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Ram Awadhesh Tiwary And Ors vs The State Of Bihar on 29 January, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.892 of 2016
Arising Out of PS. Case No.-10 Year-2010 Thana- PAROO District- Muzaffarpur

1. Ram Awadhesh Tiwary, son of Late Raghunath Tiwary.

2. Gayatri Devi, wife of Sri Ram Awadhesh Tiwary

3. Subhash Tiwary, son of Sri Ram Awadhesh Tiwary.
All resident of Village Bishunpur Jeevnarain, Police Station Paroo, in the
district of Muzaffarpur.

… … Appellant/s
Versus
The State of Bihar … … Respondent/s

Appearance :

For the Appellant/s : Mr. Akhileshwar Prasad Singh, Sr. Adv.

Mr. Bimal Kumar, Adv.

Mr. Surendra Prasad Singh, Adv.

For the State : Mr. Binod Bihari Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 29-01-2019

1. Appellants, Ram Awadhesh Tiwary, Gayatri

Devi and Subhash Tiwary have been found guilty for an offence

punishable under Section 304B/34 of the IPC and each one has

been sentenced to undergo R.I. for 10 years as well as to pay fine

appertaining to Rs.25,000/- in default thereof to undergo R.I. for

two years vide judgment of conviction dated 30.08.2016 and order

of sentence dated 03.09.2016 passed by Additional Sessions

Judge-XII, Muzaffarpur in Sessions Trial No.680/2003.

2. Madhusudan Tiwari (PW.7) gave his fardbeyan

on 27.01.2010 at about 10:00 PM at the house of Ram Awadhesh

Tiwari (appellant no.1) near the dead body of his daughter Rinku,

wife of Subhash Tiwary disclosing therein that his daughter Rinku

Devi has been married with Subhash Tiwary in the year 2004 and
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at that very occasion he had gifted the valuables according to his

means. After marriage, his daughter come to her Sasural.

Spending short span of time at her Sasural her husband, mother-

in-law, father-in-law, Bhaisur and Debar began to torture her for

procurement of demand of dowry and having non-fulfillment

thereof lastly, they ousted her and for that, his daughter had

instituted a case of torture against them which is still pending.

However, at the intervention of Panches, his daughter was taken

away to her Sasural and during course of stay, she begotten a

daughter. Subsequently thereof, his daughter has again been

subjected to torture by her husband, father-in-law, mother-in-law,

Bhaisur, Debar along with other family members and at that very

moment, they demanded Rs.50,000/- in cash as well as a splendor

motorcycle. Because of the fact that he was unable to fulfill their

demand and on account thereof, his daughter was severely

tortured. Lastly, his son-in-law, Subhash Tiwary, got himself

remarried. Even thereafter, his daughter was continued with

torture and cruelty. Today about 04:00 PM his daughter

telephonically informed that her mother-in-law, father-in-law,

Bhaisur and Debar are severely assaulting her. After few hours, at

about 06:00 PM somebody from her Sasural village has informed

him telephonically that her husband, mother-in-law, father-in-law,
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Debar, Bhaisur caused her murder by burn after sprinkling K.oil as

well as litting fire. He along with his family members rushed to

the place. After arrival, they have seen all the family members

absconding. Dead body of his daughter was lying over chowki in

burnt condition. On query he came to know that his daughter has

been murdered by her husband Subhash Tiwary, mother-in-law

Gayatri Devi, father-in-law Ram Awadhesh Tiwary, cousin Ram

Pravesh Tiwary, Ramadhar Tiwary, Anita Devi, Shekhar Tiwari,

Baby Devi, second wife of Subhash Tiwary.

3. After registration of Paru P.S. Case no.10/2010

investigation commenced and after concluding the same, charge

sheet has been submitted facilitating the trial, meeting with the

ultimate result, subject matter of instant appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of

the Cr.P.C. is of complete denial of the occurrence. It has further

been pleaded that deceased died of natural death but, the

prosecution party being frustrated as they failed to squeeze the

exorbitant demand, got this case filed with false and frivolous

allegation. Then there happens to be specific plea with regard to

other accused (since acquitted) that they were separate in mess

and business from the family of these accused persons and on that
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very score two witnesses that means to say DW.1 Rajesh Kumar

and DW.2 Dinesh Kumar Pathak have been examined.

