "not
      proved", lays down the standard of proof, about the existence or
D     non-existence of the circumstances from the point of view of a
      prudent man, so much so that while adopting the said requirement,
      as an appropriate concrete standard to measure "prool'', full effect
      has to be given to the circumstances or wnditions of probability
      or improbability. It is this degree of certainty, existence of which
E     should be arrived at from the attendant circumstances, before a
      fact can be said to be proved. (Para 2111192-B-C)
            2.1 PWI is related both to the deceased and the accused-
      appellant. Whereas the deceased was his uncle, the appellant is
      his cousin brother. He claimed to have accompanied the appellant
      from the video show till the place of occurrence. At the relevant
 F
      time, he was admittedly intoxicated. The incident, as per the
      prosecution version, occurred between la.m. to 2a.m. in the
      intervening night in the house of the deceased which was located
      about 15 cubits from the compound where the house of PWl was
      situated. The spot map prepared by the l.O. docs not mention
G     about any source of light in the locality. It docs not even indicate
      as to whether the area was lighted at the time of the incident so
      as to make the viewing of the incident possible by PWl from the
      place, where he was locatt•d. Though PWl claimed that the


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   KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA                        181


duration of the incident was about one hour, he did not utter a A
sound or make a shriek or raise any alarm either to prevent the
occurrence or to muster assistance from the inhabitants in the
locality. This was more so as he admitted that there were about
150 to 200 inhabitants, lodging nearby apart from the fact that
the houses of his relatives as well of the deceased were almost in
                                                                    B
the same campus. His pica that he did not disclose the incident
to others immediately as he was threatened by the appellant does
not explain or justify in any manner whatsoever his inexplicable
silence or indifference during the time of commission of
occurrence. Further, the incident at the first place was registered
as a case of unnatural death and was after six days of the C
occurrence converted into one under Sections 302/203/34 IPC
against the appellant and the co-accused on the disclosures made
by PWl, PW5, PW6 and PW8. Apart from the fact that the
testimony of PWS, PW6 and PW8 can by no means be construed
to be substantive in nature, these witnesses having derived the D
knowledge from PW 1, the analysis of the materials on record on
the aspect of motive as made by the Trial Court is accepted. [Para
22)(192-D-H; 193-A-C]
       2.2 The testimony of PWl with regard to the illicit
relationship between the accused persons, lack in persuasion to
conclude that the prosecution had been able to prove such             E
relationship and therefore, the motive for the murder by them.
[Para 23)(193-D]
      3. t The medical evidence to the effect that death had
occurred by asphyxia as a result of constriction of the neck and
not due to hanging by rope, though conforms to the manner of          F
exc·cution of the offence, as narrated by PWl, however in view of
inherent improbabilities and incongruities in his evidence, it is
not safe to base the conviction of the appellant and the co-accused
thereon. Dehors testimony of PWl, and the motive as alleged by
the prosecution, there is no other tangible and clinching material    G
on record in support of the charge against the appellant and the
co-accused. The inference of motive by the High Court drawn
from the evidence of PWl and PW3, in the overall perspective,
is apparently flawed. (Para 23][193-E-G]

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182            SUPREME COURT REPORTS                     [2017] l 1 S.C.R.


