JUDGMENT
Sunil Kumar Garg, J.
1. This appeal has been filed by the accused-appellant against the judgment and order dated 30-10-1987 passed by the learned Sessions Judge, Dungarpur in Sessions Case No. 41/87 by which he convicted the accused-appellant for the offence under Section 304. Part-II in place of Section 302, IPC and Section 323. IPC and sentenced him in the following manner :–
———————————————————
Name of Convicted Sentence
accused u/S. awarded
appellant
---------------------------------------------------------
Shankar 304 Part-11, To undergo 41/2 years
IPC RI and to pay a fine
of Rs. 500/-, in default
of payment of fine, to
further undergo 5 months'
RI 323, IPC To undergo one month RI
Both the sentences were ordered to run concurrently,
2. It arises in the following circumstances:--
On 29-5-1987, PW-1 Mansaram lodged an oral report in the Police Station, Sadar, Dungarpur before PW-9 Jeetmal, SHO of that Police Station stating inter alia that his elder brother Shankar (accused-appellant) was living separately along with his wife and since the accused-appellant was not doing any job, his parents were not happy with him and his parents used to ask the accused- appellant to do some job and because of that, he was also angry with them and the accused-appellant used to tell that if his parents (PW8 Velaram, father of the accused-appellant and Varju Devi, mother of the accused-appellant (hereinafter referred to as the deceased)) compel him to do some job, he would kill them. It was further stated in the report by PW-1 Mansaram that on 23-5-1987 the accused-appellant went to the house of his parents and started abusing them and asked them to come out from the house and thereupon, deceased and PW-8 Velaram, father of the accused-appellant, came out from the house and upon this, the accused-appellant started throwing stones on them and one of the stones, which were being thrown by the accused-appellant, struck on the head of the deceased, as a result of which, blood came out profusely and her voice went off and PW-8 Velaram also received injuries. It was further stated in the report by PW-1 Mansaram that PW-2 Deva, PW-5 Kamla, sister of the accused-appellant and other witnesses intervened in the matter and thereafter, deceased was taken to the Dungarpur hospital in a truck where she was got admitted. It was further stated in the report by PW-1 Mansaram that since her mother was not in a position to speak and her head was broken, as a result of throwing stones by the accused-appellant, therefore, he was lodging the report.
On this report, police registered the case initially under Section 307, IPC and chalked out regular FIR Ex. P/1 and started investigation.
Before the report was lodged by PW-1 Mansaram. deceased was got medically examined by PW-7 Dr. Balmukund and her injury report is Ex. P/9 and her X-ray report is Ex. P/10, which shows two fractures on her head. The injury report of PW-8 Velaram is Ex. P/11.
It may be stated here that deceased died in the hospital on 31-5-1987 and thereafter, post-mortem of the dead body of the deceased was got conducted by PW-7 Dr. Balmukund and the post-mortem report is Ex. P/12, where it was opined that the cause of her death was increased intracranial tension as a result of head injury.
After usual investigation, police submitted challan for the offence under Section 302, IPC against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session.
On 10-7-1987, the learned Sessions Judge, Dungarpur framed charges for the offence under Sections 302 and 323, IPC against the accused-appellant. The charges were read over and explained to the accused-appellant, who pleaded not guilty and claimed trial.
During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited some documents. Thereafter, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. In defence, one witness was produced by the accused-appellant.
After conclusion of trial, the learned Sessions Judge, Dungarpur through his judgment and order dated 30-10-1987 convicted the accused-appellant for the offence under Section 304, Part II, IPC in place of 302, IPC and 323, IPC and sentenced him in the manner as indicated above holding inter alia :–
1. That the accused-appellant caused injuries to PW-8 Velaram voluntarily.
2. That the deceased was first medically examined on 23-5-1987 and on 26-5-1987, she received paralytical attack and not prior to that and, therefore, the plea of the defence that she received injuries on head because of earlier paralytic attack was rejected by the learned trial Judge.
3. That the death of the deceased was homicidal one.
4. That since other witnesses especially all relatives were declared hostile, therefore, the learned trial Judge placed reliance on the solitary statement of PW-8 Velaram, who is father of the accused-appellant and husband of the deceased.