5. In order to substantiate its case altogether eleven

Pws have been examined on behalf of prosecution who are PW.1-

Harendra Singh, PW.2-Narendra Singh, PW.3-Sanjay Kumar

Singh, PW.4-Shambhunath Tiwary, PW.5-Devendra Singh, PW.6-

Kabindra Singh, PW.7-Madhusudan Tiwary, PW.8-Shyam Nandan

Jha, PW.9-Dr. Bipin Kumar, PW.10-Krishna Nand Tiwary, PW.11-

Muneshwar Das. Side by side has also exhibited the Ext.1 Series-

Signature of relevant officials informant over the fardbeyan,

formal FIR, Ext.1/1-is fardbeyan, Ext.2-Formal FIR and Ext.3-

postmortem report. As stated above, two Dws DW.1-Rajesh

Kumar, DW.2-Dinesh Kumar have been examined but their

evidences are worthless for the present purpose.

6. The learned counsel for the appellant has

submitted that virtually it happens to be a case of no evidence and

that being so, the judgment of conviction and sentence recorded

by the learned lower court is not at all maintainable. In order to

buttress such plea, it has been submitted that right from PW.1 to

PW.6 have been declared hostile. They have not supported the

case of the prosecution. PW.8 is the formal witness and the same

status also happens to be with regard to PW.9 Dr. Bipin Kumar,
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PW.11-Muneshwar Das is the part I.O. who had simply submitted

charge sheet. That means to say apart from aforesaid status of the

witnesses as indicated herein above, the doctor who held

postmortem has not been examined nor the I.O. In the aforesaid

background, it has been submitted that only two witnesses that

means to say PW.7 the informant and PW.10 his son-in-law

remain who too, after going through their cross-examination,

failed to substantiate the same. That being so, the judgment of

conviction and sentence recorded by the learned lower court is fit

to be set aside.

7. On the other hand, the learned APP while

controverting the submission having been made at the end of the

appellant has submitted that there happens to be no denial at the

end of the appellant that deceased died at their place by burn,

within seven years of marriage. It has also been submitted that

PW.7 and PW.10 have visited the place of the accused persons and

they found the dead body of the deceased in burnt condition. In

likewise manner appellants have not controverted the pendency of

criminal case having at the end of the deceased under section

498A along with other allied section prior to present episode and

that being so, all the ingredients prescribed for attracting the

section 304B of the Evidence Act is found duly satisfied.
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Furthermore, in the aforesaid background the appellants were

under obligation in terms of Section 113B of the IPC to rebut the

allegation which they failed and on account thereof, the judgment

of conviction and sentence recorded at the end of the learned

lower court is fit to be confirmed.

8. In Jagjit Singh v. State of Punjab reported in

AIR 2018 SC 5719, it has been held:

“24. A reading of Section 304-B of the IPC along with
Section 113-B of the Evidence Act would establish that
once the prosecution shows that soon before the death of
the wife, she has been subjected to cruelty or harassment
for or in connection with any demand for dowry, the
court shall presume that such person caused the dowry
death within the meaning of Section 304-B IPC. The
words ‘shall presume’ in Section 113-B of the Evidence
Act, while it mandates that the Court is duty bound to
proceed on the basis that the person has caused the
dowry death, the presumption is rebuttable and it is open
to the relative to prove that the ingredients of Section
304-B IPC are not satisfied. See in this regard, the
following statement of law contained in the case of G.V.
Siddaramesh v. State of Karnataka 2010 (3) SCC 152:

“26. Section 113-B of the Evidence Act raises a
presumption against the accused and reads:
“113-B. Presumption as to dowry death – When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman had been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the court shall presume that such
person had caused the dowry death.

