JUDGMENT
Garg, J.
1. This is appeal has been filed by the accused appellants against the judgment and order dated 6.11.2000 passed by the learned Additional Sessions Judge, Bhinmal (District Jalore) in Sessions Case No. 23/2000 by which he convicted the accused appellants for the offence under Section 304 Part-I read with 34 IPC in place of 302 IPC and further convicted them for the offence under Section 452 and 323 and 323/34 IPC and sentenced in the following manner:-
Name of
accused appellants
Convicted
u/Sec.
Sentence
awarded
1. Uka Ram
304 Part-Ir/w 34 IPC
Eight years’
Rl and to pay fine of Rs.2000/- in default of payment of fine, to further
undergo six months Rl.
452 IPC
One year Rl
and to pay fine of Rs. 100/- in default of payment of fine, to further
undergo 15 days Rl.
323/34 IPC
Six months
Rl and to pay fine of Rs.500/- in default of payment of fine, to further
undergo 7 days Rl.
2. Narsa Ram
304 Part-1
r/w 34 IPC
Eight years’
Rl and lo pay fine of Rs.2000/- in default of payment of fine, to further
undergo six months Rl.
452 IPC
One year Rl
and to pay fine of Rs. 100/- in default of payment of fine, to further
undergo 15 days Rl.
323 IPC
Six months
Rl and to pay fine of Rs.500/- in default of payment of fine, to further
undergo 7 days Rl.
The above substantive sentences were ordered to run concurrently.
2. The facts giving rise to this appeal, in short, are as follows:-
On 16.4.2000 at about 9.30 a.m. PW2 Kesaram lodged a written report Ex.P/2 before PW15 Ganpat Singh, S.H.O., Police Station, Raniwara District Jaiore stating that they are four brothers and accused appellant Narsa is the eldest one and accused appellant Uka is the youngest one and both live in one Bhera together and he and his younger brother Punma (hereinafter referred to as the deceased) live in another bhera separately alongwith their family and their mother PW9 Bhuri used to live with deceased. It was further stated in the report that when they were separated, accused appellant Narsa used to demand Rs. 10,000/- from the deceased and because of that amount, there was a dispute between them and before this incident, two months earlier an incident took place between them and that was compromised. It was further
stated in the report that on the fateful day at about 4-5 a.m., he heard the cries from the bhera of the deceased and after hearing cries, he and his wife PWI4 Khemi rushed towards the house of deceased and found that outside the house of the deceased, both accused appellants were beating deceased and at that time, accused appellant Uka was armed with Kulhari and accused appellant Narsa was having lathi and his mother PW9 Bhuri and PW6 Sukhi, wife of the deceased were trying to save deceased and in this scuffle, both PW6 Sukh and PW9 Bhuri also received injuries and as a result of beating, deceased fell down on the ground and PW6 Sukhi, wife of the deceased rushed from the place of occurrence and returned back with a Jeep and at that time, both accused appellants did not allow her to take deceased to the hospital and, thereafter, PW6 Sukhi brought Khangara, uncle of PW2 Kesa Ram, PW10 Nethi and PW7 Punjaram and thereafter, deceased was taken to the hospital, Raniwara. It was further stated in the report that deceased received so many injuries including on head and he was beaten by the accused appellants with an intention to murder him.
On this report, police registered the case and chalked out regular FIR Ex.P/30 and started investigation. During investigation, medical examination of deceased was got conducted by PW5 Dr. Mool Singh Rathore and his medical examination report is Ex.P/13 and, thereafter, deceased succumbed to his injuries on 17.4.2000 at about 9.15 a.m. and post mortem of the dead body of the deceased was also got conducted by PW5 Dr.Mool Singh Rathore and the post mortem report is Ex.P/15, where cause of death as opined by Dr.Mool Singh Rathore, PW5 was haemorrhagic shock due to Head injury. PW9 Bhuri was also got medically examined and her injury report is Ex.P/10. PW6 Sukh was also got medically examined and her injury report is Ex.P/11. The accused appellants Ukaram and Narsaram were arrested on 16.4.2000 through arrest memos Ex.P/34 and Ex.P/35 respectively.
After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case has committed to the Court of Session.
On 3.7.2000, the learned Addt. Sessions Judge, Bhinmal framed charges for the offence under Sections 302/34, 352 and 323 IPC against the accused appellant. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as 18 witnesses and got exhibited some documents. Thereafter, statements of the accused appellants under Section 313 Cr.P.C. were recorded. In defence, no evidence was produced by the accused appellants.
After conclusion of trial, the learned Addl. Sessions Judge, Bhinmal through his judgment and order 6.11.2000 convicted and sentenced the accused appellants in the manner as indicated above holding inter alia:-
1. That incident did not take place on the spur of moment.
2. That though one of the accused appellants was having a Kulhari, but he did not use that Kulhari from sharp edged point, but used it from back side.
