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MANDEEP PANNU, J. –

1. The present appeal has been preferred by Gurmail Singh against the judgment of conviction and order of sentence dated 27th October, 2005, passed by learned Additional Sessions Judge, Bathinda, whereby the appellant Gurmail Singh has been convicted and sentenced as under:-

2. Briefly stated, the facts of the case are that Gurmail Singh, accused, son of the complainant Sukhdev Kaur, used to reside separately from his parents. Baldev Singh, husband of the complainant (deceased), was the owner of 12 killas of ancestral land, out of which 2 killas were under mortgage with Gurdev Singh, the elder brother of Baldev Singh. The remaining 10 killas of land were under the cultivation of accused Gurmail Singh. It had been decided in the brotherhood that Gurmail Singh would pay Rs.19,000/- as a lump-sum amount as lease money for a year and that he would also provide the other necessities of life to the complainant and her husband. However, Gurmail Singh failed to provide the lease money or other necessities of life. Many a time, efforts were made to persuade Gurmail Singh in the brotherhood, but he did not pay any heed to them. On 04.05.2004, Darshan Singh and Gurjant Singh, brothers of the complainant Sukhdev Kaur, who were residents of village Jeeda, had come to Virk Kalan, the village of the complainant, to resolve the matter, in respect of which a gathering was held in the house of Resham Singh, son of Major Singh, Jat by caste. Gurmail Singh was persuaded that he should pay the lease money to his parents, but Gurmail Singh was adamant, saying that neither would he vacate the land nor would he pay the lease money. He also wanted that his father should transfer the land in his favour, or else he would kill him. Baldev Singh left the gathering for his fields for fetching fodder for his goat. Gurmail Singh also went after him, holding a dang in his hand. The complainant, Smt. Sukhdev Kaur, expressed her apprehension before her brothers that Gurmail Singh might quarrel with his father. At this, the complainant, accompanied by her brothers Darshan Singh and Gurjant Singh, went after Gurmail Singh. At about 7.00 p.m., when Baldev Singh reached the road leading to village Bhai-Kot, near the fields of Jwala Singh, son of Bhag Singh, Gurmail Singh pushed him from behind. Baldev Singh fell down. When he got up, Gurmail Singh gave a blow with the dang, which hit Baldev Singh on the forehead above the right eye. Baldev Singh fell into the pucca water-course running along the road. Gurmail Singh dragged Baldev Singh, holding him by his hair, and went on hitting his body against the pucca water-course. The complainant and her brothers raised the alarm and rushed to the spot. Gurmail Singh fled from the spot along with the dang. When the complainant, along with her brothers, approached Baldev Singh, he was found to have breathed his last. The complainant, accompanied by her brother Darshan Singh, left for lodging the information with the police and, when she reached near the waterworks of village Virk Kalan, she found the police party led by ASI Gurjant Singh, In-charge, Police Post Nihal Singh Wala, present there. Complainant Sukhdev Kaur got her statement, Ex.PD, regarding the said version of the occurrence recorded with him, in which she also got it recorded that her husband had been killed by her son Gurmail Singh under the instigation of her daughter-in-law Jaspreet Kaur, because Gurmail Singh wanted the entire land to be transferred in his favour, but her husband Baldev Singh was not agreeing to the same. Accordingly, on the aforesaid statement of the complainant, the FIR was registered against Gurmail Singh and Jaspreet Kaur, his wife.

3. Thereafter, the accused were arrested in the case and post-mortem examination of the dead body of deceased Baldev Singh was conducted. The doctor found four injuries on the person of the deceased, i.e swelling measuring 4cm. x 4cm. on the front of the forehead above the right eyebrow, abrasion measuring 3cm. x 2cm. on the right shoulder, abrasion measuring 3cm. x 2cm. on the right leg below the knee joint, and abrasion measuring 3cm. x 3cm. on the right side of the abdomen in its lower part. The doctor opined that the cause of death was shock and haemorrhage as a result of the injuries noted above, which were ante-mortem in nature and sufficient to cause death.

4. After the arrest of both the accused, they were produced before the Court and, finding a prima-facie case for charging the accused under Section 302 IPC read with Section 120-B IPC, a charge was accordingly framed against them. The accused pleaded not guilty to the charge and claimed trial.

