:3h 1 ""g g (^<w HIGH COURT OF CHHATTISGARH AT BILASPUR ^ D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'bleShri Justice Radhe Shvam Sharma Criminal Appeal No.1090 of 1995 Tati Lakhmu versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERAT1QN -A. Sd/- • Radhe Shyam Sharma Judge Hon'ble Shri Sunil KumarSinha. J.: ^ // Sd/- Sunil Kumar Sinha Judge Postfor ^--00 Sd/- JUDGE 5~ -09-2011 f--' \ r i HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Synil Kumar Sinha and Hon'ble Shri Jystice Radhe^Shyam Sharma Criminal Appeal No.1090 of 1995 Appellant Versus Respondent Tati Lakhmu, son of Gutta, Caste Muriya, aged 28 years, resident of Village Padeda, Vaddepara, P.S. Bijapur, District Bastar (M.P.)(NowChhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri R.K.Jain and Smt. Kiran Jain, counsel for the appellant. Shri Ashish Shukla, Government Advocate for the State/respondent. Criminal Appeal under Section 374(2} of the Code of Criminal Procedure JUDGMENT (Delivered on 6^ September, 2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 12-12- 1994 passed by 1 Additional Session Judge, Jagdalpur in Session Trial No. 16/1993. By the impugned judgment, appellant Tati Lakhmu has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. \ 2. Case ofthe prosecution, in brief, is as under: On the fateful day, i.e., 8-9-1992, at about 5 P.M., complainant Korsa Somlu (PW-1) had gone to his agricultural field along with his father Pandu (deceased). While returning home, they went to the house of the appellant, falling on the way, at about 5:30 P.M. The :7\. deceased asked the appellant there to give him a bottle of liquor. The appellant said that he will give only 'A bottle of liquor on payment of Rs.3.00. The deceased asked the appellant to bring the liquor. The appellant gave ^ bottle of liquor from his house to the deceased. The deceased paid the appellant Rs.2.75 Paisa. The appellant asked for payment of Rs.3.00. The deceased said that he will bring 25 Paisa from his house and pay him tomorrow. On this, the appellant got annoyed, brought an iron Fars/from his house and assaulted the deceased on his left shoulder and back of the neck with sharp portion of the weapon, due to which, blood started oozing out. The deceased died there immediately. The complainant fled from there and went to his house. First Information Report (Ex.P-1) was lodged by him and Merg Intimation (Ex.P-8) was also recorded. The investigating officer reached the place of occurrence, gave notice (Ex.P-2) to Panchas and prepared inquest (Ex.P-3) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Bijapur vide Ex.P-9. Post mortem examination was conducted by Dr. A.R. Gota (PW-6), who gave his report Ex.P-14, in which he found a lacerated wound of 2inchesx1 inchxskin deep on left side of face, an incised wound of 21/2inchesx%cmx1cm over right back and another incised wound of 2%inchesx1cmx11/2cms on right side of the neck of the deceased. The doctor opined that the death was due to syncope resulting from excessive external haemorrhage from right carotid artery and it was homicidal in nature. In further investigation, plain earth, blood stained earth were seized vide Ex.P-4 and a Fars; was also seized vide Ex.P-7. The IP seized ari:icles were sent for chemical examination to Regional Forensic Science Laboratory, Raipur vide Ex.P-12 and a report Ex.P-13 was received. In the FSL report (Ex.P-13), article 'C', i.e., Fars/ was found stained with blood. After completion of the investigation, a charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Jagdalpur, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 1 Additional Session Judge, Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri R.K.Jain and Smt. Kiran Jain, learned counsel for the appellant argued that evidence of Korsa Somlu (PW-1) is not reliable. He is son of the deceased. He is an interested witness. No other independent witness was examined by the prosecution. Therefore, on the basis of solitary evidence of Korsa Somlu (PW-1), conviction of the appellant cannot be based. Learned counsel claimed that the appellant deserves to be acquitted. 4. On the contrary, Shri Ashish Shukla, learned Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge does not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also record of the session case. The conviction of the accused/appellant under Section 302 of 1 V;'S^'?-, 1 ^•.\ the Indian Penal Code is based on solitary testimony of Korsa Somlu (PW-1), who is an eye-witness of the occurrence. 6. It is not disputed that Korsa Somlu (PW-1), being son of deceased Pandu, is a nearest relative of the deceased. It is not a factor to affect the credibility of a witness. Even the relative witness would not conceal the actual culprit and make allegations against innocent person. Foundation has to be laid if plea of false implication is made. So far as ground of solitary evidence is concerned, there is no rule of law that conviction cannot be based on the testimony of sole eye-witness. Unless the Court is of the view that the testimony of such eye-witness is not reliable, conviction can well be based on his solitary evidence. Though generally it is a rule of prudence followed by the Courts that a conviction may not be sustained if it is not supported by two or more witnesses who give a consistent account of the incident, in a fit case the Court may believe a reliable sole eye-witness if in his testimony he makes specific reference to the identity of the individual. The rule of requirement of more than one witness applies only in a case where a witness deposes in general and vague manner, or in the case of a riot. 7. In Kunju alias Balachandran vs. State of Tamil Nadu, (2008) 2 SCC 151, the Hon'ble Supreme Court held as follows: "11. "8. In Vadivelu Thevarv. State of Madras, AIR 1957 SC 614, this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, either wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. 