Holding

A conviction cannot rest on the sole testimony of an interested witness when that testimony is inconsistent with medical evidence and lacks independent corroboration, as this creates a fundamental defect in the prosecution case.

Summary

The appellants were convicted of murder and related offences under Sections 147, 148, 149 and 302 of the Indian Penal Code based solely on the testimony of the deceased's brother, an interested witness. The brother claimed the accused fired at the victim from behind while he was running, but the post‑mortem report showed gunshot injuries only on the right shoulder and no injuries on the back or behind the shoulder. The prosecution also failed to examine three independent villagers who had arrived at the scene at the time of the assault. The Supreme Court held that the solitary testimony was wholly inconsistent with the medical evidence and lacked any independent corroboration, rendering the prosecution case fundamentally defective. Consequently, the Court set aside all convictions and acquitted the appellants.

Issues considered

Can a conviction be sustained on the sole testimony of an interested witness without independent corroboration?
Does inconsistency between a prosecution witness's account and expert medical evidence invalidate the prosecution case?
Is the withholding of independent eyewitnesses by the prosecution a fatal procedural flaw?
Should convictions under IPC Sections 147, 148, 149 and 302 be set aside on the basis of the above defects?

Legislation cited

Indian Evidence Act, 1872
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302

Subjects

murderinterested witnesscorroborationmedical evidenceinconsistencywithholding witnessesconviction set asideIndian Penal Codeevidence law

Judgment

SH. MANI RAM AND ORS. A
v.
THE STATE OF UITAR PRADESH

MAY 13, 1994

[R.M .. SAHA!, FAIZAN UDDIN AND B.L. HANSARIA, JJ.] B

Indian Penal Code, I860: SectionsI47, 148, 149 and 302.

Murder-l'rosecutio!t-Examination of interested witness-Withhold-
ing of independent witnesses--Conviction based on solitary interested wit-
ness-Held invalid.
c
Indian Evidence Ac~ 1872 :

MurdeJ-Evidence of prosecution witness--lnconsistency with medical
evidence-{}nless satisfactorily explained discredits not only evidence but also D
entire prosecution case.

In a murder trial the brother of the deceased deposed that on the
date of occurrence when he along with bis brother was returning to his
village after marketing the appellants armed with pistols and lathls,
emerged from a sugarcane field and surrounded them. On being chal· E
lenged by one of the appellants, his brother started running whereupon
two of the appellants fired at .him from behind while he was running and
rest of the appellants assaulted him with lathis which resulted in his death.
He also deposed that his cries for help attracted the attention of three
persons belonging to his village who reached the spot and saw the occur-
rence. But these persons who were independent witnesses were not ex· F
amined by the prosecution._ Moreover, the testimony of the brother of
deceased was inconsistent with medical evidence which revealed that there
was no gun shot injury either on the back or anywhere behind the shoulder
of the deceased.
G
Relying on the solitary evidence of the deceased's brother the trial
court convicted the appellants holding that bis testimony was reliable and
free from all taints. On appeal, the High Court affirmed the conviction .
•
In appeal to this Court, it was contended on behalf of tlie appellants
that the findings of the two Courts below suffer from serious infirmity and H
63
64 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A the conviction of the appellants could not be sustained becanse the tes·
timony of the brother of the deceased who was an interested witness was
not only inconsistent with medical evidence but also was without any
corroboration from independent source.

Allowing the appeal, this Court
B
HELD : 1. If the evidence of the prosecution witnesses is totally
inconsistent with the ·medical evidence this is a most fnndamental defect
in the prosecution case and unless this inconsistency is reasonably ex·
plained it is sufficient not only to discredit the evidence but the entire case•
c .i [69-D-E]
2. In the present case the evidence of the solitary witness Is wholly
inconsistent with the medical evidence, because no injury was found on the
back or back portion of the shoulder of the deceased to lend support to
his evidence. Therefore, It is unsafe to accept him as an eye .witness to the
D occurrence and base the conviction on his evidence. [69-E; Fl