5. In order to prove its case, the prosecution examined PW-1 Dr. Maninder Singh Brar, Medical Officer, Civil Hospital, Bathinda, PW-2 Sukhdev Kaur, complainant, PW-3 Darshan Singh, PW-4 HC Amrik Singh, PW-5 ASI Gurjant Singh, PW-6 Gurjant Singh and PW-7 SI Manjit Singh, the Investigating Officer, and thereafter, closed its evidence after tendering into evidence the scaled site plan, Ex.PR.

6. Thereafter, the statements of both the accused were recorded under Section 313 Cr.P.C., wherein they denied the incriminating circumstances appearing against them in the prosecution evidence and pleaded innocence. However, no evidence was led by the accused in their defence.

7. Thereafter, learned trial Court, after hearing learned APP for the State and learned defence counsel, convicted accused Gurmail Singh for the offence as detailed in para No.1 of the judgment and acquitted the other accused, namely, Jaspreet Kaur, wife of Gurmail Singh, of the charges framed against her.

8. Aggrieved by the aforesaid judgment of conviction and order of sentence passed against him, convict Gurmail Singh has preferred the present appeal.

9. Notice of the appeal was given to the State, which appeared and contested the same.

10. While assailing the judgment of conviction and order of sentence passed by learned trial Court, learned counsel for the appellant primarily contended that the prosecution case regarding the actual occurrence rests principally upon three alleged eyewitnesses, namely, PW-2 Sukhdev Kaur, the complainant and wife of the deceased, PW-3 Darshan Singh, brother of PW-2, and PW-6 Gurjant Singh, another brother of PW-2. It was argued that PW-2 Sukhdev Kaur, though initially supported the prosecution case in her examination-in-chief, did not support the same in her cross-examination and even in her examination-in-chief, did not attribute any danda blow to the accused. Similarly, PW-3 Darshan Singh, though alleged a danda blow in his examination-in-chief, did not support the prosecution case in his cross-examination. PW-6 Gurjant Singh, the third alleged eyewitness, did not support the prosecution case even in his examination-in-chief and was consequently declared hostile. Learned counsel submitted that such material departures by the alleged eyewitnesses cannot be treated as minor discrepancies relating to minor matters. According to learned counsel, the contradictions and retractions go to the very root of the prosecution case, particularly with regard to the presence and reliability of the alleged eyewitnesses, the weapon allegedly used in the occurrence and the very manner in which the fatal injury was caused. It was, thus, argued that the examination-in-chief of the witnesses could not be selectively relied upon while ignoring the material admissions and departures made by them in cross-examination, and that the ocular account, when appreciated as a whole, fails to inspire confidence.

11. On the other hand, learned State counsel argued that although PW-2 Sukhdev Kaur and PW-3 Darshan Singh did not support the prosecution case in their cross-examination, both of them had categorically narrated the occurrence in their examination-in-chief and specifically attributed the role of the appellant, Gurmail Singh, as the principal assailant who caused the death of the deceased. It was submitted that their subsequent departure from the prosecution version in cross-examination was attributable to police pressure and, therefore, their examination-in-chief could not be discarded merely on that account. Learned State counsel further contended that the testimony of PW-2 and PW-3, to the extent it supported the prosecution in their examination-in-chief, could still be taken into consideration and was sufficient to establish the allegations against the appellant. As regards PW-6 Gurjant Singh, it was fairly conceded that he did not support the prosecution even in his examination-in-chief and was declared hostile, however, according to learned State counsel, this would not affect the otherwise sufficient testimony of PW-2 and PW-3. It was further argued that the fact that PW-2 did not specifically attribute a danda blow in her examination-in-chief constituted, at the most, a minor discrepancy and did not materially affect the core of the prosecution case regarding the appellant having caused the fatal injury to the deceased.

12. Having considered the rival submissions and the evidence available on record, this Court is unable to accept the contention advanced by learned State counsel. It is a settled principle governing appreciation of evidence that the testimony of a witness has to be read and appreciated as a whole. The examination-in-chief cannot be severed from the cross-examination and a Court cannot accept only that part of the testimony which advances the prosecution case while completely ignoring the material admissions, denials or departures made by the same witness in cross-examination. Cross-examination is not an empty formality, it is an important part of the process of testing the truthfulness, correctness and reliability of the testimony of a witness. Therefore, where a witness, after supporting the prosecution in examination-in-chief, materially resiles from that version in cross-examination and specifically denies having witnessed the occurrence or having made the allegations against the accused, the effect of such denial has necessarily to be considered while assessing the evidentiary value of the witness.