3. That accused appellants except one injury on head did not cause other injuries on vital part.
4. That from the above findings, the learned Sessions Judge came to the conclusion that at the time of beating deceased, accused appellants had no intention to murder him, but whatever was done by accused appellants, it was done with knowledge that these injuries could be fatal and, therefore, he held that prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under Section 304 Part-I read with 34 IPC and not 302 IPC.
Aggrieved from the said judgment and order dt. 6.11.2000 passed by the learned Addl. Sessions Judge, Bhinmal, this appeal has been filed by the accused appellants.
3. In this appeal, the learned counsel appearing for the accused appellants has made the following submissions:-
1. That evidence of PW6 Sukhi, who is wife of the deceased, should not have been believed by the learned trial Judge because of the following reasons:-
(i) That there is no corroborative evidence to her statement; and
(ii) That she is highly interested witness being wife of the deceased.
2. That other eye-witnesses have been declared hostile and thus, the accused appellants should have been acquitted by the learned trial Judge.
3. That even from the findings recorded by the learned trial Judge, no case for the offence under Section 304 Part-I IPC is made out and the accused appellants should have been convicted for the offence under Section 304 Part-II IPC and the learned trial Judge has wrongly convicted them under Section 304 Part-I IPC when he has come to the conclusion that there was no intention to murder deceased.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Bhinmal.
5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor had perused the record of the case.
6. Before proceedings further, relationship of some of the prosecution witnesses with accused appellants and deceased should be mentioned here.
(1) PW2 Kesaram, who lodged the report Ex.P/2, is the real brother of both accused appellants and deceased.
(2) PW6 Sukhi is the wife of the deceased.
(3) PW9 Bhuri is the mother of both accused appellants as well as the deceased and PW2 Kesaram, who lodged the report Ex.P/2.
7. Before proceedings further, first medical evidence of this case has to be seen. Injury report of PW9 Bhuri.
8. The injury report of PW9 Bhuri is Ex.P/10, which shows that she received the following one simple injury by blunt object:-
“(1) Contusion with red colour 3cm x 3cm on dorsal surface of base of thumb of right hand.”
The injury report Ex.P/10 of Pw9 Bhuri has been proved by PW Dr.Mool Singh. Injury report of PW6 Sukhi
9. The injury report of PW6 Sukhi, who is wife of the deceased, is Ex.P/11, which shows that she received the following two injuries:-
“(1) Abrasion with red colour 3cm x 3cm on left side of abdomen, 1cm above left iliac crest. Simple by blunt object.
(2) Contusion with red colour 0.5cm x 0.5cm on dorsal surface of distal phalanx of little finger of right hand. By blunt object.”
The injury report Ex.P/11 of PW6 Sukhi has also been proved by PW5 Dr.Mool
Singh.
Injury report of deceased
10. The injury report of deceased is Ex.P/13 and to proved the same, PW5 Dr. Moot Singh has been produced. He states that on 16.4.2000 at about 10.20 a.m. he examined deceased and found five injuries by blunt object on his person. He has proved the injury report Ex.P/13.
Post mortem report of deceased
11. From the statement of PW5 Dr. Mool Singh, it appears that deceased died on 17.4.2000 and he conducted the post mortem of the dead body of the deceased between 9.15 a.m. to 10.15 a.m. and found the following injuries on the body of the deceased:-
1. Lacerated wound 5cm x 0.5cms bone deep on right side of forehead, 5cm above right supra orbital region. Edges of wound irregular and swollen. Blood and blood cots present in and around the wound.
2. Lacerated wound 7cm x 0.5 cm Bone deep present on right parietal region of Head. Edges of wound irregular and swollen. Blood and blood clots present under the scalp. There is fissured fracture of middle part of right parietal bone, left parietal bond and left temporal bone, this linear fracture is extending from 8cm above right ear to 2cm above left ear. Edges of fractures bones irregular. There is lacerated wound 1cm x 0.5cm x 0.5cm on right parietal region of brain. Membranes over me wound lacerated, Blood and blood clots present in and around the wound. Cranial cavity contain blood. This injury is sufficient in the ordinary course of nature to cause death.
3. Lacerated wound 1cm x 0.5cm x 0.5cm on lateral surface of right elbows joint. Edges of wound irregular and swollen. Dry clots present in and around the wound.
4. Contusion with Reddish blue colour 5cm x 5cm on posterior surface of lower parts of left forearm.
5. Abrasion with red scaf 5cm x 2cm on lateral surface of upper part of left forearm.
He has opined that cause of death of the deceased was haemorrhagic shock due to Head injury. He has proved the post mortem report Ex.P/14.