3. Where the direct evidence is not supported by the expert evidence
then the evidence is wanting in the most material part of the prosecution
case and, therefore, it is difficult to convict the accused on the basis of
such evidence. [69·C·D]
E
4. None of the independent witnesses, who arrived at the place of
occurrence just at the moment when the assault was being made on the
deceased, has been examined by the prosecution. The prosecution withheld
the independent witnesses and had only chosen to examine the interested
witness who is the real brother of the deceased. There is no other evidence
F to support the prosecution case. Consequently the conviction of the appel·
tauts is set aside. [68-E; 68-F; 69-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
238 of 1993.
G
From the Judgment and Order dated 18.5.92 of the Allahabad High
Court in Cr!. A. No. 2063 of 1979.
•
M.S. Ganesh and Ms. S. J anani for the Appellants.

H Anis Ahmed Khan and A.S. Pundir for the Respondents.
MANI RAM v. STATEOFU.P. (FAIZANUDDIN,J.] 65

The Judgment of the Court was delivered by A

FAIZAN UDDIN, J. The appellants Mani Ram, Agya Ram, Ram-
jiyawan, Kewal, Sant Ram, Siyaram and Janjali were charged and tried
under Sections 147, 148. and 302/149 of the Penal Code for committing the
murder of one Basdeo at about 4.00 PM on 27.1.1978. The learned IVth B
Additional Sessions Judge, Basti in Sessions Trial No. 195/78 convicted the
appellants Mani Ram and Agya Ram Under Sections 148 and 302 read
with Section 149 of the Penal Code and sentenced them to undergo
rigorous imprisonment for two years and life imprisonment respectively
while the remaining appellants, namely, Ramjiyawan, Kewal, Santram,
Siyaram and Janjali were convicted under Section 147 and 302 read with 'C
Section 149 of the Penal Code and each one of them was sentenced to
undergo rigorous imprisonment for one year and life imprisonment respec-
tively. All the sentences were directed to run concurrently. These sentences
and convictions awarded to the appellants have been affirmed by the High
Court of Allahabad in appeal against which this appeal by special leave has D
been directed.

The prosecution case as it emerges from the FIR Ext. Ka-2 lodged
by the informant Prabhoo Nath, PW 2 on 27.1.1978 at 6.25 pm in the Police
Station, Sadar Bazar Bast! (UP) is that the appellants and deceased
Basdeo, informant Prabhoo Nath, PW 2 brother of the deceased and their E
father Bali were on enimical terms as there were criminal and civil cases
pending between them since before the occurrence, It is said that on
27.1.1978 at about 1.00 P.M. deceased Basdeo alongwith his brother Prab-
hoo, PW 2 had gone from their village Bighia to Gotwa Bazar for marketing
and while they were returning back to their village at about 4.00 P.M. and
had reached near the Government tubewell in village Kuri, all the appel- F
lants suddenly emerged from a sugarcane field and surrounded them.
Appellants Mani Ram and Agya Ram are said to be armed with country
made pistols while rest of the appellants were armed with lathis. It is said
that on the exortation of appellants Sant Ram to kill them and not to let
them escape, the appellants Mani Ram and Agya Ram opened fire at G
Basdeo with their country made pistols and the rest of the appellants
assaulted him with lathies. The cries of the informant for help attracted the
attention of Ram Pher, Bhurkul and Ram Ajore, all belonging to the village
of the informant and who were also coming behind them, who .rushed at
the spot and saw the occurrence. Thereafter the appellants made their
escape good from the place of occurrence. Informant Pr~bhoo· Nath, PW H
66 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A 2 the brother of Basdeo who was accompanying him at the time of
occurrence could not dare to come forward at the rescue of his brother
Basdeo due to the fear that he may also be shot at by the appellants.
Prabhoo Nath took injured Basdeo to the Police Station on a rickshaw
where he lodged the FIR Ext. Ka-1 regarding the occurrence.