9. Vadivelu Thevar case was referred to with approval in Jagdish Prasad v. State of M.P., 1995 SCC (Cri) 160. This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise." 8. In the present case, Korsa Somlu (PW-1) deposed that when he and his father Pandu (the deceased) were returning from the farm at about 4 P.M., they had gone to the house of the appellant. His father drunk liquor in the house of the appellant and he was standing there in the Badi. The appellant assaulted his father with the Fars; due to less payment of 25 Paisa for the liquor given by the appellant to his father. Due to the assault, his father sustained injuries on the neck and back. The appellant had given two Farsi blows to his father. His father had died there. !n cross-examination, he deposed that he had seen the appellant assaulting his father. His father, saying twice that he was dying, fell down on the earth; at that time & too, he had witnessed the incident. The dispute between the appellant and his father had taken place due to demand of remaining amount of 25 Paisa by the appellant for the liquor given by him to his father. Due to less payment of 25 Paisa for the liquor, the appellant got annoyed and assaulted his father. 9. There is no material in the evidence of Korsa Somlu (PW-1) that he tried to implicate the appellant falsely. Korsa Somlu (PW-1) immediately after the incident rushed to his house and narrated the same to his brother Korsa Suklu (PW-2). 10. Korsa Suklu (PW-2), who is also son of the deceased, deposed that Somlu (Korsa Somlu - PW-1) came to the house and told that the appellant had committed murder of the deceased. The appellant committed murder of the deceased with the Fars/. The testimony of Korsa Somlu (PW-1) is corroborated by Korsa Suklu (PW-2). 11. Korsa Somlu (PW-1) deposed that the appellant assaulted his father and his father sustained injuries on the neck and back. The appellant had given two Fars/ blows to his father. His father died at the place of occurrence. 12. Dr. A.R. Gota (PW-6) deposed that he found a lacerated wound of 2inchesx1inchxskin deep on left side of face, an incised wound of 21Ainchesx1/2cmx1cm over right back and another incised wound of 2%inchesx1 cmx1 %cms on right side of the neck of the deceased. The testimony of Korsa Somlu (PW-1) is duly corroborated by the medical evidence. No material has been placed by the defence on the basis of which the testimony of Korsa Somlu (PW-1) could be held unreliable. 13. S.L.Sen, Sub-lnspector (PW-5) deposed that he had seized a Fars/' from the appellant vide Ex.P-5. Sammaram Ramteke (PW-3) deposed that police had seized one Farsa from the appellant vide Ex.P-5. The police had also seized the amount of Rs.2.75 from the appellant vide Ex. P-6. It is crystal clear that the Farsi was seized from the appellant. The seized Fars; was sent by S.L.Sen, Sub- Inspector (PW-5) to the Forensic Science Laboratory, Raipur through the Superintendent of Police, Dantewada for chemical examination vide Ex.P-12. The FSL report is Ex.P-13, in which, it is mentioned that article 'C', i.e., Farsiwas found stained with blood. 14. We have carefully perused the evidence of Korsa Somlu (PW-1). He categorically deposed that on the fateful day, the appellant had assaulted the deceased with the Fars/ and his evidence is corroborated by the medical evidence and other material available on record. From the medical evidence, we find that death of the deceased was due to syncope resulting from excessive external haemorrhage from right carotid artery and it was homicidal in nature. 15. Learned counsel for the appellant argued that the deceased sustained solitary incised wound on the neck. Rest of the injuries were not on vital parts of the body of deceased. According to the medical evidence, it is clear that the Farsi blow was not forceful. ^ 8 Therefore, the appellant would not be punishable under Section 302 of the Indian Penal Code. Instead, he would be liable for punishment under Section 304 ofthe Indian Penal Code. 16. According to the medical evidence, a lacerated wound of 2inchesx1 inchxskin deep on left side of face, an incised wound of 2%inchesx%cmx1cm over right back and another incised wound of 2%inchesx1cmx1%cms on right side of the neck of the deceased were present. It appears that there was only one injury on the vital part of the body of the deceased. A.R.Gota, Assistant Surgeon (PW-6) deposed in cross-examination that from the size of injury No.3, i.e., incised wound of2% inchesxl cmx1 %cms present on right side of neck of the deceased, it appeared that less force was used for assault. 17. In Virsa Singh vs. State of Punjab, AIR 1958 SC 465, it was held that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution, the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature, or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purelyobjective inference, the injury is sufficient in the ordinary course of nature to cause death. The question whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 18. The incident took place for petty reason of demand of 25 Paisa. In fact, it originated from liquor drinking. If we examine the case on hand on the principles laid down in Virsa Singh's case, it does not appear that the appellant had an intention to cause death or such bodily injury (i.e. injury to the neck and back) to the deceased and that it shall cut the carotid artery, and for the said reason, his act would not be punishable u/s 302 IPC and he would be liable for punishment under Part 1 of Section 304 IPC. 10 19. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. Instead thereof, the appellant is convicted under Section 304 Part 1 IPC and sentenced to undergo rigorous imprisonment for ten years. The appellant was arrested on 13-9-1992 and was released on bail on 28-1-2003. Therefore, he has already undergone for more than ten years. Presently, he is on bail. His bail bonds are cancelled and surety stands discharged. Gopal Sd/- Sunil Kumar Sinha Judge Sd/- Rad^Shyan,Sharn,a Judge -^