5. That since the injuries on the head of the deceased were caused by the accused-appellant by throwing stones, therefore, there was no intention on the part of the accused-appellant to cause murder of the deceased, but he was having knowledge and, therefore, he convicted the accused-appellant for the offence under Section 304, Part-II in place of 302, IPC.
Aggrieved from the said judgment and order dated 30-10-1987 passed by the learned Sessions Judge, Dungarpur, this appeal has been filed by the accused-appellant.
3. In this appeal, the learned counsel appearing for the accused-appellant has made the following submissions :–
(i) That since in this case all the witnesses have been declared hostile and PW-8 Velaram being husband of the deceased and interested witness and there is no corroboration to his statement, therefore, conviction cannot take place on his sole testimony.
(ii) That the deceased received injuries as a result of her head strucking against the wall and furthermore, her death was caused because of paralytical attack.
(iii) That the alleged incident took place on 23-5-1987 and the report was lodged on 29-5-1987 and, therefore, there is a delay in lodging the report. Therefore, from this point of view also, the prosecution case comes under the shadow of doubt.
(iv) That since the accused-appellant is the son of the deceased, therefore, lenient view in awarding sentence to the accused-appellant should be taken.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Dungarpur.
5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.
6-7. Before proceeding further, first medical evidence of this case has to be seen.
8. In the report Ex. P/1, which was lodged by PW-1 Mansaram, there is a specific mention of the fact that the alleged incident took place on 23-5-1987. PW-7 Dr. Balmukund has stated in his statement recorded in Court that on 23-5-1987 he was Medical Officer in the General Hospital, Dungarpur and on that day, he medically examined deceased and found the following two injuries on her person :–
(i) Lacerated wound on outer side Lt. eyebrow 11/4″ x 2″ x bone deep fresh bleeding with swelling and soft clot.
(ii) Lacerated wound on Lt. zygometicarch front part 11/2″ x 1/2 x bone deep fresh bleeding soft clot and swelling.
He has further stated that the above two injuries were caused by blunt object and he advised for X-ray and after seeing the X-ray plates which show fracture of Lt. orbittal margin i.e. chip fracture and fracture of lower to frontal bone, front part of It. temporal bone, he opined that both the injuries were grievous in nature and dangerous for life. He has proved the injury report Ex.P 9.
He has further stated that on the same day i.e. on 23-5-1987 he also medically examined PW-8 Velaram and found the following injuries on his person :–
(i) Longitudinally placed lacerated wound on Lt. parietal eminence 11/2″ x 1/4″ x partial skin deep fresh bleeding soft clot.
(ii) Small lacerated wound on Rt. side forehead 1/2″ x 1/10″ x partial skin deep soft clot.
(iii) Red Bruise with swelling Rt. temporal parietal region 2″ x 2″.
(iv) Small lacerated wound dorsum Lt. wrist 1/2″ x 1/4″.
He has further stated that the above injuries were simple in nature and the same were caused by blunt object. He has proved the injury report Ext. P/11.
He has further stated that the deceased died on 31-5-1987 and on that day, he conducted the post-mortem of the dead body of the deceased and in the post-mortem report, he has not mentioned the injuries of the deceased separately as he has stated that the injuries which were found in her injury report Ex. P/9 were also found at the time of conducting post-mortem. He has opined that the cause of death of deceased was increased intracranial tension as a result of head injury. He has further stated that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death. He has proved the post-mortem report Ex. P/12.
9. Before proceeding further, it may be stated here that the learned counsel for the accused appellant has submitted that PW-7 Dr. Balmukund has admitted that when he examined deceased on 26-5-1987, there was paralytic attack on the right side of her body and, therefore, deceased died because of paralytic attack and her death could not be said to be homicidal one.
10. I have given my thoughtful consideration to this aspect.
11. PW-7 Dr. Balmukund, in his statement recorded in Court has made this point
very much clear that the cause of paralysis
was head injury and deceased suffered paralysis attack after receiving the head in
jury. When this being the position, the case
of the defence that deceased died because
of paralytic attack and not of head injury
cannot be accepted and this aspect was also
considered by the learned trial Judge, who
rejected this plea.
