1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRIMINAL APPEAL No. 529 of 2003 PAPPU V/S STATE Mr. SHAITAN SINGH, for the appellant Mr. A.R. NIKUB, PP, for the respondent Date of Order : 1.4.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI CM TOTLA,J. JUDGMENT BY THE COURT (PER HON'BLE A.M. KAPADIA),J. 1. This criminal appeal under Sec. 374 of the Code of Criminal Procedure ('the Code' for short), is directed against the judgment and order dated 02.04.2003 rendered in Sessions Case No.76 of 2002 by the learned Addl. Sessions Judge (Fast Track) Pratapgarh, whereby he convicted and sentenced appellant/accused Pappu s/o Chhogalal (hereinafter referred to as “A-1”), as under: 2 U/s. 302 IPC Imprisonment for life and a fine of Rs.5,000, in default of payment of fine to further undergo six months' simple imprisonment. U/s. 452 IPC Two years' rigorous imprisonment and a fine of Rs.2,000, in default of payment of fine to further undergo three months' simple imprisonment. U/s. 324/34 IPC One year rigorous imprisonment and a fine of Rs.1,000, in default of payment of fine to further undergo two months' simple imprisonment. U/s. 323/34 IPC Six months' imprisonment and a fine of Rs.500, in default of payment of fine to further undergo one month's simple imprisonment. All the sentences were ordered to run concurrently. 2. The prosecution case, as disclosed from the F.I.R. and unfolded during trial, is as under: 2.1 On 10.08.2002, in the morning at about 4 O' clock, complainant Smt. Haga Kalbelia, resident of Salamgarh Hat, lodged a verbal report at Police Station Pratapgarh, alleging inter-alia that for last about 10 years she was living with Sorab Mansuri s/o Abdul Rehman as his wife and two children were born to them. One year prior to the incident, she left Sorab Mansuri and started living with Pappu s/o Chhoga Kalbelia but since he used to beat her, she left Pappu and again started living with Sorab Mansuri, in the rented house of Neka s/o Bajja Nath Kalbelia. On the day of incident, when she, her husband Sorab Mansuri and Imran, the nephew of 3 Sorab Mansuri, were sleeping in house and the doors of house were kept open on account of summer, A-1 alongwith his brother Narunath entered in the house. A-1 was having a knife and Narunath A-2 was having a sword and both were saying that they would finish them. When her husband tried to get up, A-1 inflicted a knife blow on the chest of Sorab and when Pappu tried to inflict second blow, her husband Sorab raised his hand and therefore he received knife injury on his left hand. When she tried to intervene, Narunath also tried to chop her nose and as a result of which she also received injury on her nose. When she alongwith her husband tried to save their lives, her husband fell down in front of the house. On hearing cries, Sabeer, Jakir and Premnath came there but because of darkness accused could not be caught. Thereafter, her husband was taken to hospital where he was declared dead. 2.2 On the aforesaid information, a case under Sections 452, 302, 307, 323 and 324/34 IPC was registered. During the course of investigation, inquest was held on the dead body of deceased Sorab and thereafter the dead body was sent for autopsy. Panchnama of the scene of occurrence was prepared and statements of the witnesses were record. 4 2.3 At the end of investigation. as sufficient incriminating evidence was found against both the accused. chargesheet was filed against them in the Court of ACJM, Pratapgarh. Since accused Narunath (A-2) absconded, he was shown as absconder in the chargesheet. As the offence punishable under Sec. 302 IPC is exclusively triable by the Court of Sessions, the learned ACJM, Pratapgarh committed the case to the Sessions Court. The learned Addl. Sessions Judge, (Fast Track) Pratapgarh ('trial Court, for short), to whom the case was made over for trial, framed charge against A-1 for commission of offence as per the chargesheet. The charges were read over and explained to him. A-1 pleaded not guilty, and claimed to be tried, therefore, he was put to trial by the trial Court in Sessions Case No. 76/02. 2.4 To prove the culpability of the accused, prosecution examined as many as 17 witnesses and also produced documents Ex.P/1 to Ex.P/25. 2.5 After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the 5 circumstances appearing against him and recorded his further statement under Sec.313 of the Code. In his further statement, accused A-1 denied the case of the prosecution in its entirety and stated that false case has been filed against him, however, he neither produced any evidence nor did he examine any witness in support of his defence. 