13. In the present case, the testimony of PW-2 Sukhdev Kaur assumes considerable significance. Though in her examination-in-chief, she initially supported the prosecution version and attributed the assault upon the deceased to the appellant, in her cross-examination, she categorically stated that she was not present at the time of occurrence, that no occurrence had taken place in her presence and that the appellant had not caused injuries to the deceased in her presence. She further stated that she had named the appellant on account of pressure or threat exerted by the police. Thus, her cross-examination does not merely bring out some inconsistency on ancillary matter, rather, it strikes at the very foundation of her presence as an eyewitness and at the truthfulness of the allegations attributed by her to the appellant. Even when she was confronted with her earlier version and was subjected to cross-examination by learned Public Prosecutor, and was thereafter re-examined, she did not restore or reaffirm the material prosecution version in a manner which could satisfactorily explain her categorical denial in cross-examination. Her testimony, therefore, has to be considered in its entirety and not by isolating the favourable portions of her examination-in-chief.

14. The same infirmity attaches to the testimony of PW-3 Darshan Singh. Though he introduced, in his examination-in-chief, the allegation that the appellant had inflicted a danda blow on the forehead of the deceased but in his cross-examination, he categorically stated that he was not present at the place of occurrence, no occurrence had taken place in his presence and he did not know how the deceased had died. Thus, the version furnished by PW-3 in examination-in-chief is itself materially different from that of PW-2, while his subsequent cross-examination completely denies his presence at the occurrence. The fact that the Public Prosecutor was permitted to cross-examine him or that he was subjected to re-examination cannot, by itself, convert his otherwise inconsistent testimony into a reliable account. What is required to be seen is whether, after the entire exercise of examination, cross-examination and re-examination, the witness furnishes a version which can safely be acted upon. In the present case, he does not.

15. The position of PW-6 Gurjant Singh is still more categorical. He did not support the prosecution even in his examination-in-chief and was consequently declared hostile. His testimony, therefore, does not furnish any independent corroboration to the versions of PW-2 and PW-3. The three witnesses projected as eyewitnesses do not furnish a consistent ocular account. PW-2, even in her examination-in-chief, does not attribute any danda blow to the appellant, PW-3, on the other hand, introduces the allegation of a danda blow and both PW-2 and PW-3 thereafter substantially deny their presence and the occurrence in cross-examination, whereas PW-6 does not support the prosecution at all even in examination-in-chief.

16. The submission of learned State counsel that the examination-in-chief of PW-2 and PW-3 should nevertheless be accepted because they had named the appellant as the principal assailant cannot be accepted in the facts of the present case. Their naming of the appellant cannot be viewed in isolation from the categorical stand subsequently taken by them in cross-examination. If the Court were to accept the examination-in-chief as truthful and simply discard the material part of the cross-examination without any satisfactory reason, it would amount to assessing only a selected part of their depositions. The explanation suggested by the witnesses regarding police pressure also cannot automatically be accepted in favour of the prosecution, the Court has to independently assess whether the entire testimony inspires confidence. Here, the subsequent denials are so prominent that they create a serious doubt regarding the truthfulness of the earlier version.

17. It is true that the testimony of a hostile witness is not necessarily effaced from the record in its entirety and a Court may, where warranted, rely upon a particular portion which is found to be truthful and duly corroborated. However, that principle does not permit the Court to mechanically accept the examination-in-chief of a witness while ignoring a material and categorical denial in cross-examination. In the present case, there is no such reliable and consistent portion of the testimony of PW-2 and PW-3 which, when considered with the other evidence, would safely establish the manner of occurrence and the role attributed to the appellant. The ocular evidence, therefore, does not inspire the confidence required for sustaining a conviction for the offence of murder.

