minal Appeal No 757 of 1985
From the Judgment and Order dated 6111984 of the Gauhati High Court in Criminal Appeal No 11 of 1979
Sunil Kumar Jain PD Tyagi and Vijay Hansaria for the Appellant
SK Nandy for the Respondent
ANAND J Anil Phukan and his brothers Mahendra Phukan and Jojneswar Phukan were tried for an offence under Section 30234 IPC for the murder of one Trinavan Chandra Baruah on 2131976 at about 8 pm
The learned Sessions Judge convicted all the three brothers for the said offence and sentenced each one of them to suffer imprisonment for life 392 An appeal was preferred by all the three brothers against their conviction and sentence in the Gauhati High Court
A Division Bench of that court vide judgment dated 6111984 upheld the conviction and sentence of all the three
A Special Leave Petition Crl No 56185 was preferred by Mahendra Nath Phukan and Anil Phukan the third brother Jojneswar however did not file any special leave petition
On 291985 the special leave petition as regards Mahendra Nath Phukan was dismissed while notice was issued in the petition as regards Anil Phukan
Subsequently on 29101985 special leave was granted to Anil Phukan and on 2941986 he was also directed to be released on bail to the satisfaction of the Chief Judl
Magistrate Golaghat  Assam
We are therefore at this stage concerned only with the criminal appeal by special leave of Anil Phukan
In brief the prosecution case is that the appellant Anil Phukan had borrowed a sum of Rs 450 from Trinayan Chandra Baruah deceased and had executed two hand notes exhibit 7 and exhibit 8 promising to repay the amount on 2131976
However he did not repay the amount On 2131976 the deceased accompanied by his nephew Ajoy Baruah PW3 proceeded to the village of the appellant and as he was getting late Ajoy Baruah PW3 carried with him a torch light
The distance of the house of the deceased from that of the appellant is about one furlong
Anil appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money he asked them to wait there and proceeded towards his house
Later on when Anil did not return for some time the deceased alongwith Ajoy PW3 proceeded towards the house of the appellant when they found all the three brothers coming towards them variously armed
Mahendra had a crowbar while jojneswar had a crooked dao and Anil a kupi dao
Ajoy PW3 apprehended some danger from the appellant and his brothers but his uncle told him that since they had done no wrong they need not be afraid of any assault
On coming near the deceased and Ajoy PW3 Mahendra who came first gave a blow to Trinayan on his head with the crowbar the other two brothers also allegedly assaulted the deceased thereafter
Ajoy PW3 pulled the deceased towards his house and implored the accused not to assault him
At the asking of his uncle Ajoy PW3 ran away to his house and gave the information to the wife of the deceased PW5 Debayani Baruah about the occurrence
He also narrated the occurrence to PW4 Bijoy Baruah
the wife of the deceased went to PW6 Punaram Gogoi and after telling him as to what had been told to her by Ajoy PW3 she requested him to accompany her to the place of 393 occurrence
On reaching the place of occurrence they found Trinayan lying on the spot with injuries on his person but he was still alive
Pws Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW7 and after lifting the body of Trinayan with some difficulty brought it to his house and kept it in the verandah
However before any medical aid could be provided the deceased succumbed to the injuries at night
The first information report was lodged at Golaghat Police Station the next day in the afternoon at 1230 pm by Surendra Nath Gogoi PW2
During the investigation some weapons including an axe were seized from the house of Mahendra accused
On the same day Mahendra was arrested at about 645 pm
The other two brothers Anil and Jojneswar surrendered subsequently in the court
The IO prepared the sketch plan of the place of occurrence and sent the body for postmortem examination
The autopsy revealed that the deceased had two incised injuries on the head besides one swelling and an injury on the inner part of his thigh
The prosecution in all examined 12 witnesses to connect the accused with the crime
This case primarly hinges on the testimony of a single eye witness Ajoy PW3
Indeed conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability
So long as the single eye witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone
However where the single eye witness is not found to be a wholly reliable witness in the sense that there are some circumstances which may show that he could have an interest in the prosecution then the courts generally insist upon some independent corroboration of his testimony in material particulars before recording conviction
It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect
It is in the light of these settled principles that we shall examine the testimony of PW3 Ajoy
Ajoy PW3 on his own showing is the nephew of the deceased
He had accompanied the deceased to the place of occurrence when the later went to recover the loan from Anil appellant
This witness therefore is a relative of the deceased and an interested witness
Of course mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy
