HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA 8s HON'BLE MR. R. L. JHANWAR. JJ. Cr.A.No. 594/2001 APPELLANT VERSUS RESPONDENT Ratna son of Sidhwa Kawar, aged about 25 years, resident of vUlage-Bhuneshwarpur, Police Station -Shankergarh, District - Surguja (Chhattisgarh). The State of Chhattisgarh. CRIMINAL APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURE CODE 1973. Present:- Shri Jagdish Singh Baraik, Advocate for the appellant. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 02/02/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of convection and order of sentence dated 28/11/97 passed by Sessions Judge, Ambikapur District Surguja (Chhattisgarh) in Sessions Trial No. 140/97 whereby and where under after holding the appellant guilty for the comniission of culpable homicide amounting to murder of deceased Sedal Ram convicted the appellant under Section 302 of the Indian Penal Code and ^ . sentenced imprisonment for life. •lill ViSi.ilfc n;.! •im BfeRi »"w BSS !:i:i ! ^••- '91 The judgment is impugned on the ground that without any iota of evidence Court below has convicted and sentenced the appellant aforementioned and thereby comniitted an illegality. Case of fhe prosecution in brief is that on fateful day of 8/4/97 at about 7 p.m. deceased Sedal Ram and appellant ealled in Panchayat meeting relating to sonae paynient. Deceased Sedal Ram was asked for payment then appellant annoyed and went back from the meeting. Deceased Sedal Ram went near Patal Harinath and he was sitting with PW2 Dashrath on narrow platfonn (Ota). Appellant again came with axe and assaulted the Sedal Ram by axe. Sedal Ram fell down and died on the spot. PW1 Harinath went to the Police Station second day 24 kms. away from the spot and lodged the marg vide Ex. P-1 and First Information Report vide Ex. P-2. Investigating Officer left for scene of occurrence after summoning the witnesses vide Ex. P-3. Inquest over the dead body of Sedal Ram was prepared vide Ex. P-4. Dead body was sent for autopsy to Govt. Hospital Shankargarh vide Ex. P-10. Autopsy was conducted by PW5 Dr. Smt. J. Kujur vide Ex. P-18 and found following injures:-(l) Contusion of l/2" x %" over right scapular region (2) Contusion of 1/2" x 14" below the left scapular region (3) Incised wound of 1.5" M IV s";: ! .r'i'tB II. 'B ^ a 1~' x %" up to bone deep occipital region including the fracture of occipital bone. (4) Lacerated wound with depressed fracture of 2" x 1.5" over left temporal frontal region. Injuries were found anti-mortem in nature. Cause of death was shock as a result of head injury. Death was homicidal in nature. 4. On 10/4/97 ap^ellant was taken into custody he made disclosure statement of the axe vide Ex. P-5. Axe was recovered from the appellant vide Ex. P-6. Blood stained and plain soil were recovered from the spot vide Ex. P-7. One blood stained Dhoti was recovered from the aecused vide Ex. P-8. Axe was sent for examination to doctor who opined that injury found over the dead body may be caused by the axe which he examined vide Ex. P-11A. Sealed packet after autopsy was seized vide Ex. P-13. Seized articles were sent for chemical examination vide Ex. P-16. Presence of blood was not confirmed by the chemical examiner over axe, Dhoti of tiie accused vide Ex. P-17. 5. Statenaent of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Ambikapur who in tum committed the '• - case to the Court of Sessions, Ambikapur. El III IfS ^ ^ ^:: ^ :m '•—j-! fi' 10. In order to prove the guilt of the appeUant/accused prosecution exammed as well as 5 witnesses. Aecused was examined under Section 313 of the Code where he denied the circumstances appearuig against him, innocency and false implication is claimed. After affording an opportunity of hearing to the parties leamed Sessions Judge convicted and sentenced the appellant aforementioned. Learned counsel for the parties are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that-case is based on solitary evidence pf PW2 Dashrath which is not safe to rely another eye witness were present but reasons best known to the prosecution has not examined other wita-iesses who unfold the real story. The evidence of PW2 Dashrath is full of-contradiction and omission and Dashrath is not fully reliable witness therefore without any further corroboration his evidence is not sufficient save for basing the conviction of the appellant. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that present conviction is based on solitary evidence of PW2 Dashrath who is fully reliable witness his evidence - inspire confidence and trustworthy. Prosecution is not rlrf.liB fr--"l (- s-tj W,is under obligation to examine all witnesses for proving the fact the quality of witness and number of witnesses is not material. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a result of anti- mortem injury of deceased Sedal Ram has not been substantially disputed by the appellant on the other hand, otherwise also established by the evidence of PW5 Dr. Smt. J. Kujur and autopsy report Ex. P-18 which reveal that fatal injury including fractyre of occipital bone and temporal bone was found over the body of the deceased and death was homicidal in nature. 