K. V. Jayakumar, J.

1. This Criminal Appeal has been preferred impugning the judgment of the learned Additional Sessions Judge - II, Kalpetta, Wayanad, dated 07.01.2019 in S.C. No.27 of 2015. The appellant/accused No.1 stood for trial for the offences punishable under sections 449 and 302 of the Indian Penal Code and under Sections 25(1-B)(a) and 27(1) of the Arms Act. The accused No.2 was charged for the offence under Sections 25(1)(a), 25(1-B)(a) and 25(1-B)(c) of the Arms Act, and accused No.3 was charged for the offence under Section 25(1)(a) of the Arms Act.

2. By the impugned judgment dated 07.01.2019, the learned Additional Sessions Judge convicted and sentenced the Appellant/1st accused as follows:

                  i) to undergo imprisonment for life and to pay a fine of ₹1,00,000/- and, in default of payment of fine, to undergo rigorous imprisonment for a further period of six months each, for the offence under Section 302 of IPC.

                  ii) to undergo rigorous imprisonment for three months and to pay a fine of ₹500/- for the offence under Section 447 of IPC, with a default sentence to undergo rigorous imprisonment for one month.

                  iii) to undergo rigorous imprisonment for a period of one year and to pay a fine of ₹10,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of one month for the offence under Section 25(1-B)(a) of the Arms Act.

                  iv) to undergo rigorous imprisonment for a period of three years and to pay a fine of ₹10,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of one month for the offence under Section 27(1) of the Arms Act.

                  2.1. However, accused Nos.2 and 3 were found not guilty of the offences they were charged with and were accordingly acquitted by the learned Additional Sessions Judge.

Prosecution case:

3. The prosecution case, in brief, is that on 09.10.2011 at 8.45 pm , the 1st accused trespassed into the courtyard of the house of Thomas, bearing No. 1/128 (2/12) at Pachadi, Eachakunnu, Kidanganadu Amsom of Noolpuzha Panchayath, with an intention to murder him due to previous animosity towards the deceased Thomas, abused him and provoked him to come outside. When Thomas came out and reached the adjacent pathway, accompanied by his wife, Seena (PW2), the 1st accused took an unlicensed 12-bore single-barrel breech-loading country gun (MO1), which he had concealed nearby, and fired at Thomas in the abdomen from close range. Thomas collapsed and fell into the lap of his wife. Later, he succumbed to the injuries while undergoing treatment at Sulthan Bathery Government Hospital.

                  3.1. The prosecution further alleges that the 1st accused and the deceased Thomas were friends and that the 1st accused had animosity towards the deceased under the mistaken belief that Thomas had taken away the wild meat and illicit arrack belonging to him.

                  3.2. The prosecution case further is that the 1st accused acquired and possessed the gun, pellets and cartridges without any licence. The 2nd accused allegedly transferred the cartridges in his possession to the 1st accused without holding the requisite licence, and the cartridges did not bear the name of the maker or any other identification mark. The prosecution further alleges that the 3rd accused sold the country-made gun which was in his possession to the 1st accused.

The Registration of FIR and the Investigation

4. On the basis of Ext.P1 FIS lodged by PW1 (Baby P. P.), PW25 (M.A. Santhosh), Sub Inspector of Police, Sulthan Bathery, registered Ext.P1(a) FIR on 09.10.2011.

5. PW28 (P.K. Visambharan), the Circle Inspector of Police, Sulthan Bathery, took over the investigation on 10.10.2011. On the same day, during the investigation, he found the 1st accused at Vadakkanadu with a country gun, and an empty cartridge was found in the pocket of his shirt. Thereafter, he arrested the 1st accused, after preparing Ext.P9 arrest and inspection memo, and took him to the police station. He seized the country gun with a live cartridge from the possession of the 1st accused and an empty cartridge case recovered from his pocket, as per Ext.P6 seizure mahazar. Thereafter, in order to ascertain and collect the remnants of gunpowder, if any, from the hands of the 1st accused, the hands of the 1st accused were bolted with cotton gauze dipped in distilled water. He dried, packed, and sealed the cotton gauze and seized the same after preparing Ext.P20 mahazar.

6. Thereafter, he conducted the inquest of the body of the deceased and prepared Ext.P2 Inquest Report. He seized MO2 ( Lungi) from the body of the deceased. He has forwarded the body of the deceased to Kozhikode Medical College for postmortem examination. He proceeded to the scene of occurrence along with the scientific assistant and police party and prepared Ext.P4 scene mahar. He seized MO4 series footwear from the place of occurrence. He has also seized two packets containing the blood stains collected by the Scientific Assistant, Wayanad, from the place of occurrence in cotton gauze. He seized the blood-stained soil collected by the Scientific Assistant as per Ext.P21 seizure mahazar.