A           3.2 On 11 totality of the consideration of all relevant facts
      and circumstances, it is opined that the evidence of PWI, as a
      witness of incident of murder, is wholly unacceptable being fraught
      with improbabilities, doubts and oddities inconceivable with
      normal human conduct or behaviour and, thus cannot be acted
      upon as the basis of conviction. The appellant and the co-accused
B
      arc thus entitled to the benefit of doubt in lhe facts and
      circumstances of the case. [Para 24](193-H; 194-A]
           Anil Phukhan v. Sia1e of Assam (1993) 3 SCC 282 :
           [1993] 2 SCR 389; Ramji Surya Padvi and Ano/her v.
           Staie of Maharaslura (1983) 3 SCC 629 : (1983] 3
c          SCR 268; Stale of A.P. v. Patnam Anandam (2005) 9
           SCC 237; Gu/am Sarbar v. State ofBihar (2014) 3 SCC
           401 : [2013] 12 SCR 1: Lakeman Shah and another v.
           Stale of Wes/ Bengal AIR 2001 SC 1760 : 12001] 2
           SCR 1095; Vijayee Singh and others v. Stale of U.P.
D          (1990) 3 SCC 190 : (1990] 2 SCR 573 - relied on.
            A1. Narsinga Rao v. Slate of A.P. 2001 Crl.L.J. 515 -
            approved.
            Chuhar Singh v. State of Hwyana (1976) l SCC 879;
            Budha Sa()Y1 Venkata S. Rao and Others v. Slate ofA.P.
E           (1994) Suppl. 3 SCC 639; Niranjan Punja v. State of
            West Bengal (2010) 6 SCC 525 : 12010] 7 SCR 113;
            Nagraj v. State represented by Inspector of Police. Salem
            Town. Tamil Nadu (2015) 4 SCC 739 : 12015] 3 SCR
            450 - referred to.
F                            Case Law Reference

      (1976) 1 sec 879                referred to            Para 9

      (1994) Suppl. 3 sec 639         referred to            Para 9
G
      (2010] 7 SCR 113                 referred to            Para 9

      [2015] 3 SCR 450                 referred to            Para 9

      [1993] 2 SCR 389                 relied on             Para 17
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  .KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA                                  183


[1983] 3 SCR 268                    relied on                Para 17            A

c2005) 9 sec 237                    relied on                Para 17

[2013) 12 SCR 1                     relied on                Para 17

[20141 7 SCR 777                    relied on                Para 18            B

[2001) 2 SCR 1095                    relied on               Para 19

2001 Crl.L.J. 515                    approved                Para 19

[1990] 2 SCR 573                     relied on               Para 20            c
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
677 of2010.
      From the Judgment and Order dated 07.11.2007 of the Hig.h Court
of Orissa in Criminal Appeal No. 129 of200 I.                                   D
       Krishnan Venugopal, Sr. Adv., Shivcndra Singh, Ms. Dcepanshi
Jshar, Dharmi:ndra Kumar Sinha, Advs. for the Appellant.
     Shibashish Misra. Ms. Sylona Mohapatra, Advs. for the
Respondents.                                                                    E
      The Judgment of the Court was delivered by
        AMITAVA ROY, J. I. The appellant, successively convicted
by both the courts below along with one Pravati Bchera under Section
302 of the Indian Penal Code, 1860 (for Short, hereinafter to be referred
to as "lPC/Codc") along with Section 34 of the Code is in appeal seeking        F
remedial intervention.
       2. Whereas the Trial Court by the judgment and order dated
26.1.2001. as stated hereinbefore, convicted the appellant and the co-
accused Pravati Behera, the High Court by the verdict impugned, though          G
has affirmed the conviction of both, had left the co-accused at liberty to
move an application for premature release from the jail and for appropriate
orders under Sections 433 and 433-A of the Code of Criminal Procedure,
1973 (for short, hereinafter to be referred to as "Cr.P.C."). Noticeably, the

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184             SUPREME COURT REPORTS                          [2017] 1 l S.C.R.


A     appellant and co-accused had been charged along with Section 302 !PC
      for the offence under Section 203 as well but were acquitted thereof
      by the Trial Com1. Though an appeal was preferred by the State against
      such acquittal, the High Court has affirmed their exoneration as well.

             3. We have heard Mr. Krishnan Venugopal, lcarned senior counsel
B     for the appe!lant and Mr. Shibashish Misra for the respondent.