B Injured Basdeo was sent to the Civil Hospital, Basti where he was
medically examined by Dr. Chaturvedi who found injuries on his person as
per injury report Ext. Ka-5. However Basdeo died in the hospital same
evening at 7.15 PM. Dr. S.G. Kekariwal PW 1, performed the autopsy over
his dead body and as per his post- mortem report Ext. Ka-1 found the
following injuries on his person : -
c
1. Contusion 10 cm x 8 cm face left side, just infront of left lobe.

2. Contusion 5 cm x 1.5 cm chin front c underlying fracture of
mandible front, 3 cm wide part of whole mendible front was
D separate from rest of mendible (in three pieces).

3. Lacerated wound 3 cm x 1 cm bone deep scalp left side parallel
to midline, 9 cm above left ear.

4. Lacerated wound 4 cm x 0.5 cm x bone deep scalp left side 2.5
E cm above & parallel to injury No. 3.

5. Lacerated wound 3 cm x 0.5 cm x bone deep scalp rt. side 10 cm
above rt. ear.

6. Lacerated wound 3 cm x 1 cm x bone deep, back of (ocipital
F region) 10 cm behind the left ear.

7. Multiple gun shot wounds {50 in number) in area of 17 cm x 13
cm on each rt. shoulder & upper arm front & 1st part largest
paper torn X muscles deep & smallest 0.2 cm x 0.2 cm x
superficial: irregular blackening tatcoing searching present.
G
(Emphasis supplied)

8. Abrasion 2 cm x 2 cm, chest rt. side 5 cm superolateral neeple.
•
9. Abrasion 4 cm x 3.5 cm back of et. forearm 18 cm above wrist
H jt.
MANI RAM v. STATE OF U.P. [FAIZAN UDDIN, J.] 67

10. Contusions (4 in number) in area of 10 cm x 6 cm on the back A
of forearm and wrist crossing each other c underlying fracture
of rt. radius bone 2 cm above wrist jt.

11. Abraded contusion 9 cm x 8 cm back of rt. hand.

12. Contusion c abrasion 8 cm x 5 cm left arm lower part, oblique B
back & outer part just above elbow.

13. Contusion multiple (6 in number) in area of 17 cm x 1 cm left
from back & outer part crossing each other.

14. Multiple contusions in one of 14 cm x 11 cm back of left hand c
& wrist jt.

15. Lacerated wound 2 cm x 0.5 cm x bone deep left leg front 20 cm
below knee jt.

16. Abrasion 2 cm x 0.5 cm left leg front 8 cm below knee. D

17. Contusion 10 cm x paper torn front & lower part of left ·leg
including on paper torn c underlying fracture of left leg lower
part, Both bones paper torn.

18. Multiple Contusions (5) in area of 11 cm x 8 cm rt. leg x paper E
torn.

19. Abrasions 2 cm x 0.3 cm rt. leg front, 14 cm above ankle jt. paper
torn.

According to the evidence of Dr. Tekriwal, PW 1, injury No. 7 alone F
__,
was caused by a fire-arm and the remaining injuries were caused by hard
and blunt objects like lathi. Ext. Ka-1 is the post-mortem report prepared
and signed by him. In the opinion of the doctor the death of the deceased
was due to the injuries on his head as well as due to the unconsciousness
of the victim. G
At the trial all the appellants adjured their guilt and pleaded that
.. they were falsely implicated due to enmity.

The learned trial Judge recorded the conviction of the appellants on
the solitary evidence of Prabhoo Nath, PW 2, the brother of the deceased H
68 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A by holding that his testimony was reliable and free from all taints. The High
Court also on perusal of the testimony of l'rabhoo Nath, PW came to the
conclusion that his evidence is free from contradiction and he being a
reliable witness to the occurrence, conviction of the appellants can be
based on his sole testimony.