18. Likewise, the contention that the absence of a danda blow in the testimony of PW-2 is merely a minor discrepancy is not persuasive. The manner in which the fatal head injury was allegedly caused is a material circumstance in a case resting mainly upon ocular evidence. PW-2 does not attribute any blow with the alleged danda, whereas PW-3 introduces such a blow in his examination-in-chief and thereafter, denies having witnessed the occurrence. Thus, the discrepancy is not merely about an incidental detail, it assumes significance when considered alongside the subsequent complete retraction by the witnesses. The alleged recovery of the danda pursuant to the disclosure statement of the appellant also cannot, by itself, supply the missing link in the prosecution case or transform an otherwise doubtful ocular account into a trustworthy one.

19. We are of the considered view that the learned trial Court fell into error in placing reliance upon the testimony of PW-2 Sukhdev Kaur and PW-3 Darshan Singh while ignoring the material part of their cross-examination, wherein both of them substantially denied their presence at the place of occurrence and denied the prosecution version, and further in drawing support from the testimony of PW-6 Gurjant Singh, who did not support the prosecution even in his examination-in-chief. Learned trial Court could not have selectively relied upon the favourable portions of the examination-in-chief of PW-2 and PW-3 while discarding their categorical statements made in cross-examination, particularly when their depositions, read as a whole, did not furnish a consistent and reliable account of the occurrence. The approach adopted by learned trial Court, therefore, suffers from a material error in appreciation of evidence and cannot be sustained.

20. Learned counsel for the appellant next contended that the medical evidence does not corroborate the specific version furnished by PW-3 Darshan Singh regarding the alleged danda blow. It was submitted that PW-3 had specifically attributed a danda blow to the left side of the forehead of the deceased, whereas PW-1 Dr. Maninder Singh found the main injury on the front of the forehead above the right eyebrow. It was further submitted that PW-1, in cross-examination, expressly admitted that Injury No.1 was possible by a fall on a hard surface with the face down. Thus, according to learned counsel, the medical evidence neither supports the specific version of PW-3 regarding the danda blow nor excludes an alternative manner in which the fatal injury could have been sustained.

21. Learned State counsel, on the other hand, submitted that the medical evidence is not expected to reproduce the ocular version in every minute detail and that the difference regarding the precise side of the forehead cannot, by itself, discredit the prosecution case. It was argued that the nature of Injury No.1 was consistent with an impact by a blunt object and, therefore, the possibility that the injury was caused by the danda recovered at the instance of the appellant could not be ruled out merely because the doctor admitted another possible mechanism of injury.

22. We have considered the rival submissions. In the facts of the present case, the medical evidence assumes significance not because it is required to conclusively establish the use of a particular weapon, but because the ocular evidence itself is materially uncertain as to the manner in which the fatal injury was caused. PW-3 is the only witness who introduced the specific allegation of a danda blow, and he attributed that blow to the left side of the forehead. The medical evidence, however, places the principal injury on the front of the forehead above the right eyebrow. More importantly, PW-1 has expressly accepted the possibility of the same injury having been caused by a face-down fall on a hard surface. Thus, the medical evidence does not furnish positive corroboration to the specific version of PW-3. In a case where the main eyewitness subsequently does not support the prosecution in cross-examination, such absence of medical corroboration assumes greater significance. We are not suggesting that a mere difference in the description of the site of an injury would invariably render ocular evidence unacceptable, however, where the witness who attributes the particular weapon and manner of assault does not withstand cross-examination, and the medical evidence does not affirmatively support that particular mechanism of injury, the prosecution cannot derive assurance from the medical evidence which is otherwise lacking in its ocular account.

23. The prosecution has also relied upon the alleged disclosure statement of the appellant and the consequent recovery of a bamboo danda. Learned counsel for the appellant contended that the recovery does not establish that the recovered danda was used in the occurrence. It was pointed out that PW-5 ASI Gurjant Singh admitted that the appellant had been interrogated at the police station for about 30-45 minutes before the alleged disclosure statement was recorded and that no independent public person was associated with the interrogation. It was further argued that the recovered article was an ordinary bamboo danda, easily available in the market, and that there was no scientific or forensic evidence connecting it with the deceased or with the fatal injury.

24. Learned State counsel, however, submitted that the recovery having been effected pursuant to the disclosure statement of the appellant constitutes a relevant circumstance and provides corroboration to the prosecution version, particularly when the danda was recovered at the instance of the appellant. According to learned State counsel, the absence of an FSL report or other scientific evidence would not, by itself, render such recovery inadmissible or incapable of corroborating the ocular evidence.

