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Reportable  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 679 OF 2013

Deny Bora ..Appellant

VERSUS

State of Assam ..Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal is preferred under Section 19 of the  

Terrorist  and  Disruptive  Activities  (Prevention)  Act,  1987  

(“TADA”  for  short)  assailing  the  judgment  passed  by  the  

Designated Court, Guwahati in TADA Sessions Case No. 47 of  

2001,  whereby  the  Designated  Court  has  acquitted  the  

Appellant  under  TADA  on  the  foundation  that  there  is  no  

material to implicate him under the provisions of TADA and  

found that there is adequate material to convict him under  

Section 302 of the Indian Penal Code, 1860 (“IPC” for short)

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and accordingly recorded the conviction and sentenced  

him to undergo rigorous imprisonment for  life with fine of  

Rs.50,000/-,  in  default,  to  suffer  further  rigorous  

imprisonment for five years.  

2. The prosecution case, as unfolded, is that on 2.3.1991  

about 6.30 p.m., the deceased, Dr. Swapan Sathi Barman, a  

medical practitioner,  while attending to the patients in his  

clinic,  was shot by two unidentified youths from the point  

blank range as a consequence of which he breathed his last.  

An FIR was lodged by one Kumud Bora on the following day  

i.e.  3.3.1991  at  Jamuguri  police  station  under  Sonitpur  

district  and on the basis  of  the said FIR Station Case No.  

20/91 u/s  302/34 IPC read with Sections 3/4 of  TADA was  

registered which set the criminal law in motion.   

3.  During investigation, certain incriminating documents  

belonging  to  Assam  United  Reservation  Movement  were  

recovered from the residence of  one Martan Dey of  Tupia  

Gaon.    The  Investigating  Officers  examined  number  of  

witnesses who had heard about the occurrence from the wife  

and  daughter  of  the  deceased  and  on  04.11.1993,  they  

recorded  the  statement  of  Suren  Hazarika,  PW-14,  under  

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Section 161 CrPC.  His statement under Section 164 CrPC  

was also recorded.  Thereafter, on the basis of the statement  

of  Hazarika,  steps  were  taken  to  apprehend the  accused-

appellant,  and  eventually  on  20.02.1999  he  was  arrested  

and ultimately charge sheet was filed before the Trial Court  

on 29.07.2001.  

4. The prosecution in order to prove its case examined 17  

witnesses out of which many were formal witnesses and the  

investigating officers as the investigation was carried out by  

three officers.  The two relevant witnesses are Dr. Prabhash  

Kr. Barman, PW-17, who had conducted the post mortem and  

Suren Hazarika, PW-14, who claims to be the eye witness.

5. After the examination of the witnesses cited on behalf  

of the prosecution was over, statement of the accused under  

Section  313  CrPC  was  recorded  in  which  he  pleaded  not  

guilty and took the stand of false implication.  The defence  

chose not to adduce any evidence.  The Designated Court  

did not find any material to show complicity of the accused  

in any of the offences in respect of which charges had been  

framed under the TADA and accordingly opined that he was  

not guilty of the same.  However, as has been stated earlier,  

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the  Designated  Court  found  that  the  prosecution  had  

brought home the charge under Section 302 IPC against the  

accused.   For  arriving  at  the  said  conclusion,  as  the  

reasoning  of  the  Designated  Court  would  reveal,  it  has  

placed reliance on the testimony of PWs-14 and 17.   

6. Mr. Goswami, learned senior counsel for the appellant,  

criticizing  the  judgment  of  the  Designated  Court,  has  

submitted that  there can be no cavil  over  the proposition  

that a conviction can rest on the sole testimony of a singular  

witness but the said witness has to be absolutely reliable so  

that the credence can be given to his testimony.  In the case  

at hand, submits Mr. Goswami, PW-14 has surfaced after two  

years eight months by availing the specious plea that he was  

threatened  and  therefore,  he  could  not  apprise  the  

investigating agency about the occurrence which makes his  

version absolutely incredible.    It is also contended by him  

that as per the prosecution story, the wife was inside the  

house and the daughter, Ms. Prantika Barman, who was with  

the  deceased,  have  not  been  examined  and  such  non-

examination  of  material  witnesses,  in  the  absence  of  any  

explanation,  creates  a  dent  in  the  prosecution's  story.  

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Learned  senior  counsel  would  further  submit  that  a  

reference  to  the  post  mortem report  by  the  learned  trial  

Judge is inconsequential except that it proves the homicidal  

death, but unfortunately,  the same has been treated as a  

part of the evidence to prove the guilt of the accused which  

is impermissible.  

