Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 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 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 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 KUNA @ with her hands, as a result of which the deceased soon became suffocated 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 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 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, 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.
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 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 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 c c (2017] J 1 S.C.R. 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 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 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.
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/111khan1, Ramji Surya', Patna111 Ananda111' and G11la111 Sarbar' with the apparent emphasis that evidence must be weighed and not counted. decisive test being 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 Natlreklia115
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 Be11gat1• recalled its observations in M. Narsillga Rao vs. State of A.P., 2001 Crl.LJ. 515 as hereinbelow: "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 KUNA@ that it exists, (vide Section 3 of the Evidence Act). What is required 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."
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 of proof' 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 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 proof at the same time contemplates of giving foll effect to be given to circumstances or condition of probability 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- 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 c [2017] II S.C.R. 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 "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, 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 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 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 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 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 KUNA@ had been 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.
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 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 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 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 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. De hors testimony of PW I, and the motive as alleged by the 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.
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 c [2017] ll S.C.R. 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 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. Divya Pandey Appeal allowed.