Explanation. – For the purposes of this section, ‘dowry
death’ shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860).”

A reading of Section 113-B of the Evidence Act
shows that there must be material to show that soon
before the death of woman, such woman was subjected
to cruelty or harassment for or in connection with
demand of dowry, then only a presumption can be drawn
that a person has committed the dowry death of a
woman. It is then up to the appellant to discharge this
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presumption.”

25. We may also notice the statement of law
contained in the decision of this Court in the case of
Ashok Kumar v. State of Haryana reported in 2010
(12)SCC 350 which reads as under:

“24. Of course, deemed fiction would introduce a
rebuttable presumption and the husband and his relatives
may, by leading their defence and proving that the
ingredients of Section 304-B were not satisfied, rebut
the same. While referring to raising of presumption
under Section 304-B of the Code, this Court, in
Kaliyaperumal v. State of T.N.;(2004) 9 SCC 157: 2004
SCC (Cri) 1417, stated the following ingredients which
should be satisfied: (SCC p. 162, para 4)
“(1) The question before the court must be whether
the accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if
the accused is being tried for the offence under Section
304-B IPC).

(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her
death.”

9. In the aforesaid background, the obligation

having over the prosecution is to tender evidence with regard to an

offence punishable under section 304B of the IPC on following

aspect.

(a) death should be within seven years of
marriage

(b) By bodily injury or burn or otherwise than
normal circumstance.

(c) Soon before her death she was subjected to
torture.

(d) The aforesaid torture should be with regard
to demand of dowry.

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(e) By her husband or relative of the husband.
If the aforesaid ingredients are found duly substantiated

at the end of the prosecution then, in that circumstance, in terms of

Section 113B of the Evidence Act, it would be deemed to be a

dowry death and such presumption is to be rebutted by the

accused persons to the extent of preponderance of probability. If

succeeds then in that circumstance, they would be entitled for

acquittal otherwise, under the banner of legal fiction presumption,

will go against them whereunder they are to be convicted and

sentenced for the dowry death.

10. Now coming to the facts of the case the learned

counsel for the appellant rightly pointed out that PW.1 to PW.6,

the co-villager of the appellants did not support the case of the

prosecution so, declared hostile but, they have not even cross-

examined by the appellants in order to procure cause of death of

deceased. Being co-villager it was expected at their end at least at

the end of the appellant to have a positive evidence during course

of cross-examination that deceased died of natural

death/accidental death.

11. Admittedly doctor has not been examined. The

postmortem report has been brought up on record through PW.9, a

doctor of the same institution. However, during course of his

evidence, prosecution failed to bring on record the ingredients
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whereunder his evidence could have been admissible in the eye of

law more particularly under section 32 of the Evidence Act, and

those are Prosecution could not bring on record that doctor

Mustaque Ahmad had retired, whereabout is not known whether

he died and so, postmortem report could not be said to be

admissible in the eye of law. However, from the evidence,

statement recorded under Section 313 Cr.P.C, it is evident that

death by burn at their place is not at all denied by the appellants.

That being so, non-examination of doctor is not at all found

effaceable to the prosecution. Furthermore, it is evident that I.O.

has not been examined. Defence could not be able to bring on

record, even during course of argument that due to non-

examination of the I.O. their interest has been prejudiced.

Contrary to it, it is evident that on account of witnesses turning

hostile, the interest of the prosecution is found prejudiced. Apart

from the same, from the evidence of PW.7 as well as PW.10 who

had deposed on merit of the case, there happens to be no

contradiction or embellishment and so non-examination of I.O.

could not be found a dent in the prosecution case coupled with the

fact that neither manner nor P.O. has been disputed. InBaldev

Singh v. State of Haryana reported in 2016 Cr.L.J. 154, it has

been held:

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“16. Contention at the hands of the learned
Senior Counsel for the appellant is that non-
examination of Chander Singh-SI who
prepared rukka and who investigated the case
raises serious doubts about the prosecution
case. Material on record would show that
Chander Singh-SI who investigated the case
was not examined by the prosecution in spite of
several opportunities. No doubt, it is always
desirable that prosecution has to examine the
investigating officer/police officer who
prepared the rukka. Mere non-examination of
investigating officer does not in every case
cause prejudice to the accused or affects the
credibility of the prosecution case. Whether or
not any prejudice has been caused to the
accused is a question of fact to be determined
in each case.”

