JUDGMENT
F.C. Bansal, J.
1. The instant jail appeal is directed against the judgment dated May 26, 2001 passed by learned Additional Sessions Judge, Gangapur City whereby appellant Budh Singh has been convicted under Sections 302 of the Indian Penal Code and 3/25 of the Arms Act and sentenced to suffer imprisonment for life and a fine of Rs. 500/-, in default of payment of fine to further undergo imprisonment for one month and to suffer simple imprisonment for one year and a fine of Rs. 500/-, in default of payment of fine to further undergo one month’s imprisonment respectively.
2. Briefly stated the case of the prosecution is that on July 28, 1998 at 2.50 p.m. Parcha-Bayan Ex.P12 of PW11 Arjun Singh S/o Shri Kesar Singh, by caste-Rajput, aged 35 years, R/o-Khudsya, P.S. Gangapur City was recorded byPW14 Ramkaran, AS1, P.S. Gangapur City wherein it was interalia stated by Arjun Singh that Budh Singh is his elder brother. Except one house they had divided their land and other properties and are in possession of their respective shares for the last 25 years. It was also stated by Arjun Singh that they are not being allowed to reside in the aforesaid house by Budh Singh and his son Pancham Singh. Today at 12.00 noon his wife Mohan Bai and daughter Pappi Bai were standing on the ‘Chabutara’of the aforesaid house. At (hat time he was at the house of Mohar Singh. On hearing sound of gunshot, he came on the spot and found his daughter Pappi lying injured on the ‘Chabutara’. There were pellet injuries on her abdomen and below right elbow. He found Budh Singh also standing there armed with a gun. Pancham Singh had gone to Gangapur. It was further stated by Arjun Singh that Budh Singh confessed before him that he had killed Pappi and he would also kill him. Moti Singh, Nathu Singh, Jagdish Singh, Anand Singh, Mool Singh, Mukund Singh and other residents of his village came there. Thereafter they took Pappi to Gangapur hospital where she is under treatment. It was also stated in Ex.P12 that on account of partition of property, there is enmity between him and Budh Singh. On the basis of ‘Parcha-Bayan’ Ex.P12, a case was registered by the SHO, P.S. Gangapur City under Section 307 IPC Formal FIR is Ex.P30. Pappi was medically examined by PW12 Dr. N.K. Agarwal at 2.30 p.m. on July 28, 1998. In the course of investigation, the I.O. reached on the spot and prepared Site Plan Ex.PG on the same day. Blood smeared soil and control soil was seized and sealed vide Seizure Memos’ Ex.PI and Ex.P2. The appellant was arrested on 28.7.98 vide Arrest Memo Ex.P5 and on his disclosure statement and at his instance one barrel of S.B.M.I.,, gun with ramrod, three iron screws, one iron nail, one iron buckle for belt, one iron clip, one brass trigger, one brass patch box cover, one small brass plate of the butt, one brass ram rod holder, one iron strip, two different shapes metallic pieces and six small lead pieces. were recovered from the house of the appellant and after sealing these articles, the 1.0. prepared Seizure Memos’ Ex.P7 and Ex.P8, Pappi succumbed to her injuries at 7.10 p.m. on 2.8.98, Post-mortem examination was conducted by PW13 Dr. M.L. Kawat, Medical Jurist, S.M.S. Hospital, Jaipur at 11.45 a.m. on 3.8.98 and he prepared postmortem report Ex.P 17. On the death of Pappi, the I.O. proceeded with the trial for the offence under Section 302 IPC. Inquest Report Ex.PI 1 of the deceased was prepared. ‘Salwar’ and ‘Kurta’ which the deceased was wearing at the time of the incident were seized and sealed by the 1.0. vide Seizure Memo Ex.P13. Statements of the witnesses were recorded under Section 161 Cr.P.C. On completion of investigation, charge-sheet was laid against the appellant in the Court of Additional Chief Judicial Magistrate, Gangapur City who committed the case to the Court of Additional Sessions Judge, Gangapur City. Learned Additional Sessions Judge framed charges under Sections 302 IPC and 3/25 of the Arms Act against the appellant who pleaded not guilty and claimed to be tried. To prove these charges, the prosecution examined as many as 21 witnesses. In his statement recorded u/S. 313 Cr.P.C., the appellant pleaded innocence and false implication. He further stated that Pappi was killed by his son Pancham Singh. However, no evidence in defence was adduced.
