1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRIMINAL APPEAL No. 385 of 1984 KHAYHALI RAM NAYAK V/S STATE Mr. JPS CHOUDHARY, for the appellant Mr. K.R. VISHNOI, PP, for the respondent Date of Judgment : 21.4.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. JUDGMENT ------- BY THE COURT (PER HON'BLE A.M. KAPADIA),J. 1.Sole appellant Khayali Ram ('the accused', for short) was charged and tried by Sessions Judge, Sri Ganganagar in Sessions Case No.45 of 1984 for offence under Sec.302 of the Indian Penal Code ('IPC', for short) on the accusation that he being paramour of deceased Asudi Bai was having illicit relation with the deceased, who on the fateful day came to accompany her with him and on refusal by her, he got excited and 2 with the intention to kill her inflicted two fatal blows on her head with Bali (club) and on receiving the said fatal blows, the deceased succumbed instantaneously. 2.At the end of the trial, as the accused was found guilty for committing murder of Asudi Bai, he was convicted vide judgment and order dated 23.10.1984 for commission of offence under Sec.302 and sentenced to imprisonment for life and fine of Rs.150/-. 3.Aggrieved by the judgment and order, the accused has filed instant criminal appeal with the aid of Sec.374 of the Criminal Procedure Code (“the Code”, for short). 4.The brief facts of the prosecution case are as under: 4.1 On 27.04.1984, at 11:15 PM, Labhsingh s/o Ishar Singh, by caste Labana Sikh, resident of Koni, came to Police Station Hindumalkot and informed to the Police Station Officer that Khayali Ram s/o Ramkaran, resident of Koni, was having illicit relation with his wife Asudi Bai for last 2-3 years and about 4-5 months ago Asudi Bai eloped from his house and stayed with Khayali Ram, he brought her back about two months back and 3 since then he was living with Asudi Bai in the Nohara of Gajan Singh. He also conveyed to the Police Officer that for last two-four days, Khayali Ram was visiting Asudi Bai, but he did not object to it. He further stated that on the day of incident, he and his wife had gone to cut wheat crop of Sakhan Singh and they returned in the evening at about 7 O' Clock. His wife Asudi Bai was lying on a cot inside Kotha on account of exhaustion and he was bringing cot and pitcher outside. At about 7:15 PM, Khayali Ram came to his house inside the Kotha and catching hold of the arm of Ashuri Bai asked her to come with him to his house to which she denied and got her hand freed which annoyed Khayali Ram and thereafter Khayali Ram immediately picked up a club and gave two blows on the head of his wife with the intention to kill her and on receipt of the injuries on the head she succumbed on the spot immediately, therefore, he raised hue and cry “Mar Diya, Mar Diya', and thereafter, Khayali Ram throwing the club ran away. He tried to catch him by chasing and shouting “Pakdo, Pakdo', then in the Chowk, Bhura Singh and Jagdish who were standing 4 there, caught hold of Khayali Ram and many other persons gathered there to whom he told about the murder of his wife. 4.2 Aforesaid information taken by Police Officer was reduced into writing by the Police Station Officer, Hindumalkot, which was read over to the complainant and his thumb impression was obtained. Pursuant thereto, FIR was registered against accused for offence under Sec.302 IPC for committing murder of Asudi Bai and investigation was put into motion. 4.3 During the course of investigation, police visited the site of incident, prepared Panchnama of the scene of occurrence and recovered the weapon of offence Club in the presence of Panchas. Photographs were got snapped, sample soil and blood smeared soil from nearby the dead body was collected. One pillow smeared with blood and the rope of cot was seized. Inquest on the dead body was held in the presence of Sarpanch and thereafter the dead body was sent for autopsy. The articles collected were sent for chemical 5 analysis to FSL and the statements of witnesses were recorded. 5. After receiving of the FSL Report as well as autopsy report and on completion of investigation, as sufficient incriminating evidence was found against the accused, the accused was chargesheeted for the offence under Sec. 302 before the Court of Judicial Magistrate, 1st Class, No.2, Sri Ganganagar, who committed the case to the Court of Sessions Judge, Sri Ganganagar. 6.The Sessions Judge, Sri Ganganagar ('trial Court', for short), framed charge against the accused for commission of offence punishable under Sec.302. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial in Sessions Case No. 45 of 1984. 7.To prove the culpability of the accused, the prosecution examined as many as 8 witnesses and relied on their oral testimony. The prosecution also produced number of documents, which were exhibited and relied upon the contents of the same. 6 8.After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, the accused has denied the case of the prosecution in its entirety and stated that a false case has been filed against him. However, he has neither led any evidence nor examined any witness in support of his defence. 