25. The submission of learned State counsel cannot be accepted to the extent sought in the present factual circumstances. We are conscious that a recovery pursuant to information furnished by an accused is not to be discarded merely because it is witnessed by police officials or because no independent witness was associated with the recovery. Its evidentiary value, however, has to be assessed within the limited ambit of the admissible portion of the disclosure under Section 27 of the Indian Evidence Act. The portion amounting to a confession of having committed the murder cannot derive substantive evidentiary value merely by being incorporated in a disclosure statement. What can be relied upon is the portion of the information which distinctly relates to the fact thereby discovered. Even assuming, therefore, that the recovery of the bamboo danda pursuant to the information supplied by the appellant is duly proved, the recovery establishes, at the highest, that the article was recovered in consequence of the information furnished by him, it does not, without more, establish that the very same danda was used in inflicting the fatal injury. For this, reliance has been placed upon Mustkeem @ Sirajudeen vs. State of Rajasthan, 2011(3) RCR(Criminal) 766, wherein the Hon’ble Supreme Court has held as under:-

“27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.”

26. This distinction assumes considerable importance in the present case. The recovered article is an ordinary bamboo danda and there is no forensic or scientific material connecting it with the deceased or with Injury No.1. No blood, tissue, hair, DNA or other incriminating material has been shown to have been detected upon it. The Investigating Officer has also admitted that such bamboo dandas are readily available. More importantly, the own ocular evidence of prosecution does not consistently establish the use of this weapon, PW-2 does not attribute any danda blow to the appellant even in her examination-in-chief, PW-3 alone introduces the allegation of such a blow and thereafter, does not support the prosecution in cross-examination, and PW-6 does not support the prosecution even in examination-in-chief. In these circumstances, the recovery cannot be said to be substantive corroboration of a fact which the ocular evidence itself fails to establish consistently. The absence of scientific linkage, though not by itself fatal to the prosecution, acquires substantial significance when considered with the infirmities in the ocular account and the medical evidence which leaves open an alternative manner of causing the injury. Consequently, the alleged recovery of the bamboo danda, even if accepted as proved, does not remove the reasonable doubt arising from the prosecution evidence regarding its use in the occurrence or its connection with the fatal injury.

27. Learned counsel for the appellant also argued that the prosecution had failed to establish the manner in which the fatal injury was caused and that, in the absence of reliable ocular evidence corroborated by medical, forensic or other independent evidence, the appellant was entitled to the benefit of reasonable doubt.

28. Learned State counsel, however, opposed the appeal and supported the judgment of the learned trial Court.

29. We have considered the rival submissions and examined the evidence on record. The prosecution case, when appreciated as a whole and not by isolating the inculpatory portions of the statements of PW-2 and PW-3, does not inspire confidence. PW-2 Sukhdev Kaur did not support the prosecution in her cross-examination and did not attribute any danda blow to the appellant even in her examination-in-chief, PW-3 Darshan Singh introduced the allegation of a danda blow but subsequently denied the prosecution version in cross-examination, and PW-6 Gurjant Singh did not support the prosecution even in his examination-in-chief. The medical evidence does not affirmatively corroborate the specific manner of assault alleged by PW-3 and, rather, leaves open the possibility of the main injury having been caused by a fall on a hard surface. The alleged recovery of the bamboo danda pursuant to the disclosure statement, in the absence of any forensic linkage or other convincing evidence establishing its use in the occurrence, does not bridge this evidentiary gap. These circumstances, considered cumulatively, create a reasonable doubt regarding the prosecution version and the role attributed to the appellant. Learned trial Court, in our considered view, erred in relying upon the inculpatory portions of the evidence while overlooking the material effect of the cross-examination and the absence of corroborative evidence. The prosecution has, therefore, failed to establish the guilt of the appellant beyond reasonable doubt, and the appellant is entitled to the benefit of doubt.

30. Accordingly, the present appeal is allowed. The judgment of conviction and order of sentence passed by learned trial Court against the appellant, Gurmail Singh, are set aside. The appellant is acquitted of the charge framed against him by extending to him the benefit of doubt. The appellant, if in custody, shall be released forthwith, if not required in any other case. The bail bonds, if any, furnished by him shall stand discharged. The case property, if any, shall be dealt with in accordance with law.

31. Pending application(s), if any, also stand(s) disposed of.

Appeal allowed.

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