13. As regeu-d the complicity of the appelleint/accused in crime in question is concerned the conviction is based on the evidence of solitaiy witness PW2 Dashrath who was deposed in his evidence that Rs. 30/- was remained for payment to deceased Sedal Ram from the appellant some altercation took place between deceased and appellant then deceased Sedal Rsun went to Patal Haruiath then finaUy he came near his house and was sitting on the narrow platform (Ota). Appellant went to his house but after some time he came with axe and f m I8PI1 ..-r , .;' ^\ assaulted to Sedal Ram over his head and temporal region deceased fell down and finally he died. In Para -5 he has admitted that he has seen the appellant whUe he was coming towards him and he also stated to the police that appellant came towards his house but same does not finds place in his previous statement Ex. D-1. He has denied the suggestion that appellant has not assaulted the Sedal Ram by axe. 14. Prosecution has also adduced the evidence relating to recovery of weapon at the instance of appellant but nobody has identified the weapon. Blood was not found in the weapon therefore the evidence relating to the discovery of the weapon at the instance of appellant is of no use. PW2 Dashrath is a solitary witness, conviction can be based on the evidence of solitary witness. 15. In case of Jhapsa Kdbari and others, Appellants v. State qfBihar. Respondent1 Apex Court has held that there is no bar is basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. Para-9 reads as follows:- "There is, However, no bar is basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. The Sessions Court and the High Court examined the 'iis ;N 3.1 4- ' AK2002SC312 '.'.'3S -f:Si ^•li!:s ;IS !^'% 0\ I'.-il testimony of PW-1 and found no reason to disbelieve it. We have also gone through the testimony ofPW-1. We are also ofthe view that her deposition is most natural, reliable and trustworthy. She could not be shaken in the cross- examination. Simply because 14 years' old boy did not name her in the fardbayan, in the facts of the case, is ofno consequence and does not require her evidence to be rejected. He must have been under a mental tension on account of the murder of his father and uncle. In our view, there is no infirmity in the conviction and sentence of Bhikar Raut and Isralil Kabari for offence under Section 302/34 IPC." 16. While.dealing with the question of conviction on the basis of soUtary witness Apex Court has held in case of Chittar Lal, Appellant v. State of Rafasthan, itespondent2 that the conviction can be based on the / testimony of sole witness it is the quality and not the quantity of evidence that is relevant for proving or disproving a fact. Para-7 reads as foUows:- Therefore, the plea that P.W. 3's testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness (P.W. 3 's) testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected K •t-;l na .! t' -^ 2 AIR3003 SC 3590 < « f «k Briife fet. 17. I'n S. 134 ofthe Indian Ewdence Act, 1872 (in short 'Evidence Act'). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one u'itn.ess, leaving astde those cases which are not of unknown occurren.ee where detennination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crim.es offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliabihty. If the testimony is found to be reliable, there is no legal impedunent to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact." In the present case the fact that appellant came near the house of PW2 Dashrath and assaulted the Sedal Ram by axe is unchallenged in his cross exacnination supported by First Information Report Ex. P-2 and marg Ex. P-1. Injuries over the head is also supported -.by the medical evidence. In the present case the fiii ,-t- ^ Q^ evidence of solitary wita-iess Dashrath inspire confidence, trustworthy and safe to rely. 18. As regard the question of motive is concerned the motive is only aid in criminality and loses its importance. In case of direct evidence even ptherwise motive can be inferred on the basis of the nature of injury, part of the body where injury was caused, weapon used and other like circumstances. 19. In the present case after first part of the incident appellant went back and came after some time with axe and assaulted the deceased by the axe shows his grave intention of causingmurder ofthe deceased. 20. After appreciating the evidence available on record learned Sessions Judge has convicted and sentenced the appeUant under Section 302 of the Indian Penal Code and has awarded minimum sentence prescribed under the law. 21. On close scrutiny of the evidence, we do not find any illegality or infirmity warranting any interference. Appeal is devoid of merits. Consequently, the criminal appeal is liable to be dismissed and it is hereby dismissed. Sd'- T.P. Sbarma Judge Sd/- R.L. Jhanwar Judge I» «I;;i i (i:;;i' Bi-