3. Learned Additional Sessions Judge on hearing the final submissions, convicted and sentenced the appellant as indicated here-in-above.
4. We have heard learned Amicus Curiae for the appellant, learned Public Prosecutor and have also scanned and scrutinized the material on record.
5. It is not in dispute that the deceased Pappi met with the homicidal death. PW12 Dr. N.K. Agarwal, the then Medical Officer, U.P.H.C, Gangapur City deposed that at 2.30 p.m. on 28.7.98 he examined Pappi Bai D/o Arjun Singh, aged 18 years, by caste-Rajput, R/o- Khudsya and found the following injuries on her person:-
(1) Multiple punctured wounds about 30 in number on all over abdomen, size 1/2cm. x 1/2crn., wounds surrounded by black area 1/2cm., bleeding from all wounds.
(2) Abrasion 2cm. x 1/2cm. on anterior middle part of right forearm.
(3) Punctured wound 1/2crn. x 1/2cm. on posterior laterally right elbow region, surrounded by black area 1/2cm., bleeding present.
(4) Punctured wound 1/2cm. x 1/2cm. on posterior aspect of lower 1/3rd right forearm, surrounded by black area 1/2cm., bleeding pre sent.
Dr. Agarwal further stated that till X-ray he reserved his opinion in respect of injuries No. 1,3 and 4. Injury No. 2 was simple and caused by blunt weapon. Duration of injuries was within Jour hours. He prepared injury report Ex.P14. Dr. Agarwal also stated that as the condition of the injured was serious, he referred her to Jaipur hospital.
6. PW13 Dr. M.L. Kawat, Medical Jurist, S.M.S. Hospital, Jaipur stated in his deposition that on the application of the SHO, P.S. Moti Dungaree, Jaipur he conducted the post-mortem examination on the dead body of Ms Pappi D/o Arjun Singh, aged 18 years, by caste-Rajput, R/o-Khudsya, P.S. Gangapur City at 11.45 a.m. on 3.8.98. Pappi was admitted in the hospital on July 28, 1998 and expired on August 2, 1998. He found following injuries on her person:-
(1) Stitched wound 28cm. long on front of abdomen with one draining coming out of abdomen on left side (L flank) and two drains are placed over right side of abdomen (R flank) done surgically for treatment.
(2) Loop of small intestine out side abdomen in the stitched line U1/2 with a gut, done surgically for treatmen. . . . .
(3) Multiple lesions in front of abdomen and both sides, 24cm, left side and 9 cm. right side. 1/4×1/4 cm. circular with dark brown scab. On dissection-underlying tissues staining seen with track reaching unto abdominal cavity, the momentum and mesentery found stitched at places and adjacent to gut stitches applied at four places in small gut and gastro jejunum and few places of large gut. Peritoneum found stitched at places and plastid, there is slough and puss formation (found) at places in abdominal cavity and gut with dark color blood and burns. Five pellets were taken out from the underlying tissues and from abdominal centers.
(4) Four lesion circular 1/4×1/4cm. on right forearm with dark brown scab and two lead pellets taken out from underlying tissues.
Dr. Kawat further stated that all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. Injury No. 3 and 4 were caused by firearm. In his opinion, the cause of death was septicemia shock brought about as the result of injuries caused by firearm. He prepared post-mortem report Ex.P17.
7. Learned Amicus Curiae did not challenge the veracity of Dr. Agarwal and Dr. Kawat and we see no reason to disbelieve their testimony. Therefore, from the testimony of Dr. Agarwal and Dr. Kawat, it has been established by the prosecution beyond reasonable doubt that the cause of the death of Pappi was the injuries on her abdomen which were caused by firearm. Hence, homicidal death of deceased Pappi stands proved.