7. Thereafter, he prepared Ext.P29 advance search memorandum to search the house of the 1st accused and forwarded the same to the jurisdictional court. Thereafter, he proceeded to search the house of the first accused. He seized 15 items, including 21 empty cartridges, as per Ext.P5 search list. On 10.10.2011 he prepared Ext.P30 report adding Sections 27(c), 25(1-B)(a) and 25 (1-B)(c) of the Arms Act. He prepared Ext.P31 report to incorporate the name and address of the 1st accused. The accused was produced before the jurisdictional court alongwith Ext.P32 remand report. He has also seized the pellets handed over by the Police Surgeon, who conducted the postmortem, as per Ext.P22 mahazar. He produced the Cartridges and an empty case before the Court as per Ext. P37 Property list. The material objects seized from the house of the 1st accused were produced before the Court as per Ext.P43 property list. He produced the pellets received from the police surgeon before the Court along with Ext.P44 property list. On 12.10.2011, he filed Ext. P36 section adding report to incorporate Section 25(1)(a) of the Arms Act. On the basis of the information that the cartridges were given by the 2nd accused, PW28 prepared Ext.P33 advance search memorandum to search the house of the 2nd accused, house No.I/440 situated at Noolpuzha Grama Panchayat. He conducted a search in the house of the 2nd accused and seized two cartridges as per Ext.P3 Search list in the presence of witnesses. Thereafter, he produced the empty cartridges before the Court along with Ext.P45 property list.

8. Thereafter, PW27 took over the investigation. On 02.12.2011, he collected the dried skin from the doctor who conducted the postmortem of the body of the deceased as per Ext. P23 mahazar. On 15.12.2011, he sent the material objects for examination to ascertain whether the same were included in the arms and ammunition categories after preparing a forwarding note. He has forwarded the blood-stained cotton gauze to the Regional Chemical Examination, Kozhikode, along with Ext.P26 forwarding note. He produced the postmortem certificate in the court. He recorded the statement of the doctor, who conducted the postmortem of the deceased. He produced the Ext.P11 scene plan prepared by the Village Officer before the Court. On 20.04.2013, he arrested the 3rd accused after preparing Ext.P27 arrest memo. He obtained Exts.P13, P14 and P15 ownership certificates for the building bearing Nos. NP 11/601, NP 01/228 and NP 01/317 A.

9. Further investigation was conducted by PW29 (V.V. Latheesh), Circle Inspector of Police, Sulthan Bathery. On 08.03.2014, he filed a report of the investigation to the District Magistrate, Wayanad, for getting prosecution sanction. On 30.07.2014, sanction was granted. After completing the investigation, he laid the charge sheet before the jurisdictional magistrate.

The Committal Proceedings before the Trial Court

10. The learned Magistrate, after completing the initial steps, committed the case to the Court of Sessions, Kalpetta. The Sessions Court took this case on file as S.C. No. 27 of 2015 and made over the case for trial and disposal to the Additional Sessions Court-II, Kalpetta.

                  10.1. The learned Sessions Judge framed the charge after hearing both sides. The charge was read over and explained to the accused. They pleaded not guilty and claimed to be tried. Thereafter, the prosecution examined PWs. 1 to 29 and marked Exts.P1 to P50. The MOs. 1 to 24 were also identified and marked. After the close of the prosecution evidence, the accused were examined under Section 313(1)(b) of the Code of Criminal Procedure. They denied the incriminating circumstances put to them and maintained the plea of innocence. On the side of defence, DWs.1 to 3 were examined.

The findings of the learned Sessions Judge.

11. The learned Sessions Judge, upon a meticulous evaluation of the oral and documentary evidence on record, found the testimony of PW2, the wife of the deceased, the sole eyewitness, to be reliable, cogent and credible. The trial court was of the view that the version of PW2 was corroborated by PWs 1, 3 and 6 to 9.

                  11.1. Accused No.2, Jose C.A., was acquitted upon finding that the prosecution had adduced no direct evidence to establish that he had transferred the cartridges to accused No.1. The trial court also found serious procedural infirmities in the search and seizure of the empty cartridges from his house and noted the unexplained delay of twelve days in producing the search list and memorandum before the court. Accused No.3, Jose, was acquitted on finding that the prosecution had failed to establish that he had illegally sold or transferred the country-made gun (MO1) to Accused No.1.

The contentions of the learned counsel for the appellant

12. Sri. S. M. Prasanth, the learned counsel for the appellant, has urged the following grounds to assail the judgment:

                  12.1 The impugned judgment of the learned Sessions Judge is patently illegal and unsustainable.

                  12.2. The evidence of PW2 is wholly unreliable and unworthy of credence, and the presence of PW2 at the scene of occurrence at the relevant time was not proved by the prosecution through clear and cogent evidence.

                  12.3. The trial court failed to note that PW2’s blood-stained nightie, which was a vital link to establish her presence at the scene, was not produced by the prosecution. The trial court ought not have relied on the version of PW2 to convict the appellant/1st Accused.

                  12.4. There was no source of light at the scene to see the incident at the relevant time.

                  12.5. The recovery of M.O. 1 Gun is not in accordance with the statutory provisions and the authoritative precedents. Reliance was placed on the decision of the Apex Court in Amarjit Singh @ Babbu v. State of Punjab 1995 Supp (3) SCC 217

                  12.6. The investigation of the case was conducted in a mechanical, haphazard, and defective manner.

                  12.7. The learned counsel for the appellant would submit that the prosecution failed to prove sufficient motive for a heinous crime alleged.