             4. The pro~ecution case mtfold~ with a written information lodged
      by Premananda Bchra (PWl2) with the police on 20.2.2000, whereby
      the unnatural death of his brother Santosh Behera by hanging from the
      roof of a shed adjacent to his (deceased) house, was reported. In the
c     course of the investigation, following the registration of said information,
      Niranjan Behera (PW I) disclosed to Daitari Bchcra (PW5) that the
      appellant along with the co-accused Pravati Bchcra had in the intervening
      night of 19/20.2.2000 mtu-dered the deceased in his house and thereafter
      had suspended his dead body from the roof of the nearby shed. PWl
D     claimed to have witnessed the incident of murder. Following this
      information, the investigation took a different turn. The appellant and the
      co-accused were arrested and eventually, charge-sheet was laid against
      them.

            5. Notably, on 26.2.2000, Gunahari Behera (PW6) and Makhan
E     Behera (PW8) also came to the police station and reported that PW I
      had disclosed to them as well to have witnessed the appellant and the
      co-accused committing murder of Santosh Behera (deceased) in his
      house and thereafter, hanging the dead body from the roof of the nearby
      shed. The investigating officer in the process of investigation, amongst
      others caused the inquest of the dead body to be made, prepared a spot
F     map Ex. P-11, effected seizure, amongst others inter alia ofa rope and
      also got the post-mortem of the dead body done before submitting the
      charge-sheet as mentioned hereinabove. The formal FIR was registered
      on 26.2.2000 under Sections 302/203 read with Section 34 !PC.

              6. At the trial, the accused persons were charged under Sections
G
      302/203/34 JPC. They having denied the allegations, were made to stand
      trial. The prosecution examined as many as 16 witnesses, and after
      recording the statements of the accused persons under Section 313
      Cr.P.C. and on a consideration of the materials on record, the Trial Court
      convicted the appellant and co-accused under Section 302 !PC read
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   KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA                                  185
               [AMITAVA ROY. J.]

with Section 34 of the Code and sentenced them to undergo imprisonment          A
for life and to pay fine of Rs. 100/-, in default to suffer R.I. for 30 days.

       7. In recording the conviction, the Trial Court laid utmost emphasis
on the testimony of PW!, who apart from narrating the incident of murder,
also deposed about the extra-marital relationship between the accused
persons, though they were related as nephew and aunt. Reliance was B
also placed on the evidence ofMusimani Behera (PW3), the mother of
the deceased, who, perceived to have hinted at well to this unacceptable
liaison. The Trial Court noted the opinion of Dr. Rupabhanu Mishra
(PW!!), who conducted the post-mortem examination that the cause of
death of Santosh Behera was asphyxia as a result of constriction of the
neck and not due to hanging by rope. The Trial Court, however discarded
                                                                            c
the prosecution case of illicit relationship between the accused persons
and the motive of murder stemming therefrom. It was however of the
view that lack of motive notwithstanding, the testimony of PW!, PW5,
PW6 and PW8 taken together proved the charge against the accused
persons and, therefore, returned the finding of guilt against them, qua D
the offences for which they had been charged.

       8. Both the appellant and co-accused preferred separate appeals
before the High Court and as hereinbefore stated, by the decision assailed,
their conviction under Section 302/34 !PC and the sentence awarded
thereupon was affirmed. The High Court, in determining so, sustained            E
the prosecution's plea of motive of murder founded on extra-marital
relationship between the accused persons and arrived at the conclusion
drawing sustenance from the evidence of PW! as well as PW3, the
mother of the deceased, who testified to have rebuked both of them for
their deplorable conduct. The High Court, as well believed the version          F
of the incident, as narrated by PW! and disclosed to PW5, PW6 and
PW8 albeit after a lapse of three days. The High Court accepted the
explanation of PW I for the delay in such disclosure that the appellant
had threatened him with dire consequences, ifhe did so.