12. Now remains the evidence of PW.7 and PW.10.

PW.7 is the informant. During his examination-in-chief he has

stated that Rinku was his daughters he was married with Subhash

Tiwary in the year 2004. After marriage, she had gone to her

Sasural. She stayed for six months in congenial atmosphere at her

Sasural but, thereafter, father-in-law, Ram PraveshTiwary, his

wife, Ram Awadhesh Tiwary, Ramadhar Tiwary advanced and

began to insist upon cash, articles as well as a vehicle and for that

fact they began to torture her. His daughter informed him. He

shown his inability to fulfill the demand on account of financial

crunch. During midst thereof, his daughter begotten a girl child.

After 3-4 months of birth of girl, his son-in-law Subhash Tiwary

remarried with a girl of village-Bangra Paharpur. Subhash Tiwary

remarried after three years of marriage with his daughter. Even
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then his mother-in-law, father-in-law and husband continued with

severely torturing her whereupon, his daughter in order to save

herself, came at his place. Then thereafter his daughter had filed a

case at Hajipur court against them. After institution of the case,

the accused persons undertook to keep her in cordial, congenial,

harmonious atmosphere whereupon, Bidai was effected. 5-6

months after the Bidai, somebody of her Sasural village informed

over phone that she has been murdered. Then thereafter, he along

with others rushed to the Sasural of his daughter where, he found

all the family members absconding. Dead body of his daughter

was inside a gunny bag over a chowki. That bag was opened and

then, the dead body of his daughter was taken out. She was naked.

Hands and legs were tied. Then he gone to police station. Gave

fardbeyan to the Darogaji (exhibited) identified the accused.

During cross-examination at para-2 he has stated that he is unable

to disclose the day as well as date of the marriage of his daughter

but it was month of Asardh. He is unable to disclose the date of

his daughter’s death as, he is not remembering. Then has stated

that in his presence also accused persons have demanded dowry.

In para-3 he has stated that he is unable to disclose the date, time

and the year of demand. He had not reported the matter to

anybody regarding demand of dowry. The case having instituted at
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Hajipur was compromised. Since the day of remarriage by

Subhash Tiwary there was no demand. Ram Pravesh lives with his

son-in-law. At para-4 he has denied the suggestion that Ram

Pravesh Tiwary happens to be separate from his son-in-law for the

last 20 years. He further stated that he is unable to disclose who

had informed regarding death of his daughter. When he reached at

the Sasural of his daughter at that very time, none of the villagers

were present. In para-5 he said that he had not stated before the

police that his daughter was naked and his dead body was

confined in a bag. Then had denied the suggestion that it is wrong

to say that accused persons have not demanded dowry as well as

tortured the deceased. Then had denied the suggestion of meeting

with natural death and on account of extraneous consideration,

this case has been instituted.

13. PW.10 has stated that deceased Rinku Devi was

his sister-in-law who was married with Subhash Tiwary on

27.06.2004. After marriage, she had gone to her Sasural where she

was allowed to stay in congenial atmosphere only for short time.