8. Learned Amicus Curiae contended that the prosecution case rests on the testimony of sole eye-witness PW4 Mohan Bai who being the mother of the deceased is interested as well as partisan witness and, therefore, her testimony should not be accepted as sufficient, in absence of corroboration from an independent witness, which is lacking in the instant case, to come to the conclusion that the prosecution has succeeded to prove its case against the appellant. It was also contended that on the basis of the testimony of sole eye-witness PW4 Mohan Bai, the appellant could not be held guilty for the murder of Pappi.
9. We have given our thoughtful consideration to the submissions made by learned Amicus Curiae for the appellant. The Apex Court in Lehna v. State of Haryana, (2002) 3 SCC 76), held as under:-
“We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.”
In Dalip Singh v. State of Punjab AIR 1953 SC 364, it has been laid down as under:
“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”
The above decision has since been followed in Guli Chand v. State of Rajasthan, AIR 1974 SC 276, in which Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 was also relied upon.
We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh Case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed. (AIR p. 366, Para 25)
“We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan- AIR 1952 SC 54 at p. 59(A). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”
Again in Masalti v. State of U.P., AIR 1965 SC 202, this Court observed:
“But it would, we think, be unreasonable to contended that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated, Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”
To the same effect is the decision in State of Punjab v. Jagir Singh, AIR 1973 SC 2407″.
10. In State of Punjab v. Jugraj Singh & Ors., (2002 3 SCC 234), while reiterating the same rule, the Apex Court indicated that the testimony of the witnesses could not be discarded only on the ground that they happened’ to’be the relations of the deceased. To the same effect are the decisions in Ashok Kumar Pandey v. State of Delhi, JT 2002 (3) SC 103, and Bhagwan Singh and Ors. v. State of M.P., JT 2002(3) SC 387.
11. In view of the above decisions of the Apex Court, the evidence of PW4 Mohan Bai cannot be discarded only on this ground that she happens to be the mother of the deceased,
12. In State of Haryana v. Ram Singh, 2002 2 SCC 426, the Apex Court held that:-
“Admittedly all the supposed eyewitnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simple an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence.”
13. Keeping in view the aforesaid decision of the Apex Court, the testimony of PVV14 Mohan Bai needs to be scanned and scrutinized.
14. PW4 Mohan Bai in her deposition stated that on the fateful day at about 12.00 noon her daughter Pappi Bai was standing at a distance of around 10 paces from ‘Chabutara’ of their house. She was also standing at some distance from Pappi Bai. She further stated that appellant Budh Singh fired his gun and caused injury on the abdomen of Pappi Bai. Thereafter appellant Budh Singh went to the roof of the house. It was also stated by Mohan Bai that when Pappi Bai asked the appellant not to damage the ventilators and drain of the house which was their joint property, the appellant became annoyed and fired his gun. PW4 Mohan Bai also stated that Motisingh, Nathusingh, Jagdish Singh, Anand Singh and other persons came at the place of occurrence.
15. In Esher Singh v. State of Andhra Pradesh, 2004 AIR SCW 1665, the Apex Court has observed that:-
“Mere relationship does not discredit the testimony of a witness. What is required is careful scrutiny of the evidence. If after careful scrutiny the evidence is found to be credit and cogent, it can be acted upon.”
16. We have carefully scrutinized the statement of PW4 Mohan Bai. The Trial Court has found her evidence to be reliable and truthful. There has been searching cross-examination but she has stood the test of cross-examination. The cross-examiner has not been able to make any dent in her testimony. We, therefore, see no reason to disbelieve PW4 Mohan Bai. Her presence on the spot is natural.
17. So far as the contention of learned Amicus Curiae that the appellant could not be held guilty on the testimony of sole eye- witness PW4 Mohan Bai is concerned, it has no force.