      9. Mr. Krishnan Venugopal, learned senior counsel for the appellant       G
has emphatically urged that as the testimony of PW I, the sole eye
witness, as claimed by the prosecution, is wholly unbelievable. the
conviction of the appellant is palpably illegal and is liable to set-aside.
Apart from contending that the FIR filed after six days of the incident

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186           SUPREME COURT REPORTS                        (2017] II S.C.R.


A was inexplicably delayed rendering the prosecution case unworthy of
  any credit, the learned senior counsel maintained that the High Court
  has grossly erred in accepting that the motive behind the murder was
  the illicit relationship between the accused persons, necessitating the
  elimination of the deceased. The learned senior counsel was particularly
  critical of the unnatw11l conduct of PW 1, who incomprehensibly remained
B
  indifferent and silent though his uncle was murdered in his view and
  that the incident, according to him, ranged for about an hour. Further,
  his unexplained silence about the gruesome murder by the accused
  persons for about three days also rendered him wholly untrustw011hy,
  he urged. Mr. Krishnan argued as well that not only PW I at the relevant
c time was admittedly in an intoxicated state, his presence at the place of
  occurrence was not free from doubt. The learned senior counsel
  underlined that it being in the evidence that there were several houses
  of the close relatives of the deceased and PW 1 in the locality. the claim
  of PW I to be a silent eye witness to the incident, is wholly unbelievable.
  The learned senior counsel insisted as well that in absence of any material
D
  on record that the area was sufficiently lighted, it was wholly unacceptable
  that PW I could see the incident from his house at a distance of 15 cubits.
  In the attendant facts and circumstances, Mr. Venugopal maintained
  that the conviction of the appellant on the testimony of a solitary witness,
  whose version was laden with inconsistencies, absurdities, and
E improbabilities, is patently illegal and cannot, in any view of the matter,
  be sustained in law. He discarded the evidence of PW5, PW6 and
  PW8, relied upon by the two courts below, on the ground that their
  testimonies were wholly inconsequential being in the nature of"hearsay",
  they having derived the knowledge of the incident from PW I, as reported
  to them by him. Mr. Vcnugopal has urged that if the version of PW! is
F
  disbelieved, as it ought to be, in view of the inherent incongruities, the
  other materials on record do not unerringly evince the complicity of the
  accused persons in the offence and thus, the appellant is liable to be
  acquitted. He argued as well that the injuries enumerated in the inquest
  report and the medical evidence/post-mortem report, also are inconsistent
G and contradictory in description, thus rendering the prosecution version
  highly improbable. The learned counsel emphasised that the evidence
  on record by no means convincingly establish the illicit relationship
  between the accused persons and that the High Court did fall in error in
  accepting the same. The following decisions were cited in endorsement
  of the arguments advanced.
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   KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA                          187
               [AMITAVA ROY, J.]

      I. Anil Phukhan vs. Stttte of Assttm'                             A
      2. Ra11rji Surya Padvi and Another vs. State of .Maltarttshtra'
      3. C/111hul ~fhg/1 vs. State of Haryana 3
      4. State of A.P. l's. Patnt1111 Anandam•
      5 . .Mahamttdkhan Natltekhan vs. State of G1rjarat'               B

      6. Budha Sutya Venkata S. Rao and Others vs. Stale ofA.P.6
      7. Niranjan Panja vs. State of West .Bengal'
      8. Nt1grcrj vs. State represented by Inspector of Police, Salem
      Town, Tamil Nadu'                                                  c
       IO. In refutation. the learned counsel for the respondent-state has
asserted that the evidence of the sole eye witness PW 1 is coherent,
consistent and cogent and is fully complemented by medical evidence
and thus the prosecution having been able to prove the charge beyond
all reasonable doubt, the conviction and sentence of the appellant and D
his co-accused does not merit interference. Having regard to the vivid
narration of the incident in minute details, as provided by PW!, the courts
below were perfectly justified in relying on his sole testimony, he urged.
As the medical evidence, mentioning the cause of death, is wholly
corroborative of the version of PWI, there is no scope to doubt the
culpability of the accused persons, he argued. The learned counsel E
dismissed the demur of the defence that the evidence of PW I was vitiated
by contradictions. embellishments and inconsistencies. According to Mr.
Misra, the statement on oath of PW! is amply supported by that of
Kumari Nomi ta Behera (PW2), the daughter of the deceased and PW 12,
who, in the next morning, did detect the dead body of the deceased in a F
hanging posture from the roofofthe adjacent shed, as deposed by PWI.
As the testimony of PW I together with that of PW3, the mother of the
deceased persuasively prove the illicit relationship between the accused