Then thereafter, Ram Aadhar Tiwary, Ram Awadhesh Tiwary,

Ram Pravesh Tiwary, Gyatri Devi, Anita Devi, Baby all began to

physically torture her for dowry. About one and half years-two

years after her marriage Rinku Devi was ousted from her Sasural
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on account of non-fulfillment of demand of dowry whereupon she

came to her Maika. Subsequently thereof, Rinku Devi filed a case

against the accused persons at Hajipur court with regard to torture

having inflicted upon her for procurement of dowry. Later on, that

case was compromised and in pursuance thereof, Rinku gone to

her Sasural. Rinku Devi had begotten a girl. On 27.01.2010 at

about 06:00 PM there was a telephonic call from her Sasural to his

father-in-law with regard to commission of murder of Rinku after

tying her leg, hands. Maksudan Tiwary, his father-in-law informed

him whereupon he rushed to place of his father-in-law and then,

they all came to the Sasural of Rinku Devi, where they have seen

dead body of Rinku Devi in burnt condition, kept over chowki.

One bag was kept there. None of her Sasuralwala was present.

One old female was carrying daughter of Rinku Devi. Police was

informed. Police came, recorded fardbeyan of his father-in-law

over which he had put his signature, identified. (exhibited).

Identified the accused. During cross-examination at para-2 he has

stated that the house of Subhash lies at village Bishanpur lying

under Paru P.S. while his house at village Manikpur Pakri under

Lalganj police station. In para-3 he has stated that occurrence had

not taken place in his presence. He got information from his

father-in-law regarding the occurrence over phone. Then has
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disclosed the mobile number of his father-in-law. He had received

information at about 06:00 pm and within 15-20 minutes he

reached at his Sasural. Then has stated that he met with Rinku 3-4

times after the marriage. Firstly he met 3-4 days after the marriage

at her Sasural. At that very time Rinku was happy. He returned

back on the same day. She had not complained on that day. About

a month thereafter he had gone to her Sasural. At that very time

also Rinku had not complained anything. Lastly, he had gone there

after her death. Then has disclosed that he has got knowledge that

all the accused persons are joint. At para-4 he denied the

suggestion that they are separate in mess and business. In para-5

he has stated that when he had gone to Sasural of deceased on

getting an information, he had not met with any villagers. He has

further stated that Rinku had begotten a girl about one and half

month and two months after her escape. In para-6 he has stated

that at the time of death of Rinku, her daughter was aged about 3

years. He has further stated that the case which was instituted at

Hajipur was compromised. He has further stated that he is not

possessing relevant document. He has further stated that he had

seen the chowki which was not burnt over which burnt dead body

was kept. He is unable to disclose name of old lady who was

carrying daughter of the deceased. He has further stated that he
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was present at the time of recording of fardbeyan. Then has denied

the suggestion that on account of being son-in-law of the

informant, he has deposed falsely. He has again denied the

suggestion that Rinku was never tortured for demand of dowry.

14. From the evidence available on the record it is

evident that institution of a case by the deceased at Hajpur court

has not been denied nor event of compromise and then thereafter,

the Bidai. In likewise manner there happens to be no denial that

after 5-6 months thereafter she died. There is no denial that

Subhash Tiwary had not remarried during lifetime of Rinku Devi.

There happens to be no denial that Rinku Kumari had not died due

to burnt within seven years of marriage. Further from the evidence

of PW.10, it is evident that the chowki over which dead body of

Rinku was kept was not burnt that means to say P.O. was else

where and then dead body was taken to chowki. There happens to

be no denial/controvert that at the time of arrival of prosecution

party, police officials, they were present (conduct). There happens

to be no explanation with regard to death. Furthermore, there

happens to be no cross-examination over the demand of dowry

save and except from the evidence of PW.7 at para-3 that he is

unable to disclose the date year of the demand and further, he had

not informed anybody with regard thereto. However, that part
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could not be found averse to prosecution as, subsequently thereof

she was kicked out from her Sasural on account of non-fulfillment

of demand of dowry and for that case was instituted which, later

on compromised.

15. In Gian Chand others v. State of Haryana

reported in 2013(4) PLJR 7 (SC) it has been held it has been

held:

“11. The effect of not cross-examining a
witness on a particular fact/circumstance has
been dealt with and explained by this Court in
Laxmibai (Dead) Thr. L.Rs. Anr. v.