2.6 On appreciation, evaluation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that the prosecution has successfully established the complicity of the accused for committing murder. It was also held that out of the two injuries received by the deceased, one injury was fatal. Trial Court further held that it is a case of pre-planned murder. 2.7 On the aforesaid finding, the trial Court held that offence against accused under Sec.302 IPC is proved. Consequently, the trial Court convicted A-1 for the said offences and sentenced him to undergone imprisonment as mentioned in foregoing paragraph of this judgment, which has given rise to the present appeal at the instance of A-1. 6 3. Learned counsel for accused A-1 Mr. Shaitan Singh submitted that there is no evidence to connect the accused with the crime except the evidence of PW16 Haga and PW12 Imran, who at the relevant time were residing with the deceased, therefore, no reliance can be placed on her testimony and it is unsafe to rely on her oral testimony. It is also submitted by him that the remaining witnesses have turned hostile, therefore, prosecution could not prove the case against A-1. On the aforesaid premises, learned counsel for the appellant submits that there is no evidence against the accused, however, the trial Court has not appreciated the evidence adduced by the prosecution in correct perspective and conviction and sentenced recorded against the accused is against the evidence on record, therefore, the impugned order of conviction and sentence suffers from non-appreciation of evidence and it deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which he is charged. Alternatively, it is also submitted by him that if this Court accept the evidence of the prosecution witnesses in toto, in that case also it is not a case of murder punishable under Sec.302 IPC but a case of culpable homicide not amounting to murder punishable under Sec.304 Part II IPC as the accused has inflicted only a single fatal blow 7 on the lungs of the deceased and that too after seeing Haga there, to whom he claims to be his wife and who was staying with the deceased. He, therefore, urged to pass appropriate order in this regard. 4. Per contra, learned Public Prosecutor Mr. A.R. Nikub, has supported the judgment and order of conviction and sentence throughout. According to him, no illegality has been committed by the trial Court in recording the conviction and order of sentence against the accused. 5. This Court has considered the submissions advanced by learned counsel appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned counsel for the parties with reference to broad and reasonable probabilities of the case. This Court has examined the entire evidence on record for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 8 6. There is no dispute that Sorab died homicidal death. To prove this fact, the prosecution relied upon the oral testimony of PW4 Dr. Vimal Kumar Gandhi, who performed the postmortem of the deceased. The postmortem report is on record as Ex.P/7. On conjoint reading of the oral testimony of PW4 Dr. Vimal Kumar Gandhi and the Postmortem report Ex.P.7, it is seen that deceased received following two injuries: 1. Incised wound – ¾” x ¼” x Lung issue on upper sternal area of chest obliquely below Sterno clavicular joint. 2. Incised wound – 1 ½” x ¾” muscle artery, vein deep obliquely over left forearm, medial side, Ant to post aspect at lower end of middle 1/3rd part. It is also stated in the report that both the injuries are ante- mortem and caused by sharp weapon. The cause of death was due to hemorrhagic shock because of injury to right lung. The injury caused to the deceased on the right lung was fatal, therefore, it has to be held that the deceased died a homicidal death. 7. Now the next question which calls for consideration is whether A-1 was the author of the injuries. In this connection, prosecution relied upon oral testimony of number of eye witnesses, however, out of those 9 witnesses only two witnesses have supported the prosecution case. 8. First, we will refer the evidence of PW16 Haga, who has lodged the FIR also. She has inter-alia testified before the Court that it was about five months back when she was sleeping in the house. Her husband, two children and nephew of her husband were there. It was about 3 O' Clock in the night when Pappu and Naru came to her house. Naru was having a sword in his hand and Pappu was having a Knife. Soon after coming there, Pappu gave knife blow in the chest of her husband Sorab and the blow of sword was given by Naru on her nose. Knife blow was also given on the hand of her husband. On receiving knife blow, her husband stood up to catch hold of Pappu and Naru but he fell down as soon as he went outside and Pappu and Noru both took to their heels towards Chittorgarh road. On their raising cries, at the place of incident Sagri, Meera and Badri came who took her husband in lap till that time her husband was alive. Thereafter, her husband was taken to hospital by elder brother of her husband and 2-3 other persons, however, he died. She has been cross examined at length by the learned counsel for the defence but nothing has been brought out which would impeach the credibility of her evidence. 