12. Therefore, it is made clear that the death of the deceased was homicidal one as she first received head injuries as a result of throwing stone on her head and the findings of the learned trial Judge in this respect are liable to be confirmed.
13. The next question for consideration is whether the injuries on the head of the deceased were caused by the accused-appellant or not.
14. No doubt in this case PW-1 Mansaram, who lodged the report Ex. P/1 is the brother of the accused-appellant and PW-5 Kamla is the sister of the accused-appellant and the deceased was mother of the accused appellant and, therefore, there is a possibility that the witnesses would have not come forward to give true version and that is why, they have been declared hostile.
But, PW-8 Velaram, who is husband of the deceased and the father of the accused-appellant, has supported the case of the prosecution from the very beginning and he has clearly stated in his statement recorded in Court that the accused-appellant came to his house on the relevant date and first he tried to beat him by danda and when he snatched that danda, then the accused-appellant threw stone which struck on the head of his wife-deceased, as a result of which, her head was broken. He has also stated that he was also beaten by the accused-appellant. This witness was cross-examined, but nothing has come out from his cross-examination, which affects his testimony on the point that the injuries on the head of the deceased were caused by the accused-appellant.
15. On the basis of sole testimony of PW-8 Velaram, the learned trial Judge came to the conclusion that the injuries on the head of the deceased were caused by the accused-appellant by throwing stones. However, he came to the conclusion that there was no intention on the part of the accused-appellant to cause murder of the deceased, but he was having knowledge and, therefore, the learned trial Judge convicted the accused-appellant for the offence under Section 304, Part II, IPC in place of 302, IPC.
16. In this respect, it has been submitted by the learned counsel for the accused-appellant that PW-8 Velaram is a highly interested witness being husband of the deceased and, therefore, his statement should not be believed by the learned trial Judge, especially when his statement is not corroborated by other eye-witnesses and thus, conviction cannot take place on his solitary statement.
17. To appreciate the above contentions, position of law in respect of evidence of interested witness, related witness and solitary witness has to be discussed here.
18. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an “interested witness”, as held by the Hon’ble Supreme Court in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472 : 1977 Cri LJ 273.
19. The mere fact that the witnesses were relatives 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 Gujarat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839 : 1983 Cri LJ 1112, may be seen.
20. It is well settled that evidence of interested 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.
21. “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, AIR 1981 SC 1390 : 1981 Cri LJ 1012, may be seen.
22. 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, AIR 1976 SC 2304 : 1976 Cri LJ 1757.
Quality not quantity of evidence material.
23. 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 of 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 decisions of the Hon’ble Supreme Court in Vadivalu Thevar v. State of Madras, AIR 1957 SC 614 : 1957 Cri LJ 1000; Maqsoodan v. State of U.P., AIR 1983 SC 126 : 1983 Cri LJ 218; Kartik Malhar y, State of Bihar, (1996) 1 SCC 614 : 1996 Cri LJ 889; Praveen v. State of Haryana, (1996) 11 SCC 365 : 1997 Cri LJ 252 and Balo Yadav v. State of Bihar, AIR 1997 SC 2678 : 1997 Cri LJ 3395, may be referred to.
24. In State of U.P. v. Hakim Singh, AIR 1980 SC 184, it has been held by the Hon’ble Supreme Court that law does not require a plurality of 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.
25. The Hon’ble Supreme Court in Jagdish Prasad v. State of M.P., 1995 SCC (Cri) 160 : 1994 Cri LJ 1106, 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.
26. 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 pre-disposition towards the accused, are some of the circumstances to be kept in view to weigh 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 Milkiyath Singh v. State of Punjab, (1991) 2 Crimes 191, may be referred to.
27. 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 outweight 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.
28. Keeping the above principles in mind, the solitary statement of PW-8 Velaram is being critically examined.
29. So far as the presence of PW-8 Velaram on the place of occurrence is concerned, since he is an injured witness, therefore, his presence on the place of occurrence should not be doubted and from this point of view, he is a natural eye-witness, being husband of deceased.