In the normal course of events a close relation would be the last person to spare the real assailant 394 of his uncle and implicate a false person
However the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore as a matter of prudence we shall look for some independent corroboration of his testimony to decide about the involvement of the appellant in the crime
Since there are some doubtful aspects in the conduct of Ajoy PW3 it would not be safe to accept his evidence without some independent corroboration direct or circumstantial
The unnatural conduct of Ajoy PW3 which has come to our notice from the record is that though he was present alongwith the deceased at the time of occurrence on 2131976 at about 8 pm he made no attempt to save his uncle from the assault
He did not even continue to stay there though of course according to him he ran for his life on being advised so by his uncle
He was not assaulted though both he and his uncle were unarmed
Even if Mahendra was engaged in assaulting the deceased Anil who was also allegedly armed neither made an attempt to assault Ajoy PW3 nor even chased him
PW3 Ajoy did not himself lodge the FIR
Of course he gave information about the occurrence to PW4 PW5 PW7 and others immediately after the occurrence describing the manner of assault and the names of the assailants but why he did not lodge the FIR has not been explained by him
In his testimony in the court he deposed that after Mahendra accused gave blow with the crowbar on the head of the deceased other accused also assaulted him
He did not describe as to on which part of the body of the deceased had Anil and Jojneswar caused the injuries and made a general vague statement without assigning any particular injury to either of them
When we look to the medical evidence we find that the deceased had suffered two injuries on his head and no other injury on any other part of the body
In all four injuries were recorded in the post mortem report
The other two injuries according to the doctor could have been the result of a fall and indeed looking to the nature of those injuries which are in the nature of a swelling on the back of the interscapular region and a lacerated wound on the interior aspect of the right thigh it is possible to agree with the medical witness PWl Dr Ganesh Ch
Buragohain that those injuries could have been caused by a fall and were not the result of any direct impact with a weapon of assault
Both the head injuries are almost of the same dimensions
The possibility therefore that both the injuries had been caused to the deceased by Mahendra with the crowbar who according to PW3 had hit the deceased on the head cannot be ruled 395 out
In this connection it would also be relevant to not that according to the testimony of the Investigating Officer PW11 Abhiram Taye all the weapons like the crowbar ExM5 a dao an axe and a hand dag were recovered only from the house of Mahendra
We have it from the testimony of PW3 and the first informant PW2 that all the three brothers lived separately
No recovery was affected from the house of the appellant Anil at all
All that was seized from his house were two bonds Ex7 and Ex8 undertaking to repay the loan to the deceased
Unlike Mahendra accused he was not even arrested on the date of the occurrence and the mere ipse dixit of the investigating officer that Anil had absconded is not acceptable particularly when the investigating officer is totally silent as to where all he had made the search for the appellant and when
He was not questioned under Section 313 Cr
PC about the allegation of absconding either
The deceased was still alive when his wife and the other co villagers who have appeared as witness reached the place of occurrence
The deceased did not name the appellant as his assailant before anyone
The crowbar exhibit 5 was recovered from the house of Mahendra and according to the testimony of PW3 it was the same weapon with which Mahendra had hit deceased on his head which position also receives corroboration from medical evidence
The deposition of PW4 who is the sister of PW3 Ajoy to the effect that when Ajoy PW3 came running to the house he told her that her uncle had been killed by Anil and his brothers does not stand scrutiny because admittedly according to PW3 himself when he ran from the place of occurrence the deceased was still alive and as a matter of fact he was alive even when the wife of the deceased and other neighbours reached there and brought him to the house
It was only at the house while the deceased was kept in the verandah that he succumbed to the injuries
There could have been therefore no occasion for Ajoy PW3 to have told his sister PW4 that her uncle had been killed  by Anil and his brothers
This also shows that Ajoy PW3 has the tendency to exaggerate matters
The medical evidence is consistent with the theory that the deceased had been assualted only by one person and not by all the three brothers as alleged by the prosecution
The possibility therefore that Mahendra accused alone had caused injuries on the deceased cannot be ruled out
May be on account of the recovery of the two bonds Ex7 and Ex8 from the house of Anil he was also implicated
We cannot be sure
The origin of the fight is totally in obscure and the prosecution has not explained the genesis of the origin of the fight either