10 9. The prosecution has thereafter relied upon the testimony of PW 11 Imran, who was present and who has inter-alia testified in his testimony that on the night of incident he was sleeping at the house of his maternal uncle (Mama) where his uncle Sorab, aunt Haga and two children were also sleeping. Pappu and Naru came in night and fought with his uncle with nife. He further stated that Pappu, who was having knife in his hand gave blow on the his chest of his uncle and on trying to save him by his aunt, Naru who was having sword in his hand gave sword blow on the nose of his aunt. His uncle Sorab received injuries on his chest and hand. During the incident, he shouted loudly so Badri came there and called his another uncle Jakir. He also testified that at the place of incident he had seen Pappu and Naur and that they had fled away after causing injuries. In his cross examination nothing contrary came out. 10.On reappraisal of the evidence of aforesaid two eye witnesses, according to us, there is no contradiction vis a vis their evidence. PW16 Haga has in unequivocal terms stated before the Court as per the statement made by her in the complaint. Her evidence is of sterling quality, which also gets corroboration from the evidence of PW11 Imran. 11 11.It is settled position of law by catena of decision of the Supreme Court that evidence of sole eye witness if it is of sterling quality and unimpeachable, conviction can be recorded on the basis of it. In the instant case, evidence of Haga (PW16) is of sterling quality, unimpeachable, inspiring confidence and being trustworthy, reliance can be placed upon her oral testimony to base conviction of the accused for commission of the offence of murder of Sorab. Her evidence also gets corroboration from the evidence of PW11 Imran. 12.In the case of Ramesh Krishna Madhusudan Nayar Vs. State of Maharashtra, reported in AIR 2008 SC 927, the Hon’ble Supreme Court has held that conviction can be based on the basis of evidence of a solitary witness. Sec.134 of the Indian Evidence Act clearly states that no particular number of witnesses is required to establish a case, conviction can be based on the testimony of single witness if he is wholly reliable. Corroboration may be necessary only when the witness is partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth, on such evidence alone conviction can be maintained. 12 13.On re-appreciation of the evidence of two eye witnesses, we are convinced that there was no reason for both the witnesses to falsely implicate the accused, therefore, according to us, complicity of the accused is duly established. 14.The contention of the learned counsel that it is a case of single blow, therefore, conviction recorded under Sec.302 IPC is required to be altered into under Sec.304 Part II IPC has no substance because the incident has not taken place in hot exchange of words in a spur of moment. A-1 came in the company of respondent accused No.2 with weapon in mid night with a view to take revenge as PW16 Haga left his house and again accompanied the deceased. Therefore, there was intention on the part of A-1, who came with the weapon knife to kill the deceased. Therefore, according to us, it is not a case of culpable homicide not amounting to murder but it is a clearcut case of murder. 15.We find ourselves in complete agreement with the aforesaid finding, ultimate conclusion and the resultant order of conviction and sentence recorded by the trial Court and according to us no other finding or conclusion could have been reached by the trial Court except the one 13 reached by the trial Court on the facts and circumstances of the case with which we agree and according to us, it is required to be confirmed. 16.Seen in the above context, there is no reason to interfere with the impugned judgment and order of conviction and sentence passed by the trial Court and hence the appeal lacks merit and deserves to be dismissed by confirming and maintaining the judgment and order conviction and sentence passed by the trial Court. 17.For the foregoing reasons, the appeal fails and accordingly it is dismissed. Resultantly, the judgment and order of conviction and sentence dated 02.04.2003 rendered in Sessions Case No.76 of 2002 by the learned Addl. Sessions Judge (Fast Track) Pratapgarh is confirmed and maintained. ( CM TOTLA ),J. ( AM KAPADIA ),J. JPA