'\1993) 3 sec 282
                                                                         G
'\1983) 3 sec 629
 '(1976) 1sec879
• (2005) 9 sec 231
'\2014) 14 sec 589
'1994 Supp(3) sec 639
 1
   (2010) 6 sec 525
• (20 J 5J 4 sec 739                                                     H
188            SUPREME COURT REPORTS                         [2017] l l S.C.R.



A     persons, the High Court was justified in accepting the same to be the
      motive for the offence, in the attendant facts and circumstances of the
      case, he insisted. The learned counsel for the respondent urged that as
      PW I had been threatened with death by the appellant. if he dared to
      disclose the commission ofoffence, the delay on the part of the witnes~  •
      (PW!) to cont:ide about the same in PWS, PW6 and PW8 after three
B
      days and the filing of the FIR after six days per se, is not fatal for the
      prosecution. The decision of this Court in Gu/am Sarbar vs. State of
      Bilwr' was cited to reinforce the contention that when ocular evidence
      is in conformity with the medical evidence, conviction based thereon is
      legal and valid.
c             11. To appropriately appreciate the competing assertions, it is
      expedient to evaluate the evidence having a direct bearing on the offence
      allegedly committed for the offence involved. PW I, who is the cousin
      brother of the appellant and incidentally the nephew of the co-accused
      Pruvati Behera, deposed on oath that there was a lingering love affair
D     between the accused persons from before the occurrence and that he
      had seen them in a compromising position in the house of the deceased,
      six months' prior to the incident. The witness stated that he informed
      about this to the mother of the deceased, who rebuked the accused
      persons. He stated that in the night of occurrence at 9.30 p.m., he had
      gone to witness a video show in the village, where the children of Parvati
E     Behra, the co-accused were also present. According to him, in the course
      of the show, the appellant asked him to accompany him for liquor and
      though the witness initially resisted, he eventually left the video show
      with the appellant. He stated further that they then went to the house of
      Baisakhu Behera, where the appellant purchased liquor and consumed
F     the same and forced the witness as well to drink. The witness stated
      that they then proceeded towards their respective h1>mes and when they
      were nearing their houses, the appellant concealed himself in a lane near
      the house of the witness. PW! stated that at that time, he saw the
      deceased and Pravati Behera coming out of their house to ease
      themselves. On their way back to the house, Pravati Bchera entered
G     first and when the deceased was about to enter, the appellant struck him
      twice from the back, as a result of which, he (deceased) fell down.
      According to the witness, the appellant sat on the chest of the deceased
      and pressed his neck by his hands and Pravati Bchera covered hismouth

      '(2014)3SCC401
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   KUNA @ SANJAYA BEHERA v. THE STATE OF ODISHA                               189
                [AMITAVA ROY, J.]