                  12.8. The non-citing and non-examination of the material witnesses cast serious doubts on the credibility of the prosecution case.

The contentions of the learned Public Prosecutor

13. On the other hand, the learned Senior Public Prosecutor, Sri. Gikku Jacob, submitted that the prosecution has succeeded in proving the charge against the appellant herein. PW2, wife of the deceased, is the sole eyewitness in this case. Her version is natural, truthful, and wholly reliable. The version of PW2 gets sufficient corroboration by the evidence of PWs.1, 3, and 6 to 8. There is nothing on record to discredit the testimony of PW2, the sole eyewitness to the incident. The learned Public Prosecutor submitted that the version of the sole eyewitness can form the basis for sustaining conviction, if he/she is wholly reliable. It is the quality of evidence let in by the prosecution and not the quantity of evidence which matters. The credible evidence of PW2 along with medical as well as the forensic evidence would unerringly prove the guilt of the accused. The trial court appreciated the evidence in the correct perspective and arrived at a proper conclusion. Therefore, no interference, whatsoever, is warranted in this matter.

The evidence let in by the prosecution

14. PW1 (Baby P. P.) is the elder brother of the deceased. He testified that he is residing at Vadakkanadu, Eachakunnu. The alleged incident took place on 09.10.2011 at about 8:45 p.m. On hearing the bark of a dog, when he looked around, he saw the accused standing in the courtyard of his house. Thereafter, the accused proceeded to the house of the deceased on foot. He identified the accused in the dock.

                  14.1 After a short while, he heard the accused uttering abusive words against the deceased Thomas. After 10 - 15 minutes, the accused passed through his courtyard. At that time also, the accused uttered abusive words against the deceased. In the meantime, he had seen the deceased and his wife, Seena, following the accused. PW2, Seena, warned her husband not to accompany the accused and tried to pull him back. Within a short span of two minutes, he heard the sound of a gunshot about 20 metres away from his house. He, along with his son, proceeded to the place of occurrence. When he reached there, he saw the deceased Thomas collapsing into the lap of Seena. He noticed that the intestine of the deceased came out from his abdomen due to a bleeding injury. PW2, Seena, told him that the accused Mohanan fired at the deceased and then retreated from the scene. He, along with his son (Sabin), carried them to the road. Meanwhile, the neighbours, Gopi and Gopalan, reached there. Rajamani, PW9, brought his car and took the injured to the Government Hospital, Bathery. The doctors examined the injured and declared the death of Thomas.

                  14.2 He further stated that he came to know that there was a quarrel between the accused and the deceased on a mistaken belief that the deceased had taken the wild meat from the custody of the accused. He lodged Ext.P1 FIS before the Bathery Police Station.

                  14.3 This witness was subjected to severe cross examination. During cross examination, he stated that when he reached the scene of occurrence, he had seen the deceased lying on the lap of PW2, Seena. According to him, he had direct knowledge about the incident. He stated that he had not narrated the history of the incident to the doctor. He further stated that the house of the deceased is about 50 metres away from his house. He does not know whether the deceased Thomas, has committed the theft of the chain of one Jose. He further stated that PW2, Seena, did not accompany the injured to the hospital.

15. PW2, Seena, is the wife of the deceased. She testified that she had resided at Vadakkanadu, Eachakunnu along with her husband, two children, and parents. Her husband was a loading worker at the FCI Godown, Meenangadi. On the fateful day, at about 8:00 p.m., she and her husband had gone to sleep. At that time, the accused came to their house and asked ”Where is Thomas?”. Her father, Poulose, opened the door. Her husband came out of their house. At that time, Mohanan started uttering abuse at him. The accused challenged and provoked the deceased to get him out of the house. She tried to prevent him from coming out of the house and pulled him back. However, the accused persuaded the deceased and managed to take him to the road. The accused was followed by the deceased and PW2. They proceeded to the road through the courtyard of PW1, Baby. When they reached the road, the accused took a gun and fired on her husband. The deceased screamed, uttering the words ‘ayyo’. Blood oozed from the injuries, and the intestine came out of the abdomen. On hearing the cries, PW1 came to the scene. She told PW1 that the accused fired at her husband. Her husband collapsed on her. Thereafter, she placed him on her lap. In the meanwhile, the accused went away along with the gun. She saw the incident in the moonlight. Thereafter, the neighbours took the injured to the Government Hospital, Bathery, but they could not save his life. Later, she came to know that there was a quarrel between the accused and the deceased with regard to taking meat and arrack. She used to call her husband ‘Chettayi’. She added that when the accused came to their house, there was nothing in his hand. The gun was hidden at some place by the accused. It was a country gun. She identified the weapon of offence as MO1. She stated that the handle of the gun was in a broken position.