18. In Amrik Singh v. State of Rajasthan, 1993 Cr.LR (SC) 768, the Apex Court held that:-
“It is settled law that the evidence has to be weighed and not counted. The testimony of a sole eye-witness, whose testimony suffers from no infirmity whatsoever, can by itself form the basis of conviction. We have found Trilok Kumar (PW2) to be a highly reliable witness whose testimony suffers from no blemish at all. His testimony has also received corroboration from the medical evidence and other evidence. In Another case, State of Haryana v. Manoj Kumar, 1993 Cr.L.R. (SC) 688, the Apex Court held that Rohan (PW14) is the sole eye-witness of the fatal knock down by the accused. But, that cannot be held to be an infirmity of the prosecution case. A conviction can be based and the verdict of the Court can rest even on the testimony of a sole witness, if the Court is fully satisfied that such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt.”
19. In Munshi Prasad v. State of Bihar, 2002 1 SCC 351, it was held by the Apex Court that:-
“It is the quality of the evidence and not the quantity, which is required. The crux of the issue being has the prosecution been able to bring home the charges with the evidence available on record, if the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in the number of witnesses cannnl be lermed to be a requirement for the case.”
20. Apart from that, there is other evidence on record in support of PWI Mohan Bai.
21. TW3 Nathu Singh,’ PW5 Moti Singh, PW7 Jagdish Singh, PWi) Mool Singh and PW11 Arjun (father of the deceased) stated in their deposition that on hearing sound of gunshot, they arrived at the place of occurrence and found Pappi lying injured, ill was also stated by PW3 Nathan Singh that appellant Budh Singh was standing there at a distance of 7-8 paces from Pappi Bai. He was having a gun in his hands. PW5 Moil Singh also staled that when he reached at the place of incident, he found the appellant standing on ‘Chabutara’ and be was armed with a gun. Same is the statement of PW7 Jagdish Singh. It was also staled by PW9 Mool Singh that when he reached on the spot he found the appellant standing on the roof of the house. PWI I Arjun Singh, who is father of the deceased, deposed that on the fateful day appellant Budh Singh damaged ventilators and drains of their house which was their joint property and started abusing them, whereupon he went to the house of Bhanwar Singh for calling him to intervene. When he reached at the house of Bhanwar Singh he heard the sound of fire whereupon be came at the place of occurrence and found his daughter Pappi Bai lying injured near ‘Chabutara’. There were injuries caused by firearm on her abdomen. It was also stated by Arjun Singh that he found appellant Budh Singh standing on the roof of the house. On being asked, his daughter Pappi Bai told him that Budh Singh had caused injuries to her. He was also informed by Moti Singh, Natthu Singh, and Mohan Bai that appellant Budh Singh bad inflicted injuries with a gun on the person of Pappi Bai.
22. On close and careful scrutiny of the testimony of the aforesaid witnesses, we have found it cogent and credible. Despite lengthy cross-examination, their testimony could not be shattered. Thus, PW4 Mohan Bai gets corroboration from the testimony of the aforesaid witnesses. The medical evidence also supports her. The Trial Court has very carefully gone through the prosecution evidence and we have also undertaken the same exercise and in our opinion, the Trial Court has committed no error whatsoever in coming to the conclusion that the appellant had committed the alleged offence. Thus, in our considered opinion, the prosecution has succeeded in proving that the appellant Budh Singh had inflicted injuries with a gun on the person of Pappi Bai which resulted in her death.
23. The Trial Court has found the appellant guilty for the offence under Section 302 of the Indian Penal Code as the appellant had caused an injury by a gunshot on the abdomen of the deceased which is a vital part of the body. Because of the injury sustained by deceased Pappi Bai, she died. In these circumstances, it can safely be inferred that the appellant had the intention to cause the death of Pappi Bai or to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. In our opinion, the appellant has rightly been convicted for the offence under Section 302 of the Indian Penal Code by the Trial Court.
24. As regards the defence of the appellant taken in his statement under Section 313 Cr.P.C, it is false and cannot be accepted. Such defence was not put to any of the aforesaid witnesses during their cross-examination.
25. The Trial Court has also found the appellant guilty under Section 3/25 of the Arms Act. On close scrutiny of the prosecution evidence with regard to recovery of gun, we have found it trustworthy. Since the appellant was not having licence for keeping it in his possession, he has rightly been convicted under Section 3/25 of the Arms Act by the Trial Court.
26. For these reasons, we find no merit in the appeal. The same stands dismissed.