9.On appreciation of the evidence on record, the trial court came to the conclusion that the deceased died a homicidal death and the accused was the author of the injuries caused to her which proved to be fatal and on the basis of evidence of the eye witnesses as well as recovery of weapon and the FSL report, the prosecution has successfully established the complicity of the accused for committing the murder of Asudi Bai. 10.On the aforesaid finding, the trial Court held that the accused has committed offence under Sec.302 IPC and consequently convicted the accused for the offence under Sec. 302 IPC and sentenced him to 7 imprisonment for life and fine of Rs. 150/-. It is this judgment and order, which has given rise to the instant appeal. 11.Mr. JPS Choudhary, learned counsel for the accused appellant, in support of the Appeal, has raised the following contentions: a)Accused has been falsely roped in the case of murder inspite of the fact that there is not even an iota of evidence to connect the appellant. It is emphasized that because of the strained relations with the prosecution witnesses he has been falsely implicated. b) Trial Court has come to the conclusion that PW4 Labh Singh is not wholly reliable witness, therefore close scrutiny of his evidence is required as some part of the evidence of PW4 is disbelieved by the trial Court, however, the trial Court has acted contrary to the record. c)FIR was sent to the Magistrate very late which also castes doubt about the genuineness of the FIR. It is also pointed out that in the FIR, name of the accused has been clearly mentioned and when the name of 8 accused was mentioned in the FIR, why the accused was not arrested on the same, day raises a serious doubt about the incident. d) Conduct of PW4 is doubtful as he made improvement at every stage of investigation, therefore, there is reason to believe that he was not present at the scene of occurrence. e)Incident has taken place in the day light and there are lot many houses in the immediate vicinity, however, the prosecution has chosen not to record statement of any of the witnesses of the immediate vicinity. f)There was no motive or reason on the part of the accused to cause death of Asudi Bai with whom he had illicit relation, on the contrary, the prosecution has motive to falsely implicate him. g)Recovery of the weapon from the scene of occurrence is also doubtful. 12. On the aforesaid premise, learned counsel submits that there is no evidence against the accused, however, 9 the trial Court has not appreciated the evidence adduced by the prosecution in correct perspective and convicted and sentenced the accused under Sec.302 IPC. Therefore, the impugned judgment and 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 offences with which he was charged. 13.Alternatively, it is submitted that even if the prosecution story of accused coming to the house of deceased and giving blows by club is accepted, in that case there was no occasion for the accused to kill her only because the deceased refused to accompany him as on previous occasion she had accompanied the accused, but the accused excited and lost balance and therefore immediately picked up the club which was lying there and gave two blows in heat of passion, therefore, the case does not travel beyond offence of culpable homicide not amounting to murder punishable under Sec.304 Part II IPC. He, therefore, submitted that if this Court comes to the conclusion that accused was the author of the injuries caused to the deceased, in that case conviction recorded against him under 10 Sec.302 IPC may be altered into Sec.304 Pt. II IPC and sentence undergone by him during trial may be treated as substantive sentence and he be set at liberty. He therefore urges to pass appropriate order in this regard. 14.Per contra, Mr. K.R. Vishnoi, the learned Public Prosecutor has supported the impugned judgment of conviction and order of sentence throughout. According to him, there is no illegality or infirmity committed by the trial Court in passing the order of conviction and sentence on the basis of evidence of PW4 Labh Singh, who has lodged the FIR and PW5 Jagdish Singh, who saw the accused running from the scene of occurrence. Besides this, there is also evidence of recovery of the weapon which was stained with blood and as per the FSL report, blood was found on the Bali as well as twine of the cot on which deceased was lying. On the aforesaid premise, according to him, there is no substance in the appeal and therefore the conviction recorded by the trial Court on the basis of evidence adduced by the prosecution does not call for any interference in this appeal and the same is required to be confirmed by 11 this Court. He, therefore, urged to dismiss the Appeal. 15.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. 16.There is no dispute that Asudi Bai died homicidal death. To prove this fact, the prosecution relied upon the oral testimony of PW2 Dr. Rajendra Kumar, who has performed the autopsy on the dead body of the deceased. He has also prepared the the postmortem report, which is on record as Ex.P/9. On conjoint reading of the oral testimony of PW4 Dr. Rajendra Kumar and the Postmortem report Ex.P/9, it is seen 12 that deceased received following two injuries: 1.Lacerated wound – 1¼ ” x ¼” x bone deep on the left frontal region. 