                  15.1 On being cross examined, she stated that she had not noted any features of MO1 gun at the time of the incident. After the incident, she saw the MO1 gun for the first time in the court. She added that she had not seen the accused taking the gun. However, she would depose that she had noticed the accused pointing the gun and firing towards her husband. The accused left the place within two minutes of the incident along with the gun. She further stated that she could remember the weapon of offence she had seen seven years back for just two minutes. She has not noticed the handle of the weapon. She further stated that from their house to the place of occurrence, only she and her husband accompanied the accused.

                  15.2 When a definite question was asked by the defence counsel, whether she had any illicit connection with the tribal youth named Rajesh, she answered negatively. She denied the suggestion that she was speaking falsehood that the accused fired towards her husband. She asserted that she had seen the accused firing towards her husband. She denied the suggestion that she was present at the scene of occurrence and that is why she has not answered from where the accused took the gun.

16. PW3 (Poulose) is the father of the deceased. He testified that the incident was on 09.10.2011 at around 08:45 pm. He opened the door when the accused Mohanan came to their house, uttering abusive words against Thomas. According to him, he had seen the appellant standing in the courtyard of their house. The 1st accused told him that he wanted to converse with Thomas. In the meantime, Thomas came out of the house. According to PW3, due to provocation by the accused No.1, the deceased Thomas and his wife came out of the house and proceeded towards the road, following the accused. After a short while, he heard the sound of a gunshot followed by a cry. He came to know that the 1st accused had fired towards the deceased. Even though the injured Thomas was taken to hospital, his life could not be saved.

17. PW4 (Brucily C K ) was the attestor to Ext.P2 Inquest report. He had seen the seizure of MO2, dhoti, worn by the deceased at the time of the incident.

18. PW5 (Markose E P) has also witnessed the inquest. He put his signature in Ext.P2 Inquest Report. He has also witnessed the search conducted in the house of the 2nd accused. In the said search, the police have seized the empty cartridges of a gun. He put his signature in Ext.P3 search list, which was prepared two days after the incident. He identified the empty cartridges seized from the house of the 2nd accused as MO3 and MO3(a).

19. PW6 (E V Padmanabhan) is a neighbour of the deceased. He heard the sound of a gunshot followed by cries. When he rushed to the spot, he had seen PW1, his son, and PW5, boarding the injured into a car. He had also seen Gopinath, Shaji, Gopalan and Rajamani, PW9. He accompanied them to the hospital in the car of PW9, Rajamani. After examination, the doctor declared the death of Thomas.

20. PW7 (Shaji Mathew) is the cousin of the deceased Thomas. He has also heard the sound of a gunshot and cries. He also deposed similar lines as that of PW6.

21. PW8 (N Gopalan) is a neighbour of the deceased Thomas. He also gave a similar account about the incident as that of PW7.

22. PW9 (Rajamani K S) reached the spot after hearing the hue and cry. He, along with PWs.1, 7 and 8, took the injured to the hospital. He noted a bleeding injury on the abdomen of the injured.

23. PW10 (Abey K N) testified that he was not present at the time of the arrest of the accused No.1. He stated that he has witnessed the search in the house of accused No.1, Mohanan, and the seizure of cartridges from a cover. He put his signature on Ext.P5 search list. He has also identified MO5 (Plastic Cover) and MO6 series cartridges.

                  23.1 He has also witnessed the seizure of cartridges from the house of the 1st accused as per Ext.P6 seizure mahazar.

24. PW11 (Kuttappan K. B.) stated that he does not know from where the 1st accused obtained the gun allegedly used in the incident. He further stated that the 2nd accused, Jose C.A., was not acquainted with him. He has not stated to the police from where the accused No.1 obtained the gun. He was examined to prove that the 1st accused got MO1 gun from the 2nd accused, Jose C.A., but he could not support the prosecution case.

25. PW12 (Ajayan A.) was also examined to prove that the 1st accused obtained the gun from the 2nd accused. But he also turned hostile to the prosecution.

26. PW13 (Sunny K. M.) is a witness to the search of the house of accused No.2 and the seizure of empty cartridges from his house and preparation of Ext.P3 search list. He put his signature in Ext.P3 search list and identified MO3 and MO3(a) empty cartridges.

27. PW14 (N M Sahir) was examined to prove that the 2nd accused, Jose, was the employee of the estate of his father at Muttil, Wayanad, and the said Jose had handed over a gun owned by his father to the 1st accused. But PW14 did not support the prosecution case.

28. PW15 (Jidush A K) was a signatory to Ext.P9 Arrest and Inspection Memo prepared at the time of the arrest of the 1st accused. He denied that he had seen the seizure of empty cartridges from the house of the 1st accused.

29. PW16 (Karthyani) is the mother of the 1st accused. She stated that the accused is residing in the house owned by her.

30. PW17 (T. G. Pradosh) was the Village Assistant of Kidaganadu Village. He inspected the scene of occurrence and prepared Ext.P11 scene plan.