12. Thus, from the statement of PW5 Dr.Mool Singh, it is well proved that death of the deceased was homicidal one.
13. The next question that arises for consideration is who has caused injuries on the body of the deceased and for that evidence has to be looked into.
l4. PW2 Kesaram, who lodged the report Ex.P/2, is brother of the deceased and also brother of the accused appellants. He has been declared hostile and it is but natural that he would not give evidence against his brothers.
15. Similarly, PW9 Bhuri, who is mother of the accused appellants and also mother of the deceased, has been declared hostile and it is but natural that she would also not give evidence against her sons. It may be stated here that it cannot be expected from a lady that when her one son has died and other two sons are accused. She would narrate against her surviving sons.
16. Thus, in the present case, there remains the solitary eye witness PW6 Sukhi, who is wife of the deceased.
17. It has been argued by the learned counsel for the accused appellants that PW6 Sukhi is highly interested witness being wife of the deceased and, therefore, her statement should not be believed. Apart from this, her statement is not corroborated by other evidence and other eye witnesses have been declared hostile and thus, conviction cannot take place on her solitary statement.
18. Before appreciating the above contentions, position of law in respect of evidence of interested witness, related witness and solitary witness has to be discussed here.
19. A close relative, who is a very natural witness in the circumstances of the case, cannot be regarded as an “interested witness”, as held by the Hon’ble Supreme Court in Dalbir Kaur v. State of Punjab (1).
20. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the Court. For that the decision of the Hon’ble Supreme Court in State of Gujral v. Naginbhai Dhulabhai Patel (2) may be seen.
21. It is well settled that evidence of interesled witnesses cannot be discarded on the sole ground of interestedness, but their evidence should be subjected to a close scrutiny. Interested witnesses are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. Simply because an eye witness happens to be the wife of the deceased, her evidence cannot be discarded if her testimony is otherwise acceptable.
22. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be “interested”. For that the decision of the Hon’ble Supreme Court in State of Rajasthan v. Smt. Kalki (3) may be seen.
23. Relationship by itself is not a ground to discredit testimony of witness, if it is otherwise found to be consistent and true, as held by the Hon’ble Supreme Court in Sarwan Singh v. State of Punjab (4).
Quality not quantity of evidence material
24. Section 134 of the Indian Evidence act enshrines the well recognised maxim that “Evidence has to be weighed not counted”. The matter thus depends upon the circumstances of each case and the quality of evidence even of a single witness whose testimony has either to be accepted or rejected. If such a 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 on an accused person may be proved by the testimony of a single witness, the innocence of the accused may be established by 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. In this respect, the decision of the Hon’ble Supreme Court in Vadivalu Thevar v. State of Madras (5), Maqsoodan v. State of U.P. (6), Kartik Mathar v. State of Bihar (7), Praveen v. State of Haryana (8) and Balo Yadav v. State of Bihar (9) may be referred lo.
25. In State of UP v. Hakim Singh (10), it has been held by the Hon’ble Supreme Court that law does not require a plurality to witnesses. Conviction can be based on the testimony of a single witness, provided the evidence of the witness is trustworthy. No particular number of witnesses is required to prove a fact.
26. The Hon’ble Supreme court in Jagdish Prasad v. State of M.P. (11) has held that testimony of a solitary witness can be acted upon, if entirely reliable and corroboration is required only in case of doubt or suspicion.
27. It is settled law that corroboration is not rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness to the victim, his predisposition towards the accused, are some of the circumstances to be kept in view to weight and accept the ocular evidence of a witness. It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance. For that the decision of the Hon’ble Supreme Court in Mikiyath Singh v. State of Punjab (12) may be referred to.
28. Thus, it can be concluded that:-
(1) As a general rule, a Court can and may act on the testimony if a single witness, though uncorroborated. One credible witness out-
weight the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example, in the case of a child witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of single witness is or is not necessary, must depend upon facts and circumstances, of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
29. Keeping the above principles in mind, the solitary statement of PW6 Sukhi is being critically examined.
30. So far as the presence of PW6 Sukhi on the place of occurrence is concerned, since she is an injured witness, therefore, her presence on the place of occurrence should not be doubted and from this point of view, she is a natural eye witness, being wife of deceased.
31. The name of PW6 Sukhi is found in the report Ex.P/2, which was lodged by PW2 Kesaram.
32. PW6 Sukhi has clearly stated in her statement that accused appellant Narsa was having lathi and other accused appellant Uka was armed with Kulhari and both accused appellants were causing injuries on the head of her husband deceased, but accused appellant Uka inflicted Kulhari blow from its back side. She has further stated that as a result of beating, deceased fell on the ground and when she tried to intervene, she was also beaten. She has further stated that she brought the Jeep of PW 13 Hussain and both accused appellants did not allow her to take deceased to the hospital and, thereafter, she brought Khangara, PW 7 Punjaram and PW-10 Nethi. She has been cross-examined at length, but nothing has come out which affects her testimony. The statement of PW6 Sukhi that accused appellants caused injuries on the head of deceased gets corroboration from the medical evidence since as per statement of Dr.Mool Singh, PW5 and injury report Ex.P/13 and post mortem report Ex.P/14 of deceased, deceased received injuries on head.