7. Mr. Navneet Kumar, learned counsel appearing for the  

State  of  Assam,  per  contra,  would  contend  that  the  

explanation  offered  by  PW-14  about  his  revealing  of  the  

incident in a belated manner because of the threat given by  

the  co-accused,  namely,  Dul  Bhuyan,  deserves  to  be  

accepted because the witnesses in certain circumstances do  

behave  in  a  peculiar  manner  regard  being  had  to  their  

individual  mental  framework,  personal  courage  and  

disposition in life.  Learned counsel would further submit that  

the evidence of PW-14 deserves acceptation as it is reliable  

and  the  Designated  Court  has  correctly  appreciated  the  

same and, therefore, the view expressed by it as regards the  

conviction, cannot be found fault with.  

8.  Be it noted that there is no dispute over the fact that  

the deceased was fired from the point blank range.  The post  

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mortem would reveal that he had suffered two injuries,  

namely, (i) one wound on the right side of the face near the  

outer  angle  of  the  right  eye,  size  ½” x  ½” with  inverted  

margin and (ii) one would present on the left side of the neck  

just below the ear. Size 1” x ½” with averted margin and the  

cause of death was due to shock and hemorrhage as a result  

of bullet injuries sustained by the deceased.  Therefore, the  

death is homicidal is beyond doubt.  

9. The question that  arises  for  consideration is  whether  

the prosecution has been able to establish the involvement  

of the appellant in the crime in question.  As is manifest,  

neither the wife nor the daughter of the deceased has been  

examined.   Submission  of  Mr.  Goswami  is  that  they  are  

natural  witnesses  and  no  explanation  has  been  given  for  

their non-examination and hence, adverse inference against  

the  prosecution  deserves  to  be  drawn.   He  has  drawn  

inspiration from the authority in Surinder Kumar v. State  

of Haryana1 wherein it has been held, though in a different  

context, that a failure on the part of the prosecution in non-

examining the two children, aged about six and four years  

1(2011) 10 SCC 173

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respectively, when both of them were present at the site  

of  the  crime,  amounted  to  failure  on  the  part  of  the  

prosecution.   In  this  context,  reference to  the  decision  in  

State of H.P.  v.  Gian Chand2 would  be profitable.   The  

Court  while  dealing  with  non-examination  of  material  

witnesses has expressed that:-  

“14 … Non-examination of a material witness is  not a mathematical formula for discarding the  weight  of  the   testimony available  on  record,  howsoever natural, trustworthy and convincing  it may be. The charge of withholding a material  witness  from  the  court  leveled against the  prosecution  should  be  examined  in  the  background of  the facts  and circumstances of  each case so  as to find whether the witnesses  are available  for  being examined in  the court  and were yet withheld by the prosecution.”    

The  three-Judge  Bench  further proceeded to observe that  

the court is required first to assess the trustworthiness of the  

evidence available  on  record  and  if  the court finds the  

evidence  adduced  worthy  of  being  relied  on,  then  the  

testimony has to be accepted and acted upon though there  

may be other witnesses available who could also  have  been  

examined  but were not examined.

10.  In  Takhaji  Hiraji  v.  Thakore  Kubersing  

2   (2001) 6 SCC 71

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Chamansing3  and others the Court has ruled that it is  

true  that  if  a  material  witness,  who  would  unfold   the  

genesis  of  the  incident  or  an  essential  part   of  the  

prosecution case, not convincingly brought to fore otherwise,  

or where there is a gap or infirmity in the prosecution case  

which could have been  supplied or made good by examining  

a  witness  who  though  available  is  not  examined,  the  

prosecution  case  can  be  termed  as  suffering  from  a  

deficiency and withholding of such a material witness would  

oblige the court to draw an adverse inference against the  

prosecution by holding  that if the witness would have been  

examined  it  would  not  have  supported  the prosecution  

case.  On the other hand if already overwhelming evidence is  

available and examination of other witnesses would only be  

a repetition or duplication of the evidence already adduced,  

non-examination  of  such  other  witnesses  may  not  be  

material.  In such a case the court ought to scrutinise the  

worth of the evidence adduced.  The Court should pose the  

question whether in the facts and circumstances of the case,  

it was necessary to examine such other witness, and if so,  

whether such witness was available to be examine and yet  

3 (2001) 6 SCC 145

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was  being  withheld  from  the  court.  If  the  answer  be  

positive  then  only  a  question  of  drawing  an  adverse  

inference may arise. If the witnesses already examined are  

reliable  and  the  testimony  coming  from  their  mouth  is  

unimpeachable the court can safely act upon it, uninfluenced  

by the factum of non-examination of other witnesses.

11. In Dahari v. State of U.P.4, while discussing about the  

non-examination  of  material  witness,  the  Court  expressed  

the view that when he was not the only competent witness  

who would have been fully capable of explaining the factual  

situation  correctly  and  the    prosecution  case  stood  fully  

corroborated by the medical evidence and the testimony of  

other  reliable  witnesses,  no  adverse  inference  could  be  

drawn against the prosecution.  