31. PW18 (C. Kunhan) has prepared Ext.P12 certificate stating that the place of occurrence is a pathway.

32. PW19 (K.M. Saraswathi) was the Secretary, Noolpuzha Panchayat, who issued Ext.P13 ownership certificate. According to PW19, the house bearing No.NP/11/601 is owned by Karthyani, wife of Narayanan. The said house was renumbered as NP/11/62 in the year 2009. Ext.P13 is the ownership certificate issued by her.

                  32.1 The house bearing No.NP/1/228 is owned by P.V. Poulose Poulose, Son of Varkey. Ext.P14 is the ownership certificate issued by him.

33. PW20 (Mini D.) Scientific Assistant, Forensic Science Laboratory Unit, Wayanad, who accompanied PW28 at the place of occurrence. She testified that on 10.10.2011, he visited the scene of occurrence and seized bloodstains from the place of occurrence. The said samples were packed, sealed, and handed over to the Investigating Officer for detailed examination after preparing Ext.P16 report.

34. PW21 (Suresh Babu) is the photographer, District Police Headquarters, Wayanad, who took the photographs of the place of occurrence.

35. PW22 (Sasikumar.K.V.) is the Senior CPO, Ambalavayal Police Station, who assisted PW28, the Investigating Officer, in the investigation. He was present when the accused was arrested and produced at the police station. He witnessed the procedure of tracing out the gunpowder from the hands of accused No.1 using cotton gauze dipped in distilled water. He was also a witness to Ext.P20 seizure mahazar for the seizure of the materials used for the process. He accompanied PW28 at the place of occurrence and was present while preparing the scene mahazar. He was an attesting witness to Ext.P21 seizure mahazar for the seizure of two packets containing blood stains collected from the place of occurrence. He was also a witness to Ext.P22 seizure mahazar by which PW28 seized the pellets recovered from the body of the deceased. He was an attesting witness to Ext.P23 mahazar whereby the dried skin of the deceased was seized.

36. PW23 (Prasanth T.M.), CPO, Sulthan Bathery Police Station, testified that he collected the pellets (MO8) in a sealed cover handed over by the Forensic Surgeon, which was recovered from the body of the deceased. He identified MO8 pellets in the court.

37. PW24 (Sadanandan. A. K.), Senior Civil Police Officer, Sulthan Bathery Police Station. He deposed that on 02.12.2011, at 18:00 hours, he received the dried skin collected from the body of the deceased Thomas during the post-mortem examination conducted by the doctors of the Medical College Hospital, Kozhikode.

38. PW25 (M.A. Santhosh), Sub Inspector of Police, Sulthan Bathery, registered Ext.P1(a) FIR on 09.10.2011, on the basis of Ext.P1 FIS lodged by PW1.

39. PW26 (Dr. P. A. Sheeju), Assistant Police Surgeon, Medical College, Kozhikode, conducted the autopsy of the deceased Thomas on 10.10.2011, and issued Ext.P24 report. In Ext.P24, Dr. P. A. Sheeju, has noted the following antemortem injuries :

                  1. Lacerated penetrating wound 7x4cm, oval shaped on front of abdomen left side with inner end 6cm cuter to midline and 7cm below costal margin, upper border was 18cm below nipple, lower border was 106cm above heel, the margin of wound showed scalloping. There were multiple lacerated punctured wounds 0.3x0.3cm to 0.5x0.5cm over an area 11.5x9cm around the wound, dense on the upper left quadrant.The wound continued to the peritoneal cavity. The small intestine showed multiple lacerations varying in size 0.2x0.5cm to 3cm in its proximal 1/3 rd . Mesentery showed multiple tears varying in size 0.2x0.3cm to 0.5x0.5cm. The front wall of the stomach showed a laceration 11cm long at its middle. Abdomen aorta just above its bifurcation showed multiple lacerations 0.2-0.3cm in diameter. A pellet 0.2x0.3cm was seen inside the aorta. There was retroperitoneal hematoma. Multiple pellets of size 0.3x0.3cm to 0.4x0.4cm were seen embedded in the soft tissues, intestine cavity, omentum, blood clots and in the soft tissues and muscles over the lower vertebral column. Two deformed plastic wads 1.8cm in diameter were seen in the peritoneal cavity. The abdominal cavity contained 1.5litres of fluid blood and 500gms of blood clots.

                  2. Superficial laceration 1.5x0.5cm with contusion around on front of abdomen 3cm below injury No.1, 5cm outer to midline.

                  3. Multiple round to oval abrasion varying in size 0.1 x 0.1cm to 0.5x0.5cm over an area 7x7cm on left side of abdomen just outer to injury No.1, some merging its outer margin of injury No.1.

                  4. Abrasion 10x1cm oblique, on outer aspect of left side of chest, upper inner end at anterior axillary line 15 cm below armpit.

                  5. Multiple abrasions over an area 10x7cm varying in size 0.1x0.1cm to 4x0.2cm on front of right ankle and top of foot.

                  6. Multiple abrasions over an area 10x5cm varying in size 0.5x0.3cm to 2x3cm on the outer aspect of the left knee and leg.