2.Lacerated wound – 2” x ¼” x bone deep on the left parietal region. The cause of death was comma as a result of internal hemorrhage due to impact of blunt object over skull. Both the injuries were grievous in nature. 16.In view of the aforesaid evidence, we are of the considered opinion that the deceased died after receiving two fatal blows on her head; one on the left frontal region and another on the left parietal region and both the left frontal and parietal bones were fractured. Therefore, it has to be held that the deceased died homicidal death. 17.After having held that the deceased died a homicidal death, the next question which calls for consideration is whether accused was the author of the injuries. In this connection, prosecution has relied upon the testimony of sole eye witness PW4 Labh Singh, the husband of the deceased. He has inter-alia testified 13 that name of his wife was Asudi Bai, who was killed by Khayali Ram about four months ago. He further testified that before this incident, his wife eloped with this very accused Khayali Ram and that his wife Asudi Bai was in illicit relation with Khayali Ram. He stated that he brought Asudi Bai from Sirsa and he alongwith Asudi Bai started living in the house of Gajan Singh at Koni where accused killed Asudi Bai. He also stated that on the day of incident, he and Asudi Bai had gone to the field of Sarvan Singh to harvest wheat crop and returned back in the evening. His wife was lying on cot in the Kotha and he was bringing the pitcher out, at that time Khayali Ram coming in the Kotha of house and catching hold of the arm of Asudi Bai told her to proceed with him and on refusal, Khayali Ram took the club lying in Kotha and gave its blow to Asudi Bai and throwing the club near cot started running. He too ran after Khayali Ram shouting that his wife was murdered by Khayali Ram. After running when Khayali Ram reached at a distance of about two murrabas, he was caught by Jagdish and Bhur Singh and he also reached there. Khayali Ram tried to free himself and in that process his clothes torn. Thereafter, they brought Khayali Ram to the Kotha and tied him with rope. He 14 was made to sit outside the Kotha and thereafter Sarpanch also came there. Apart from Sarpanch, Jumla Singh and Gajan Singh were also called and on asking by them Khayali Ram said that he killed Asudi Bai. He went to Police Station Hindumalkot taking with him Sarpanch and lodged the report Ex.P/10. The police came to the village in night till then Khayali Ram was lying outside the Kotha tied there and nearby him Bhura Singh, Jagidsh and others were sitting. Police prepared the map of his house and saw the dead body of his wife. The police recovered the club from there and seized soil from the place of incident. The police also seized the pillow and the twine of cot. Khayali Ram was arrested next day at 11 O' Clock by the police and the police also reduced in writing all these proceedings. 17. 1 It may be noted that this witness has been cross examined by the learned counsel for the accused in detail. Lot many suggestions were put to him that he has not seen the incident and he was not present at the place of incident, however, he rebutted all the suggestions and reiterated that in his presence accused gave two fatal blows to his wife, who was 15 laying on the cot and on receiving the two blows died immediately. 17.2 On re-appraisal of the evidence of this witness, according to us, he has no reason to falsely implicate the accused. He has candidly admitted in the First Information Report as well as in evidence before the Court that his wife had illicit relation with accused and prior to about 4-5 months ago Asudi Bai eloped from his house and stayed with Khayali Ram and then he brought her back about two months back and he was having no objection to the accused coming to his house. Therefore, his evidence is of sterling quality and there is no reason to disbelieve the evidence of PW4. 18.It is feebly contended by the learned counsel for the appellant that PW4 Labh Singh being the sole eye witness and close relative of the deceased, his evidence cannot be relied unless it gets corroboration of other evidence. He submitted that there are lot many house in the immediate vicinity but and the prosecution has not chosen to collect evidence of the persons residing in the immediate vicinity. 16 19.The aforesaid submission of the learned counsel is absolutely meritless as it is settled proposition of law by catena of decisions of the Hon'ble 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 Labh Singh (PW4) is of sterling quality, unimpeachable, inspiring confidence and being trustworthy, reliance can be placed upon his oral testimony to base conviction of the accused for commission of the offence of murder of Asudi Bai. 19.1 In this connection, it would be appropriate to refer to the judgment of Supreme Court in the case of Ramesh Krishna Madhusudan Nayar Vs. State of Maharashtra, reported in AIR 2008 SC 927, wherein 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 17 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. 