Bhagwanthuva (Dead) Thr. L.Rs. Ors.,
AIR 2013 SC 1204 observing as under:

“31. Furthermore, there cannot be any
dispute with respect to the settled legal
proposition, that if a party wishes to raise any
doubt as regards the correctness of the
statement of a witness, the said witness must
be given an opportunity to explain his
statement by drawing his attention to that part
of it, which has been objected to by the other
party, as being untrue. Without this, it is
not possible to impeach his credibility. Such
a law has been advanced in view of the
statutory provisions enshrined in Section 138
of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as
regards information tendered in evidence by
him during his initial examination in chief, and
the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which
permits a witness to be questioned, inter-alia,
in order to test his veracity. Thereafter, the
unchallenged part of his evidence is to be
relied upon, for the reason that it is
impossible for the witness to explain or
elaborate upon any doubts as regards the
same, in the absence of questions put to him
with respect to the circumstances which
indicate that the version of events provided by
him, is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must
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provide adequate opportunity to the witness in
the witness box, to give a full and proper
explanation. The same is essential to ensure
fair play and fairness in dealing with
witnesses.”

(Emphasis supplied)”

That means to say, in order to demolish the evidence

of a particular witness on a particular point, that witness has to be

cross-examined on that very score otherwise it will tantamount to

an admission at the end of the adversary.

16. In the aforesaid background, now the evidence

of DWs have to be seen. DW.1 is the Rajesh Kumar who claimed

to be Samiti Sadasya of the aforesaid panchayat and on that very

score, he has come to depose that the family of accused were

separate in mess and business but he has not spoken a word with

regard to the occurrence in question. Even during course of cross-

examination he has stated that he has got no knowledge with

regard to the present occurrence.

17. DW.2 Dinesh Kumar Pathak has, during course

of examination-in-chief has admitted that Rinku was married with

Subhash Tiwary in the year 2004. He was one of the negotiator.

He talked with Awadhesh Tiwary who happens to be father of the

boy. He has further stated that brother of Awadhesh Tiwary, Ram

Pravesh Tiwary, Ramadhar Tiwary have not indulged themselves

in negotiation. He has further stated that brother of Ram
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Awadhesh Tiwary are separate. He has further stated that Ram

Awadhesh Tiwary had not demanded dowry at the time of

negotiation but he is unable to disclose how Rinku died. His father

had not disclosed to him. During cross-examination, he has stated

that he is unable to disclose how many brothers Madhusudan has.

In likewise manner he is unable to say how many children

Madhusudan has. In para-3 he has stated that he was not told by

any body with regard to the occurrence. Then has denied the

suggestion that in order to help accused persons, he has deposed

the same. From evidence of both the DWs, it has became

abundantly clear that they did not stood test to the extent of

rebuttal.

18. In Rupinder Singh Sandhu vs The State Of

Punjab and Ors. reported in 2018 Cr.L.J. 2935, it has been held:

“38. The fact that PWs 3 and 4 are related to
the deceased Gurnam Singh is not in dispute.
The existence of such relationship by itself
does not render the evidence of Pws 3 and 4
untrustworthy. This Court has repeatedly held
so and also held that the related witnesses are
less likely to implicate innocent persons
exonerating the real culprits.”

19. In Kuna @ Sanjaya Behera vs The State of

Odisha reported in 2018 Cr.L.J 1143, it has been observed as

follows:

“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
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number of witnesses but the quality of evidence
that is important, have been propounded
consistently in Anil Phukhan(AIR 1993 SC
1462), Ramji Surya (AIR 1983 SC 810, Patnam
Anandam (AIR 2005 SC 764) and Gulam
Sarbar (2013 AIR SCW 5848) 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.”

20. From the evidence as discussed herein above the

case is found duly proved. Consequent thereupon, this appeal sans

merit and is accordingly dismissed. All the appellants are under

custody which they will remain till saturation of the sentence

inflicted by the learned lower court.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
AFR/NAFR AFR
CAV DATE NA
Uploading Date 05.02.2019
Transmission Date 05.02.2019

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