                  7. Abrasion 0.2x0.2cm on inner aspect of right arm 9cm above elbow.

                  8. Linear abrasion 2x0.1cm on inner aspect of root of right index finger.

                  9. Abrasion 5x1cm oblique on back of chest, right side upper inner end 10cm outer to the midline and 17cm below top of shoulder.

                  39.1. PW26 opined that the deceased died due to a gunshot injury sustained to the abdomen. He further opined that Injury No.1 can be caused by a gunshot, and this injury is fatal enough to cause instant death.

                  39.2. During cross-examination, he further opined that it was unlikely to cause injury Nos. 4 to 9 by firing from the MO1 gun. Injury No.4 could be caused by a frictional force. Injury No.4 to 9 could be caused by falling on a rough surface. He further opined that the Injury Nos. 5 and 6 can occur on a single fall. He stated that he did not remember whether the Investigating Officer had shown him MO1 gun at the time of autopsy or thereafter and that, being not an expert in the field, he could not comment upon MO1 gun.

                  39.3. He stated that the shape of an injury would depend on various factors, including the position of the shooter and the victim, the angle at which the gun was held, the manner in which the pellets were discharged from the weapon, and the movements of the shooter and the victim at the time of shooting. He further stated that Injury No.1 was neither caused from a close range nor from a long range and that such an injury could be caused from a distance ranging between 30 cm and 1.5 metres. He stated that, ordinarily, the pellets would not pierce through the entire body and emerge therefrom. He also stated that the aorta is situated deeper than the stomach.

Defence version

40. The 1st accused filed a detailed written statement under Section 313(5) of Cr.P.C. It is stated that PW2 has enmity towards the 1st accused. It is further stated that the reason for the enmity is that she had a misconception that it was the 1st accused who divulged the illicit relationship between PW2 and one Rajesh, a tribal youth, to the deceased. It is further stated that the appellant was an active worker of a political party and that, after he left the party, the incident was used to seek vengeance and falsely implicate him.

                  40.1 Further, it is stated that the deceased Thomas had enmity with certain tribal persons and they had amputated the palm of the deceased Thomas.

                  40.2 It is further stated in the written statement that the 1st accused was a handicapped person, having only nine fingers, and that his right hand was paralysed and dysfunctional, rendering him incapable of using the gun with his right hand. He was innocent and falsely implicated in this case.

Judicial Evaluation

41. Now, we shall proceed to evaluate and reassess the evidence let in by the prosecution in view of the submissions advanced by the learned counsel for the appellant and the learned Public Prosecutor.

The evidentiary value of the solitary eyewitness

42. The learned Sessions Judge was of the view that the evidence of the solitary eyewitness, Seena, is reliable and credible. The learned Sessions Judge further concluded that the evidence of PWs.1, 3 and 6 to 8 would lend corroboration to the evidence of PW2, the solitary eyewitness. The learned Sessions Judge has placed reliance on the recovery of MO1 gun from the possession of the 1st accused to sustain conviction against him.

43. The learned counsel for the appellant argued that PW2 was not present at the scene of occurrence and that she is a planted witness. According to the learned counsel, her statement was recorded three days after the incident. Further, the nightie worn by PW2 was not seized and sent for chemical examination by the investigating agency.

44. Before further discussion, it may be fruitful to examine in detail the law laid down by the Apex Court and the legal position with regard to the appreciation of the evidence of a sole eyewitness.

45. In Vadivelu Thevar v. State of Madras 2 , the Apex Court observed that it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

                  (1) Wholly reliable.

                  (2) Wholly unreliable

                  (3) Neither wholly reliable nor wholly unreliable.

                  Paragraphs 14 and 15 of the said case read thus:

                  “14. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. S.134 of the Indian Evidence Act has categorically laid it down that "no particular 2 AIR 1957 SC 614 number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in S.134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature had given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime had been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

                  (1) Wholly reliable.

                  (2) Wholly unreliable.

                  (3) Neither wholly reliable nor wholly unreliable.

                  15. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”

46. The principle enunciated in Vadivelu Thevar (supra) is reiterated in Ramratan and Others v. State of Rajasthan 3 , Balaram v. State of 3 [ AIR 1962 SC 424] Madhya Pradesh 2023 KHC 7189 , and Eknath Kisan Kumbharkar v. State of Maharashtra 2024 KHC 8450.

47. In Jarnail Singh v. State of Punjab 2009 KHC 146 the Supreme Court held that the conviction could be based on the sole testimony of a solitary eyewitness, but in order to be the basis of conviction, his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish.

48. According to PW2, Seena, the 1st accused, came to her house and started uttering abusive words against her husband. The 1st accused challenged and provoked the deceased to go out of the house. The 1st accused persuaded the deceased and managed to take him to the pathway near their house. The deceased and PW2 followed the 1st accused. The version of PW2 is that when they reached the pathway, the 1st accused took MO1 gun and fired at the deceased from a short distance. Her husband collapsed and fell into her lap with a bleeding injury on his abdomen. His intestine came out of the abdomen.

