Eyewitness testimonies must be reliable and consistent, and the court must consider attending circumstances and contradictions in the testimonies to ensure a fair trial.

JUDGMENT :

DEEPAK GUPTA, J.

1. This appeal by the convicted accused is directed against the judgment dated 24.10.2008 passed by the Division Bench of the High Court of Madhya Pradesh, whereby the High Court upheld the judgment of the Sessions Judge, Datia dated 30.03.1995 convicting the appellants of having committing offences punishable under Sections 148 and 302 read with 149 of the Indian Penal Code. Appellants were sentenced to undergo life imprisonment for the offence of murder and two years rigorous imprisonment for the offence punishable under Section 148 IPC. They were also directed to pay fine of Rs. 25,000/- and in default of payment of fine further three years rigorous imprisonment.

2. Shortly stated the prosecution case, as reflected in FIR is that on 25.05.1994 at about 2 p.m. Lakhan Singh (PW-10) and Ram Singh (PW-11), who were coming from village Baron Kalan to village Kotra, saw the accused persons beating Gajraj Singh with lathis at a place called Brar Khora. These two witnesses asked why the accused were beating Gajraj Singh and then they were threatened by the accused. Being scared, they ran away from the spot to save their own lives. Then they reached village Kotra and thereafter went to the police station at about 5 pm. to lodge the FIR. We may also add that though this is not part of the FIR, during the course of investigation it has transpired that Somati (PW-6) and Raghubir (PW-7) last saw Gajraj Singh with accused Imrat Singh. Both, the Trial Court and the High Court, have accepted the testimony of Lakhan Singh (PW-10) and Ram Singh (PW-11) to be true and accepting their evidence to be true and treating these two witnesses as eye-witnesses have convicted all the accused as aforesaid. Hence, the present appeal.

3. The main contention raised before us by Ms. June Chaudhary, learned senior counsel, as well as Mr. Shikhil Suri, whom we had asked to assist us as amicus, is that the testimonies of Lakhan Singh (PW-10) and Ram Singh (PW-11) are totally untrustworthy and cannot be relied upon. They submit that if the testimonies are read as a whole along with the other attending circumstances, to which we shall advert later, no reliance can be placed on these two witnesses and, therefore, the conviction is liable to be set aside. Even with regard to Somati (PW-6) and Raghubir (PW-7), it is submitted that their testimonies are contradictory and cannot be relied upon and at best the testimonies will go against Imrat Singh and not against any of the other accused.

4. We need not refer to the FIR in detail. We will straight away deal with the statement of the two star witnesses of the prosecution Lakhan Singh (PW-10) and Ram Singh (PW-11). They are both residents of Village Kotra. Their version is that they had gone to village Baron Kalan since they both had worked there and Lakhan Singh (PW-10) had to meet a potter Bhagwan Dass to get some work done. According to them, when they were returning from Baron Kalan and had reached near Brar Khora they saw all the five accused Imrat Singh, Hetam Singh, Raghubir Singh, Nirbhaya Singh and Ratan Singh beating Gajraj Singh with lathis. According to Lakhan Singh (PW-10), this occurrence took place in Brar Khora near the passage where they were walking. Whereas according to Ram Singh (PW-11), the distance was only 10 steps. Both of them stated that when they enquired from the accused as to why they were beating Gajraj Singh, they were also threatened and then they ran away. As far as this part of the story is concerned, there is complete identity between the versions of those two witnesses. It is almost a parrot like version. The question is whether these witnesses are telling the truth or not. If we were to rely only on this portion of the testimony there would be no difficulty in upholding the judgment of the High Court.

5. The subsequent portion of the statements of these witnesses is so much at variance with each other and there are so many material contradictions in the state