33. From the statement of PW6 Sukhi, it cannot be inferred or presumed that she is telling lie or falsely implicating the accused appellants. Her statement appears to be straight forward and does not suffer from material infirmity. Her statement is fully supported by medical evidence and furthermore, PW7 Punjaram, PW10 Nethi and PW13 Hussain also corroborate her statement that soon after the occurrence when they were called by PW6 Sukhi, she narrated the whole incident to them.
34. Thus, it is concluded that statement of PW6 Sukhi is reliable and trustworthy and reliance can be placed on her testimony. In these circumstances, if the learned trial Judge has placed reliance on the statement of PW6 Sukhi, he has committed no illegality in doing so. From her statement, it is well proved that the injuries, which were received by deceased, were caused by the accused appellants and the findings of the learned trial Judge in this respect are liable to be confirmed.
35. For the reasons stated above, the arguments of the learned counsel for the accused appellants that PW6 Sukhi is highly interested witness being wife of the deceased and, therefore, her evidence should not have been believed, as there is no corroboration to her statement and apart from this, no conviction can taken place on her solitary statement, stand rejected.
36. The next question that arise for consideration is what offence has been committed by the accused appellants.
37. The learned Addl. Sessions Judge has come to the conclusion that since injuries were caused from back side of the Kulhari, therefore, there was no intention on the part of accused appellants to murder deceased and whatever was done by accused appellants, it was done with the knowledge that these injuries might result in death of the deceased. The learned Addl. Sessions Judge though found knowledge on the part of the accused appellants, but conviction them for the offence under Section 304 Part-I read with 34 IPC.
38. In Mohinder Pal Jolly v. State of Punjab (13), the Hon’ble Supreme Court has made a distinction very well between a case falling under Section 304 Part I or 304 Part II in the following manner:-
“A question now arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause ‘4thly’, then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I”.
39. When the element of intention is missing and there is knowledge, in such case, the injuries inflicted would be covered under Part II of Section 304 IPC. So, where the accused had knowledge, but no intention that such blow was likely to result in death, it would be held that the offence committed would be culpable homicide not amounting to murder punishable under Part II of Section 304 IPC.
40. It may be clarified here that before making conviction under Section 304 Part I IPC, act of the accused has to be covered in any one of the exceptions made in Section 300 IPC. In the present case, the learned Addl. Sessions Judge has not found any exception proved and furthermore he has clearly stated that incident did not take place on the spur of moment, therefore, Exception (4) of Section 300 IPC was also not attracted.
41. When the findings of the learned Addl. Sessions Judge show that element of intention was missing and knowledge was there, in these circumstances, accused appellants should have been convicted under Section 304 Part-II IPC instead of 304 Part-I IPC and thus, the findings of the learned Addl. Sessions Judge convicting the accused appellants under Section 304 Part-I IPC cannot be sustained and they are liable to be altered to the extent that accused appellants are liable to be convicted under Section 304 Part-II instead of 304 Part-I.
42. For the reasons stated above, the accused appellants are liable to be convicted under Section 304 Part II read with 34 IPC instead of 304 Part I read with 34 IPC as held by the learned Addl. Sessions Judge. Thus, accused appellants have committed offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC.
43. On sentence point, it can be said that for the offence under Section 304 Part II read with 34 IPC, if each of the accused appellant is sentenced to six years Rigorous Imprisonment in place of eight years RI and to pay a fine of Rs. 2000/-, in default of payment of fine to further undergo three months RI, it would meet the ends of justice.
44. Since the accused appellants are going to be convicted and sentenced for the major offence under Section 304 Part-II read with 34 IPC, there is not need to convict and sentence them separately for minor offences like 452, 323 and 323/34 IPC.
In the result, the appeal filed by the accused appellants narsa Ram and Uka Ram is partly allowed in the manner that they are convicted for the offence under Section 304 Part II read with 34 IPC instead of 304 Part I read with 34 IPC and for the offence under
tion 304 Part II read with 34 IPC, each of the accused appellant is sentenced to undergo six years Rigorous Imprisonment and to pay fine of Rs. 2000/-, in default of payment of fine, to further undergo three months RI. The judgment and order dated 6.11.2000 passed by the learned Addl.
Sessions Judge, Bhinmal stand modified accordingly.