49. According to PW2, PWs.1, 3 and 6 to 8 rushed to the scene of occurrence. PW9 took the injured to the Government Hospital, Sulthan Bathery, [ where he was declared dead.

50. In cross examination, she stated that the accused No.1 came to her house unarmed. When they reached the pathway, the accused took a gun and fired at her husband. But she would say that she did not see the place from where the gun was taken. She would further add that within two minutes of the alleged incident, the accused left the place. In cross examination, she admitted that the gun allegedly seized from the accused was not shown to her during the investigation and she had seen MO1 gun for the first time after the lapse of seven years in court. She would further say that she has not noted any physical features of the gun. At the time of identifying the MO1 gun in court, she would say that the handle of the gun was in a broken position.

51. It is pertinent to note that the definite and consistent case of the prosecution is that the injured fell into the lap of PW2, followed by the gunshot with a bleeding injury. If that be so, the nightie worn by PW2 might have been covered with blood. The Investigating Officer has failed to seize the nightie which was worn by PW2 at the time of the incident for the reasons best known to him. If the prosecution story is believed on its face value, the best evidence would be the blood stained nightie worn by PW2, Seena. The non-seizure, non-production and non-sending of this vital piece of evidence casts serious doubts about the alleged presence of PW2 at the place of occurrence. It is interesting to note that no evidence whatsoever was adduced for the non-seizure of this vital piece of evidence.

52. On a careful consideration of the evidence of PW2, we find some merit in the argument advanced by the learned counsel for the appellant that the very presence of PW2 at the scene of occurrence is doubtful. From the records, we find that the version of the sole eyewitness is neither wholly reliable nor wholly unreliable. Her evidence would come within the purview of the third category as per the classification in Vadivelu Thevar (Supra). In such circumstances, the courts seek corroboration from some other evidence.

The Evidence of other witnesses, who reached the scene of occurrence

53. PWs.1, 3 and 6 to 9 reached the place of occurrence immediately after the incident. PW3, Poulose, is the father of the deceased and others are neighbours. According to these witnesses, none of them had seen the incident of firing. But they heard the sound of a gunshot. It is pertinent to note that none of them had seen the appellant with a gun in his possession. They would depose that when they reached the scene of occurrence, the deceased was lying on the lap of PW2 with a bleeding injury. At that time, according to the witnesses, PW2 was wearing a nightie. PW9, along with PWs.7, 8 and PW1 took the injured to Government Hospital, Bathery, where the injured breathed his last.

54. PW1, Baby, the elder brother of the deceased, had seen the appellant prior to the incident. According to him, at that time, the accused was uttering obscene words against the deceased. Even according to PW1, he had seen the appellant unarmed.

55. The evidence of these witnesses, at the most, may indicate that the accused was present at the place of occurrence.

56. A careful scrutiny of the evidence of PW1, PW3 and PWs.6 to 9 is insufficient, in our view, to prove that the accused No.1 is the perpetrator of the crime.

The Sufficiency of light at the scene of occurrence

57. Another contention of the learned counsel for the appellant is that there was no sufficient light at the scene of occurrence, which was a pathway. According to PW2 and the other witnesses, they had seen and identified the assailant in moonlight. None spoke about the presence of any electric light. The learned counsel for the appellant submitted that the place of incident is a pathway having a width of one and a half feet surrounded by areca nut plantation and other trees, and it is difficult to identify persons at the place of occurrence in the midst of the plantation.

58. In the instant case, the prosecution has failed to prove the significant fact as to the sufficiency of light at the scene of occurrence.

The Recovery of the Gun

59. PW28, the Circle Inspector of Police, took up the investigation on 10.10.2011 itself. On that day at about 1:30 a.m., he had seen the 1st accused hiding himself at Vadakkanadu. He questioned the accused and seized a country gun and an empty cartridge from the pocket of his shirt. He was arrested from that place in the presence of witnesses after preparing Ext.P9 Arrest and Inspection Memo. MO1 gun was seized from him at about 1:40 a.m. through Ext.P6 mahazar. In Ext.P6 mahazar, it is not stated that MO1 country made gun was not packed, tied and sealed at the time of seizure. So also, MO3 series of cartridges allegedly seized were not properly packed, tied and sealed.

60. The learned counsel for the appellant has placed reliance on the judgment of the Apex Court in Amarjit Singh @ Babbu (Supra) wherein the Apex Court observed that the non-sealing of the revolver at the spot is a serious infirmity as the possibility of tampering cannot be ruled out. This was later followed by the Apex Court in Sahib Singh v. State of Punjab (1996) 11 SCC 685

61. At this juncture, it would be profitable to extract the relevant paragraph of Amarjit Singh @ Babbu (Supra), which reads thus :

                  “7. The entire prosecution case, thus, is clouded with a number of infirmities which compel this Court not to accept such unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out . The report of PW4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver.” (emphasis supplied)

62. It is pertinent to note that PW10 (Abey K.N.) and PW15 (Jidush A.K.), the independent witnesses to the seizure of MO1 gun, turned hostile to the prosecution.