12. From the aforesaid authorities, it is quite vivid that  non-

examination of material witnesses would not always create a  

dent in the prosecution's case.  However, as has been held  

in  the  Case  of  Gian  Chand  (supra)  the  charge  of  

withholding  a  material  witness  from  the  Court  levelled  

against  the  prosecution  should  be  examined  in  the  

4 (2012) 10 SCC 256

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background of facts and circumstances of each case so  

as to find out whether the witnesses were available for being  

examined  in  the  Court  and  were  yet  withheld  by  the  

prosecution.  That apart,  the court has first to assess the  

trustworthiness of the evidence adduced and available on  

record.  If the court finds the evidence adduced worthy of  

being relied on then the testimony has to be accepted and  

acted on though there may be other witnesses available who  

could  also  have  been  examined  but  were  not  examined.  

Another aspect which is required to be seen whether such  

witness or witnesses are the only competent witnesses who  

could  have  been  fully  capable  of  explaining  correctly  the  

factual situation.   As we have noticed in the case at hand,  

the daughter was the eye witness and the wife was slightly  

away from the scene of occurrence.    They are the most  

natural  and  competent  witnesses.  They  really  could  have  

thrown  immense  light  on  the  factual  score,  but  for  the  

reasons best known to the prosecution, they have not been  

examined.  It  is also not the case of the prosecution that  

they had not been cited as their evidence would have been  

duplication  or  repetition  of  evidence  or  there  was  an  

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apprehension that they would have not supported the  

case of the prosecution.  In the absence of any explanation  

whatsoever and also regard being had to the presence of  

wife  and  daughter  of  the  deceased  at  the  place  of  

occurrence,  we  are  of  the  considered  opinion  that  it  has  

affected the case of the prosecution. We are obliged to hold  

so as we find the prosecution has otherwise not been able to  

establish the case against the appellant and, therefore, non-

examination of the material witnesses cannot be regarded  

as inconsequential.  As we find, the conviction wholly rests  

on the sole testimony of PW-14.  It is well settled in law that  

conviction  can  be  based  on  the  testimony  of  a  singular  

witness.  It has been held in Sunil Kumar v. State (Govt.  

of NCT of Delhi)5 that as a general rule the court can and  

may act on the testimony of a single witness provided he is  

wholly reliable.  There is no legal impediment in convicting a  

person on the sole testimony of a single witness.  That is the  

logic of Section 134 of the Evidence Act, 1872.  But, if there  

are  doubts  about  the  testimony  the  courts  will  insist  on  

corroboration.   The same principle  has been reiterated in  

Namdeo v. State of Maharashtra6 by stating that  it  is  5  (2003) 3 SCC 169 6  (2007) 14 SCC 150

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open to a competent court to fully and completely rely  

on a solitary witness and record conviction, if the quality of  

the witness makes the testimony acceptable.   

13. In the case at hand the learned trial Judge has placed  

reliance on the evidence of PW-14 who has come forward for  

recording his statement under Section 161 CrPC almost after  

two years and eight months.  The only explanation he has  

given  is  that  he  was  threatened  by  the  co-accused  Dul  

Bhuyan.   It  is  interesting to note after  his  statement was  

recorded,  the  accused  was  arrested  after  six  years  and  

nothing happened to him during the said period.  Thus the  

plea of threat to keep him silent for almost two years and  

eight months does not inspire confidence.  Apart from that,  

as  his  testimony  would  show  the  accused-appellant  had  

enquired about the deceased and he had accompanied them  

to  the  house  of  the  deceased  on  one  day,  when  the  

deceased  Doctor  was  absent.  His  acquaintance  with  the  

accused-appellant was hardly a fortnight old, but he along  

with the appellant and another had gone to the clinic of the  

deceased where the other person, pretending as a patient,  

went inside.  It is in his evidence that the accused-appellant  

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had fired at the deceased as a result of which he fell  

down and died.  That the said witness could keep such an  

incident without disclosing to anyone, defies prudence and  

baffles commonsense.  His plea of being threatened for such  

a long period to have the sustained silence, is unacceptable  

and we have no hesitation in holding that his testimony is  

thoroughly  and  wholly  unreliable.   Therefore,  we  are  of  

considered  view  that  the  conviction  recorded  by  the  

Designated  Court  on  his  testimony  alone  without  any  

corroboration is totally unsustainable.

14.   In the result, we allow the appeal and set aside the  

judgment  of  conviction.   If  the  detention  of  the  accused-

appellant is not required in connection with any other case,  

he be set at liberty forthwith.  

…..................................J. [DIPAK MISRA]

…...................................J. [ABHAY MANOHAR SAPRE]

NEW DELHI AUGUST 27, 2014

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