[41 Yr Old Murder Case] Testimony Of Sole Eyewitness Not Reliable: Allahabad HC Sets Aside Convict's Life Sentence

The Bench of Justice Manoj Misra and Justice Sameer Jain, in its analysis of the facts, circumstances, and evidence adduced in the case, found that it was not safe to rely on the testimony of the only eyewitness of the incident, PW­1, who accompanied the deceased just before the incident.

The facts in brief 

An FIR in the matter was lodged by Nabi Baksh (PW-1) who alleged that on September 4, 1980, at about 8.00 PM his son Nurul Islam (PW-2) informed him that when he (Nurul Islam) was returning back to Village along with Sheikh Mohd. Naqi (deceased), the accused persons (3 in number) including the surviving appellant no. 1 (Gulab) committed his murder. 

In the FIR, Nabi Baksh (PW-1) stated that he used to accompany the deceased to Birapur on a daily basis but, on the date of the incident, he could not go as he had some house repair work, therefore, he sent his son Nurul Islam (PW-2) along with the deceased.

In essence, the case of the prosecution relied heavily upon Nurul Islam (PW-2), due to the fact that he was the only eyewitness of the incident. 

Also, the PW-1 proved the enmity between co-accused (Ram Awadh and Ram Kripal) with the deceased in connection with some property dispute, however, he specified that the surviving appellant no. 1(Gulab) had no direct enmity with the deceased.

Court's observations

Since PW-2 was the sole eyewitness of the incident, the Court had to examine his testimony in-depth. At the outset, the Court observed that the conviction on the basis of the testimony of sole eye witness is permissible provided his evidence is free of any blemish or suspicion and impresses the Court as wholly truthful, reliable, and natural.

Now, the Court noted that as per PW-2 (who accompanied the deceased), on the date of the incident, as soon as he saw the accused persons with arms, having bodily lifted the deceased into the Millet field and assaulting him, he affected his escape from the spot and ran for his life and reached back to his home in two hours.

Against this backdrop, the Court seriously doubted the claim of PW-2 that he ran away from the spot to the safety of his home and took about 2 hours to reach. Importantly, the Court observed thus:

"All of this suggests that the place of occurrence was not that far from the residence of the deceased as to take PW-2 two hours to reach home, whatever the route he might take. This throws serious doubt whether he was with the deceased or loitering somewhere else...when even elderly persons could cover double the distance, that is between Birapur and the home of the deceased in 20 to 25 minutes. Thus, there arises a serious doubt as to whether PW-2 was with the deceased at the time of the incident."

Further, regarding the injuries inflicted on the deceased, the Court found a contradiction in what PW-2 claimed and what the doctor opined in his post mortem report. 

Essentially, as per PW-2, surviving appellant no.1 Gulab was having 'Gandasa' in his hand while other co-accused were having axe and spear respectively and they all assaulted the deceased whereas co-accused Nanhoo Singh caught hold his legs. Against this backdrop, taking into account the post mortem report, the Court remarked thus:

"...all the five injuries sustained by Sheikh Mohd. Naqi (deceased) were on his face and head. It is hard to believe that if three persons having deadly weapons assault a person then all the injuries sustained by him would be on the face and head and not elsewhere, particularly, when the victim is pinned down and the whole of his body is available to inflict wounds. In case of indiscriminate assault by weapons like Gandasa, axe and spear, ordinarily, injuries would be found all over the body and not only on the face and head."

Against this backdrop, the Court found that the testimony of Nurul Islam (PW-2) as not trustworthy and opined that it does not inspire our confidence as to form the sole basis of conviction.

The Court also didn't find justification in the delay of about five hours in lodging the FIR from the time of the incident, as the Court noted, it casts doubt on the prosecution case, especially when the police station was hardly two miles from the place of incident.

Consequently, the appeal was allowed. The judgment and order of conviction, as well as sentence recorded by the trial court, passed by Special Judge/Additional Sessions Judge, Allahabad in September 1985 under Sections 302/34 IPC as against the surviving appellant (Gulab) was set aside.

The appellant (Gulab, who is on bail) was acquitted of all the charges for which he has been tried.