63. In the case on hand, the Investigating Officer has seized the gun and the cartridges without properly observing the procedural formalities like the packing, tying and sealing. The non-compliance with the procedural safeguards at the time of seizure and the hostility of the independent witnesses to the alleged seizure cast serious doubts on the veracity and truthfulness of the prosecution story.

Delay in forwarding MO1 Gun to the Jurisdictional Court

64. MO1 gun and MO3 series cartridges were allegedly seized from the 1st accused on 10.10.2011 at 1:40 a.m., as per Ext.P6 seizure mahazar. But, as per Ext.P37 property list, these articles reached the jurisdictional Magistrate only on 17.10.2011. No explanation is offered by the Investigating Officer for the delay of about seven days in producing the articles before the jurisdictional court. The inordinate and unexplained delay in producing the material objects is a serious infirmity in the prosecution evidence. No evidence is adduced by the Investigating Officer that the objects were kept in his safe custody. Therefore, the possibility of tampering of evidence cannot be ruled out.

Non-examination of material witness

65. CW5, Sabin, who allegedly reached the scene of occurrence, was not examined even though cited as a witness. Moreover, it is pertinent to note that the prosecution has not adduced any evidence of a ballistic expert in this case. In a case of this nature, wherein the death of the victim was caused by the use of a firearm, the prosecution could have obtained the assistance of a ballistic expert to examine the gun and the pellets to prove that the pellets recovered from the abdomen of the deceased could be used in MO1 gun.

66. Before further discussion, it would be profitable to refer to the relevant provisions of the Indian Evidence Act and the law laid down by the Apex Court on this point.

                  66.1 Section 45 of the Indian Evidence Act reads thus:

                  45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts.

67. In Gurcharan Singh v. State of Punjab 1962 SCC OnLine SC 42 , a Bench of Hon’ble three Judges of the Apex Court held that there can be no inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured, or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case must naturally depend upon the circumstances of each case. (emphasis supplied)

68. In the case on hand, we have already found that the evidence of the sole eyewitness is unreliable and unworthy of credence. In such circumstances, the failure of the Investigating Officer to seek the opinion of the ballistic expert and the non-examination of the ballistic expert assume great significance.

The Motive

69. The motive for the commission of a crime is locked in the mind of the perpetrator of the crime. In a case which rests entirely on direct evidence, the proof of motive does not assume much significance. However, the proof of motive may corroborate the other evidence adduced by the prosecution.

70. In State of Gujarat v. Anirudhsingh and Another 1997 (6) SCC 514 , the Apex Court observed that the motive gets locked upon into the mind of the makers and it is difficult to fathom it. If motive is proved, that would supply a chain of links, but absence thereof is not a ground to reject the prosecution case.

71. In Jaikam Khan v. State of U.P. (2021) 13 SCC 716) , the Apex Court observed that no doubt that, in case of direct evidence and the ocular testimony of the eyewitness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for the crime. However, in the present case, as we have already held hereinabove, the testimony of the eyewitnesses could not be said to be wholly reliable; the motive aspect would be a relevant factor.

72. In the instant case, the admitted case of the prosecution is that the 1st accused and the deceased are friends and they had a quarrel between them with regard to the taking away of wild meat and illicit arrack by the deceased from the possession of the accused. According to the prosecution, this prompted the accused to commit the murder. The learned counsel for the appellant pointed out that a man of reasonable prudence may not venture to commit the murder of his own friend for this trivial reason.

73. Finally, the learned counsel would point out that even if the prosecution case is taken on its face value, the prosecution has failed to allege and prove that the accused was present at the place of occurrence and uttered some obscene words against the deceased. No evidence whatsoever is forthcoming to prove that the appellant is the perpetrator of the crime. According to the learned counsel, the available evidence is insufficient to sustain conviction against the appellant.

74. We have carefully and meticulously evaluated the evidence of this case. The entire prosecution narrative revolves upon the evidence of the sole eyewitness PW2 (Seena), who is none other than the wife of the deceased. The trial court found the appellant/accused guilty of the charge mainly on the evidence of PW2. Her version appears to be not reliable, absolutely unnatural, and untrustworthy. Her presence at the scene of occurrence is very much doubtful. In the absence of corroboration on material particulars, the conviction cannot be sustained on the basis of the testimony of a sole eyewitness, in our view. On a careful analysis of the evidence on record, we are of the view that the appellant is entitled to the benefit of doubt, as the prosecution has failed to prove his guilt beyond reasonable doubt.

75. The evidence adduced by the prosecution to prove the guilt of the appellant beyond reasonable doubt is deficient, in our view. The appeal succeeds.

In the result,

(i) Criminal Appeal No . 789 of 2020 is allowed.

(ii) The impugned judgment of the learned Additional Sessions Judge - II, Kalpetta, Wayanad, in S.C. No.27 of 2015 is set aside.

(iii) The appellant/1st accused is acquitted and is set at liberty.

(iv) The bail bond, if any, executed by the accused stands cancelled.

(v) Fine, if any, paid by him shall be refunded.