30. The name of PW-8 Velaram is found in the report Ex. P/1, which was lodged by PW-1 Mansaram.
31. As already stated above, PW-8 Velaram in his statement recorded in Court has clearly stated that the accused-appellant came to his house on the relevant date and first he tried to beat him by danda and when he snatched that danda, then the accused-appellant threw stone, which struck on the head of his wife-deceased, as a result of which, her head was broken. He has also stated that he was also beaten by the accused-appellant. He was cross-examined, but nothing has come out from his cross-examination, which affects his testimony on the point that the injuries on the head of the deceased were caused by the accused-appellant.
32. From the statement of PW–.8 Velaram, it cannot be inferred or presumed that he is telling lie or falsely implicating the accused-appellant. His statement appears to be straightforward and does not suffer from material infirmity. His statement is fully corroborated by medical evidence.
33. Thus, it is concluded that statement of PW-8 Velaram is reliable and trustworthy and reliance can be placed on his testimony. In these circumstances, if the learned trial Judge has placed reliance on the statement of PW-8 Velaram, he has committed no illegality in doing so. From his statement, it is well proved that the injuries, which were received by deceased on her head, were caused by the accused-appellant and the findings of the learned trial Judge in this respect arguable to be confirmed.
34. Hence, the argument of the learned counsel for the accused-appellant that PW-8 Velaram is highly interested witness being husband of the deceased and, therefore, his evidence should not have been believed by the learned trial Judge stands rejected.
35. So far as the argument with regard to delay in lodging the report is concerned, no doubt there was delay in lodging the report, but that delay does not appear to be fatal for the prosecution because of the following reasons :–
(i) That the alleged incident took place on 23-5-1987 is well established as on that day PW-8 Velaram and the deceased were taken to the hospital and both were got medically examined and this fact can be verified from the medical examination reports Ex. P/9 and Ex. P/11 of deceased and PW-8 Velaram respectively. Therefore, the fact that the alleged incident took place on 23-5-1987 cannot be doubted in any manner.
(ii) That since in this case there was a dispute between the relatives of one family as deceased was mother of the accused-appellant, therefore, in such a situation, if any delay has been caused in lodging the report, that cannot be said to be fatal. The delay in the present case could be due to anxiety in saving life of victim and if there was a situation like that, the delay cannot be said to be an undue delay and for that the decision of the Hon’ble Supreme Court in Nagappa Fakirappa Goudar v. State of Karnataka, AIR 1994 SC 953 : 1994 Cri LJ 1200, may be referred to.”
Hence, the argument with regard to delay in lodging the report stands rejected.
36. So far as the argument that since the accused-appellant is the son of the de-ceased therefore, lenient view in awarding sentence be taken is concerned, in my considered opinion, the learned trial Judge has already taken a lenient view by awarding sentence of 41/2 years’ RI to the accused-appellant for the offence under Section 304, Part II, IPC. Therefore, no further leniency is required in the matter of awarding sentence.
37. The Hon’ble Supreme Court in State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13 : 2003 Cri LJ 4339 has observed that lesser sentence should not be imposed merely on the ground of long pendency of matter. In that case, it was further observed by the Hon’ble Supreme Court that two years’ custodial sentence for the offence under Section 304, Part-I, IPC was not proper. Therefore, from this point of view also, sentence of 41/2 years awarded to the accused-appellant by the learned trial Judge cannot be said to be severe or excessive.
38. For the reasons stated above, no interference is called for with the findings of conviction recorded by the learned trial Judge against the accused-appellant for the offence under Section 304, Part II, IPC, as they are based on correct and proper appreciation of evidence on record. I see no illegality, infirmity or perversity in the findings of conviction recorded by the learned trial Judge. Hence, this appeal is liable to be dismissed.
39. It may be stated here that while appreciating the findings of the trial Court, rule of practice which has almost the force of law is that the appellate Court should not reverse a finding of fact rested on a proper appreciation of oral evidence. Thus, opinion of trial Judge on appreciation of evidence should not be disturbed except for exceptional reasons. In this case, I see no exceptional reasons.
Accordingly, this appeal filed by the accused-appellant-Shankar is dismissed, after confirming the judgment and order dated 30-10-1987 passed by the learned Sessions Judge, Dungarpur.
Since the accused-appellant is on bail, therefore, he shall surrender before the learned trial Court for serving out the remaining period of sentence.