It is not even the case of the prosecution that Anil had refused to repay the loan or that any hot words 396 or abuses had exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan
In view of the infirmities pointed out above it would not be safe to rely upon the testimony of Ajoy PW3 the sole eye witness without looking for independent corroboration and as already noticed the corroboration furnished by the prosecution unlike in the case of Mahendra is negative in character in so far as the involvement of Anil appellant is concerned
In our considered opinion therefore it would not be safe to hold that the prosecution has established its case against Anil appellant beyond a reasonable doubt
The appellant in our opinion is entitled to the benefit of doubt and granting him that benefit we set aside his conviction and sentence for the offence under Section 30234 IPC and consequently the judgment of the High Court in so far as Anil appellant is concerned is set aside and he is hereby acquitted
Anil appellant is on bail
His bail bonds shall stand discharged
NVK Appeal allowed


Summary:
Different varieties of cotton yarn were manufactured by the appellant Mills
Packing of the yarn was done in two forms viz cone form which was used in powerloom and hosiery industry and hank form which was exclusively consumed by the handloom industry
For the cone form of packing the ring frame cops were fed to the winding machines and for the hank form of packing the cops were fed to the reeling machines
The appellants were packing the yarn in cone form only
Since they had not installed the reeling machines they could not pack the yarn in hank form
In exercise of powers under S3 of the  Textile Control Order 1986 was issued by the Government
Clause 16 of the said order gave power to the Textile Commissioner to issue directions providing the manner of packing of yarn in hanks cones or in any other form and in such proportion as he deemed necessary or ex pedient
It also laid down the complete guidelines for exercise of the powers by the Textile Commissioner
Exercising his powers under clause 16 of the 1986 Order the Textile Commissioner issued a notification on 29390 which was amended on 11590 and 17590
According to the Notification every producer of yarn should pack in hank form at least 50 404 of the total yarn packed by him during each half yearly period for civil consumption
The appellants challenged the constitutional validity of clause 16 of the Textile Control Order 1986 and the Notification issued thereunder by filing Writ Petitions before the High Court
The Writ Petitions were dismissed and the appellant Mills preferred the present appeals
The appellants contended that an identical notification dated 2961979 issued under the Textile Control Order 1948 was struck down by the High Court and the said judgment having been upheld by this Court the respondents were bound by the same and the Textile Commissioner had no authority to issue a fresh notification in similar terms and that the appellants could not be compelled to manufacture something for which the appellants have not installed necessary machinery and other super structure
It was further contended that the Notification was violative of Articles 14 and 191g of the Constitution of India
Dismissing the appeals this Court HELD 1
The present notification under challenge has been issued under Clause 161 of the Textile Control Order 1986
Unlike Clause 215 of the 1948 Order proviso to Clause 161 of the 1986 Order provides complete guidelines to the Textile Commissioner to issue the directions envisaged thereunder
409G H Sri Rani Lakshmi GS  W Mills Pvt Ltd  Others vs Textile Commissioner Bombay  Ors AIR 1986 Madras 66 distinguished
In order to make available sufficient quantity of hank yarn at reasonable price and also for the sustenance of Handloom workers engaged in the largest cottage industry in India it became necessary to reserve hank yarn for Handloom sector by making it obligatory on the part of the manufacturers of yarn to pack a certain percentage of their production packet for civil consumption in the form of hanks
Thus the notification has been issued in the interest of the general public and also for the larger interest of the textile industry and is not violative of article 191g of the Constitution of India
411B C 3
Having accepted the condition regarding packing of yarn in hank form while taking the licence under clause 4 of the Industrial Licence the 405 appellants cannot now turn round and say that they are not bound by the same
411F 4
There is no violation of article 14 of the Constitution since the notification has been made applicable uniformly to all the producers of yarn
The appellants are required to pack yarn in hank form in the proportion as provided in the notification keeping in view the total yarn packed by the mill concerned
In any case the grievance of the appellants has been substantially mitigated by the press note dated May 11 1990 issued by the Textile Commissioner reinstituting the erstwhile relaxation getting yarn obligation fulfilled by transfer of surplus yarn packing of another producer and allowing a producer to get hank yarn reeled through another producer having extra relying capacity
411G H 412A