with her hands, as a result of which the deceased soon became suffocated      A
and died. The witness siated that thereafter the accused persons brought
a rope, tied it around the neck of the deceased and suspended the dead
body from the roofofthe adjacent shed. Thereafter, the appellant locked
Pravati Behera in the house from outside and threatened to kill him, if
he disclosed the offence to anyone, whereafter the witness returned
                                                                              B
home. PW I stated that it was three days thereafter that he narrated the
incident to PW5, PW6 and PW8.
        12. In cross-examination, the witness in substance stated that
his house, that of the deceased, PWl2 and other relatives were located
nearby and that the courtyard in between his house and that of the
deceased measured about 15 cubits. The witness conceded that there
                                                                              c
were about 150 to 200 houses adjacent to his house, situated at a distance
of 20 to 25 cubits. He further stated that at that point of time, he was
little intoxicated, and he was then inside his compound. PW l deposed
as well that though the occurrence took place for about an hour, he did
not raise any alarm asking for help. He admitted that on the next day,        D
though about 5000 people had gathered, he did not disclose the incident
either to them or to the police. He however sought to explain his conduct
by stating that he did not do so as he had been threatened by the appellant
but after three days, he gathered courage and informed PW5, PW6 and
PW8 of the incident.
                                                                              E
      13. PW3, the motherof the deceased deposed that she had rebuked
the accused persons on several occasions on noticing "secret talks'
between them. The testimony of PW5 and PW6 in essence is that on
20.2.2000, PW! disclosed to them the incident and the fact that he had
witnessed the same. PW8 stated that about 5/6 days atlcr the incident,
when he asked PW I about the same, he disclosed to him stating that           F
the appellant and Pravati Behera had committed murder of Santosh
Behera. To all these three witnesses, as stated by them, PW I disclosed
in sequence the facts, as narrated by him on oath.
       14. Dr. Rupabhanu Mishra (PW!!), who performed the post-
mo11em examination on the dead body of the deceased had apart from            G
mentioning the external injuries by way of abrasions etc. opined that
death was due to asphyxia by pressing of neck and was not due to hanging
by rope. PW 12, as already alluded to hereinabove, stated on oath that
on 20.2.2000, he had gone to the house of the deceased to hand over the
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190             SUPREME COURT REPORTS                         (2017] J 1 S.C.R.


A     keys of his Sweet Meat Shop, where the deceased was employed, but
      was told by his wife from inside the house that he (deceased) had gone
      out by locking the door from outside. The witness stated that it was then
      515.30 a.m. and when he returned with his torch light, he detected the
      dead body ofSantosh Behera hanging from the roofofadjacent shed by
      a rope. He then requested PW5 to write a report which he thereafter
B
      lodged with the police. S.I. Narendra Kumar Sarangi (PW 16) is the
      Investigating Officer, who enumerated the steps taken by him during the
      investigation and proved amongst others Ex P-11, the spot map.
            15. The accused persons in response to the questions, laying the
      incriminating evidence against them denied the correctness thereof and
c     stood by their plea of innocence.
            16. Before recording the final conclusions on the basis of the
      evidence on record, beneficial it would be to briefly note the legal
      propositions enunciated in the authorities cited at the Bar.

D            17. That conviction can be based on a testimony of a single eye
      witness if he or she passes the test of reliability and that it is not the
      number of witnesses but the quality of evidence that Is important, have
      been propounded consistently in Anil P/111khan 1, Ramji Surya',
      Patna111 Ananda111' and G11la111 Sarbar' with the apparent emphasis
      that evidence must be weighed and not counted. decisive test being
E     whether it has a ring of truth and it is cogent, credible, trustworthy or
      otherwise.
             18. That in a case where the charge is sought to be proved only
      on circumstantial evidence, motive plays an important part in order to tilt
      the scale was, amongst others underscored in llfoh11111dkha11
F     Natlreklia11 5
             19. With reference to Section 3 of the Evidence Act, which defines
      "proved", "disproved" and "not proved", this Court in Lokema11 Shalt
      a11d a11otlrer vs. State of West Be11gat 1• recalled its observations in
      M. Narsillga Rao vs. State ofA.P., 2001 Crl.LJ. 515 as hereinbelow:
G
             "A fact is said to be proved when, after considering the matters
             before it, the court either believes it to exist or considers its
             existence so probable that a prudent man ought under the
             circumstances of a particular case. to act upon the supposition