B Learned counsel appearing for the appellants strenuously urged that
Prabhoo Nath, PW 2 is none else but the real brother of the deceased and,
therefore, he is a highly interested witness and as such his sole testimony
should not be accepted in convicting the appellants without any corrobora-
tion from independent source. He also submitted that the evidence of the
solitary eye witness Prabhoo Nath is not consistent with the medical
c evidence which fact by itself is sufficient to hold that he is not an eye
witness to the incident but a got up witness which fact has been ignored
by both the Courts below and, therefore, the findings of the two Courts
below suffer from serious infirmity and the conviction of the appellants
could not be sustained. On a close scrutiny of the evidence of Prabhoo
D Nath, PW 2 and the evidence of Dr. Tekriwal, PWl, we find .that there is
great force in the aforesaid submissions.

It clearly turns out from the evidence of Prabhoo Nath, PW 2 that
Ram Pher, Bhurkul and Ram Ajore of his village had also arrived at the-
place of occurrence just at the moment when the assault. was being made
E on his brother deceased Basdeo but none of these independent witnesses
have been examined by the prosecution. Prabhoo Nath, however, stated
that the witnesses Ajore could not appear as a witness in this case because
a criminal case against him was going on. He also deposed that Ram Pher
and Bhurkul also could not appear as witnesses due to fear and having
been paid for not appearing as a witness. This statement of Prabhoo Nath,
F PW 2 is only speculative as according to his own statement he did not meet
any of these witnesses nor this information was based on any source
whatsoever. It is thus clear that the prosecution withheld the independent
witnesses and had only chosen to examine the interested witness Prabhoo
Nath, PW2, who is the real brother of the deceased.
G
Apart from the above facts it may be pointed out that Prabhoo Nath,
PW2 admitted in cross-examination that soon after the appellants emerged
from the sugarcane field and when the appellant Santram challenged
Basdeo, he started running and at that point of time the appellant Mani •
Ram was standing at a distance of 60-70 yards towards east-west and the
H appellant Agya Ram who was standing at distance of about 4-5 Ft. from
MANI RAM v. STATEOFU.P. IFAIZANUDDJN,J.] . 69

Mani ·Ram chased Basdeo and both of them fired at him from their kattas A ·
while the deceased was running. This statement clearly goes to show that
the deceased was fired at from behind when he was running and the
appellants Mani Ram and Agya Ram were chasing him. That being so the
bullet or pallet injuries should have been caused on his back or at least
somewhere behind his shoulder but as stated earlier according to the
medical evidence and the post-mortem report injury No. 7 was caused by B
a fire-arm. A perusal of injury No. 7 will distinctly go to show that there
were multiple gun shot wounds on a area 17 x 13 ems right shoulder and
front of upper arm and outer part but there was no injury either on the
back or anywhere behind the shoulder. There is no other gun shot injury
except injury No. 7. Neither the doctor who first examined the injured C
Basdeo nor the doctor who performed the post-mortem found any injury
on the back or back portion of the shoulder to lent support to the evidence
of the sole eye witness Prabhoo Nath. It is well settled by long series of
decisions of this Court that where the direct evidence is not supported by
the expert evidence then the evidence is wanting in the most material part
of the prosecution case and, therefore, it would be difficult to convict the D
accused on the basis of such evidence. If the evidence of the prosecution
witnesses is totally inconsistent with the medical evidence this is a most
fundamental defect in the prosecution case and unless this inconsistency is
reasonably explained it is sufficient not only to discredit the evidence but
the entire case. In the present .case as noticed above the evidence of the
solitary witness Prabhoo Nath is wholly inconsistent with the medical E
evidence and, therefore, it is difficult to accept him as an eye witness to
the occurrence and therefore it would not be safe to base the conviction
on the solitary evidence of such a witness. There is no other evidence to
support the prosecution case. Consequently the conviction of the appel-
lants deserve to be set aside.
F
IIJ the result the appeal succeeds and is hereby allowed. The convic-
tion of the appellants Mani Ram and Agya Ram under Sections 148 and
302/149 of the Penal Code with sentences thereunder is set aside. The
conviction of the appellants Ramjiyawan, Kewal, Santram, Siyaram and
Janjali under Section 147 and 302/149 with sentences thereunder is also set G
aside and all the appellants are acquitted of the offences charge with. If
the appellants are not required in any other offence they shall be released
forthwith.

T.N.A. Appeal allowed.