20.Applying the principles enunciated by the Hon'ble Supreme Court to the facts of the instant case and on close scrutiny of the evidence of PW4 Labh Singh, there is no manner of doubt that the accused was author of the injuries caused to the deceased. 21.That apart, there is also evidence of PW5 Jagdish, who has inter-alia testified in his examination-in-chief that he knew accused Khayali Ram, who was present in the Court. He has stated that about four and a half month back he was near the shop of Omi Kirad. It was evening time of seven past half clock. Khayali Ram came running from the street and after him Labh Singh was running and shouting that his wife was killed by the accused. This witness says that he caught hold of Khayali Ram and Bhura Singh also came there and he also caught hold of Khayali Ram. At that time, Kala Singh and Labh Singh also came there. In the attempt of Khayali Singh to free himself, his clothes torn. 18 Thereafter, Kala Singh, Labh Singh and Bhura Singh, all the four, took Khayali Ram to the premises of Gajan Singh and there he was tied. Sarpanch Nidhan Singh was also coming behind them. After tying Khayali Ram, his father Jumla Singh and Gajan Singh were called, who arrived after about half and hour and saw that wife of Labh Singh was lying dead. On their asking, Khayali Ram told that he committed wrong by murdering the wife of Labh Singh. Thereafter, Labh Singh and Nidhan Singh went to call police. 21.1 He has also been cross examined at length by the learned counsel for the accused. He has successfully withstood the test of cross examination. 21.2 On re-appreciation of his evidence, according to us, it is proved that he was standing on the shop and on hearing the shouts of PW4 Labh Singh, he caught accused Khayali Ram. Bhura Singh also came there and he also caught hold of Khayali Ram. At that time, Kala Singh and Labh Singh also came there. The clothes of Khayali Ram torn on his trying to free himself. Thereafter, Kala Singh, Labh Singh and Bhura Singh, all the four, took Khayali Ram to the 19 house of Gajan Singh and there he was tied. Therefore, the conduct of the accused is also relevant, which shows that after causing murder he tried to flee away but was caught by this witness. 22.Besides this, there is also corroborative evidence with regard to recovery of club and the FSL report, which suggests that the accused has inflicted injuries with the said weapon which was found stained with blood. 23.Mr. JPS Choudhary tried to convince this Court that Muddamal was not sent to the FSL in sealed condition. This argument is also not convincing. PW8 Tarsem Singh, who had taken the sealed parcel to FSL, has in unequivocally terms stated before the Court he delivered the said parcel in sealed condition. 24.On overall re-appraisal of the evidence of the sole eye witness which gets corroboration from the evidence of PW5 Jagdish Singh as well as Panch witnesses of recovery and the FSL Report, according to us, complicity of the accused in causing injuries to the deceased was duly established. 20 25.Now this takes us to examine the alternative submission raised by the learned counsel that it is not a case of clearcut murder but a case of culpable homicide not amounting to murder punishable under Sec.304 Pt. II IPC as the accused had no intention to kill Asudi Bai with whom he had affairs. He submitted that if he would have been mindful to kill her, he would have come with weapon but he came without any weapon to accompany Asudi Bai with him and on her refusal he suddenly got excited and lost balance, and therefore, he was provoked by the deceased and as a result of provocation, accused inflicted injuries, as such, the case falls under Exception IV of Sec.300 IPC as the act done by the accused was done in the heat of passion without his taking any undue advantage or acted in a cruel or unusual manner because he has not inflicted blows one after another, he has inflicted only two blows. 26.A perusal of the evidence, it is seen that the deceased was lying on a cot in the evening as she was tired after doing the labour work. At that time, accused came there and asked her to accompany him to which she refused and on refusal he took the weapon which was 21 lying there and inflicted 2 fatal blow with the intention to kill her. The witnesses came there immediately. It may be true that when he came to her house, he might not have intention to kill her but on refusal intention came to him and as a result of such intention he inflicted two fatal blows on the vital part of the body i.e. head and due to those injuries there were fractures of both left frontal and parietal bones. If there was no intention on his part, he would not have chosen the vital part of the body of the deceased. 27.Now so far Exception IV of Sec. 300 IPC is concerned, it says that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the instant case, there is no evidence that prior to the incident there was quarrel between them or hot exchange of words or altercation between them. Deceased only refused to accompany him, which does not give him licence or premium to kill her even though accused and deceased had illicit