       " AIR 200 I SC 1760
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      KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA                                191
                  [AMITAVA ROY, J.]

         that it exists, (vide Section 3 ofthe Evidence Act). What is required   A
         is materials on which the court can reasonably act for reaching
         the supposition that a certain fact exists. Proofofthe fact depends
         upon the degree of probability of its having existed. The standard
         required for reaching the supposition is that of a prudent man
         acting on any important matter concerning him."
                                                                                 B
      20. Prior thereto, in VijayeeSi11glr <md others vs. State of U.P.'',
this Court dwelling on the same theme, had recorded the following
exposition:
         "28. It can be argued that the concept of 'reasonable doubt' is
         vague in nature and the standard of'burdcn ofproof' contemplated c
         under Section 105 should be somewhat specific, therefore, it is
         difficult to reconcile both. But the general principles of criminal
         jurisprudence, namely, that the prosecution has to prove its case
         beyond reasonable doubt and that the accused is entitled to the
         benefit of a reasonable doubt, are to be borne in mind. The
         'reasonable doubt' is one which occurs to a prudent and reasonable D
         man. Section 3 while explaining the meaning of the words "proved",
         "disproved" and "not proved" lays down the standard of proot:
         namely, about the existence or non-existence of the circumstances
         from the point of view of a prudent man. The section is so worded
         as to provide for two conditions of mind, first, that in which a man E
         feels absolutely certain of a fact, in other words, "believe it to
         exist" and secondly in which though he may not feel absolutely
         certain of a fact, he thinks it so extremely probable that a prudent
         man would under the circumstances act on the assumption of its
         existence. The Act while adopting the requirement of the prudent
          man as an appropriate concrete standard by which to measure F
         proof at the same time contemplates of giving foll effect to be
          given to circumstances or condition ofprobability or improbability.
          It is this degree of certainty to be arrived where the circumstances
          before a fact can be said to be proved. A fact is said to be disproved
         when the court believes that it docs not exist or considers its non- G
          existence so probable in the view of a prudent man and now we
          come to the third stage where in the view of a prudent man the
          fact is not proved i.e. neither proved nor disproved. It is this doubt
          which occurs to a reasonable man, has legal recognition in the
11
     (1990)3 sec 190                                                             H
192             SUPREME COURT REPORTS                           [2017] II S.C.R.



A            field of criminal disputes. It is something different from moral
             conviction and it is also different from a suspicion. It is the result
             of a process of keen examinat10n of the entire material on record
             by •a prudent man'."
              21. The quintessence of the enunciation is that the expression
B     "proved". "disproved" and "not proved". lays down the standard of proof,
      namely, about the existence or non-existence of the circumstances from
      the point of view of a prudent man, so much so that while adopting the
      said requirem~nt, as an appropriate concrete standard to measure "proof',
      full effect has to be given to the circwnstances or conditions of probability
      or improbability. It has been expounded that it is this degree of certainty,
c     existence of which should be arrived at from the attendant circwnstances,
      before a fact can be said to be proved.
              22. It is on the touchstone of this legal exposition that the evidence
      in the case in hand, has to be appreciated. Admittedly. PW I is the solitary
      eye witness to the incident. He is related both to the deceased and the
D     accused-appellant. Whereas the deceased is his uncle. the appellant is
      his cousin brother. He claims to have accompanied the appellant from
      the video show till the place of occurrence. At the relevant time, he
      was admittedly intoxicated. The incident, as per the prosecution version,
      occurred between I a.m. to 2 a.m. in the intervening night of 19/20.2.2000
E     in the house of the deceased which was located about 15 cubits from
      the compound where the house of PW! was situated. The spot map Ex.
      P-11 prepared by the 1.0. (PW 16) noticeably docs not mention about
      any source oflight in the locality. It docs not even indicate as to whether
      the area was lighted at the time of incident so as to make the viewing of
      the incident possible by PWl from the place, where he was located. It
F     is intriguing that though PW I claimed that the duration of the the incident
      was about one hour and that the appellant first did assault the deceased
      from behind twice on which he (deceased) fell down, whereafter he
      (appellant) sat on his chest and throttled him and that co-accused Pravati
      Behcra covered the mouth of deceased to facilitate his suffocation to
G     death, he did not utter a sound or make a shriek or raise any alarm either
      to prevent the occurrence or to muster assistance from the inhabitants
      in the locality. This is more so as he admitted that there were about 150
      to 200 inhabitants, lodging nearby apart from the fact that the houses of
      his relatives as well of the deceased were almost in the same campus.
      His plea that he did not disclose the incident to others immediately as he
H
   KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA                              193
               [AMITAVA ROY, J.]

had been threatened by the appellant does not explain or justify in any A
manner whatsoever his inexplicable silence or indifference during the
time of commission of occurrence. In the overall scenario, the plea of
the defence that the evidence of PW I is highly improbable, absurd and
doubtful, cannot be lightly brush aside more particularly in view of the
test of essentiality of the degree of certainty, necessary to accept that B
the facts narrated by this witness as proved. To recall, the incident at
the first place had been registered as a case of unnatural death and was
after six days of the occurrence converted into one under Sections 302/
203/34 IPC against the appellant and the co-accused on the disclosures
made by PW!, PWS, PW6 andPW8. Apart from the fact that testimony
of PWS, PW6 and PW8 can by no means be construed to be substantive C
in nature, these witnesses having derived the knowle\!ge from PW 1, we
are inclined to accept the analysis of t11e materials on record on the
aspect of motive as made by the Trial Court.
        23. The testimony of PW! with regard to the illicit relationship
between the accused persons, his revelation to the mother of the deceased D
that he and the co-accused were seen in a compromising position in
their house with the door open and the reprimand of the mother (PW3)
for the "secret talks" between them (accused persons) lack in persuasion
to conclude that the prosecution had been able to prove such relationship
and therefore, the motive for the murder by them. The medical evidence
to the effect that death had occurred by asphyxia as a result of constriction E
of the neck and not due to hanging by rope. though conforms to the
manner of execution of the offence. as narrated by PW!, in view of
inherent improbabilities anc1 incongruities in his evidence, we do not
consider it safe to base the conviction of the appellant and the co-accused
thereon. Dehors testimony of PW I, and the motive as alleged by the F
prosecution, there is no other tangible and clinching material on record
 in support of the charge against the appellant and the co-accused. The
inference of motive by the High Court drawn from the evidence of PW I
and PW3, in the overall perspective as discussed hercinabove, is
apparently flawed.
                                                                              G
        24. On a totality of the consideration of all relevant facts and
circumstances, we arc of the unhesitant opinion that the evidence of
PWI, as a witness of incident of murder, as projected by him is wholly
unacceptable being fraught with improbabilities, doubts and oddities
 inconceivable with normal human conduct or behaviour and, thus cannot
                                                                              H
194            SUPREME COURT REPORTS                          [2017] ll S.C.R.


A     be acted upon as the basis of conviction. The testimonies of PW3, PW5,
      PW6, PW8 and PW I 1, even if taken on their face value, fall sho1t of the
      requirement of proof of the charge beyond all reasonable doubt. The
      appellant and the co-accused are thus entitled to the benefit of doubt in
      the singular facts and circumstances of the case. The contrary view
      taken by the cowts below is against the weight of the evidence on record
B
      and the exposition of law attested by the decisions cited at the Bar and
      traversed. as hereinabove.
              25. In the result, the appeal succeeds and is allowed. As a
      consequence, the appellant is acquitted and is ordered to be set at liberty
      if not required in connection with any other case.
c
      Divya Pandey                                                 Appeal allowed.