( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 127 OF 1998 Dattu Kisan Amrute, R/o Watephal, Taluka and District Ahmednagar APPELLANT VERSUS The State of Maharashtra RESPONDENT .... Mr. V.S. Bedre, advocate for the appellant. Mr. N.H. Borade, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 1st December, 2010] ORAL JUDGEMENT : 1. This appeal is directed against judgement rendered by learned Sessions Judge, Ahmednagar in Sessions Case No. 12/1996 whereby the appellant is held guilty for the offence punishable under section 307 of the I.P. Code and has been, therefore, convicted for the commission of such offence and is sentenced to suffer rigorous imprisonment for period of 3 & 1/2 years and to pay fine of Rs. 200, in default to suffer rigorous imprisonment for one (1) month. ( 2 ) 2. Briefly stated, the prosecution case is that injured Sudam had purchased a thrashing machine which he used to give on rental basis to the farmers. In the night of 26th October, 1995, he had taken the thrashing machine to the agricultural land of the appellant. In the early morning, he called the appellant while the latter was sleeping in the varandah of the house alongwith his wife. The appellant suspected that injured PW Sudam had attempted to outrage modesty of his wife. The appellant, therefore, approached injured PW Sudam from behind while the latter was standing alone in the agricultural land. The appellant dealt with a heavy blow of the stick on head of the injured - PW Sudam from behind. Immediately, injured PW Sudam fell down on the face and became unconscious. His brother heard hue and cry and, therefore, reached the place of the incident. His brother lodged FIR on basis of the information which was gathered from the persons who had flocked around the place. It is alleged that the stick was recovered at the instance of the appellant during course of the investigation. On basis of the material gathered during course of investigation, he was chargesheeted for offence punishable under section 307 of the I.P. Code in as much as the medical opinion revealed that the head injury was of ( 3 ) grievous nature and could have taken the toll. 3. The learned Sessions Judge placed implicit reliance on the solitary version of injured PW Sudam and the attending circumstances, particularly, recovery of the stick at his instance. The learned Sessions Judge held that identity of the appellant as the assailant is duly established and that considering the nature of the grievous injury caused on head of injured PW Sudam, the charge for offence punishable under section 307 of the I.P. Code is also duly proved. In keeping with such findings, the appellant was convicted and sentenced, as mentioned at the outset. 4. Heard learned advocate Mr. Bedre for the appellant and learned APP Mr. Borade for the State. 5. Clinching question to be determined is as to whether the uncorroborated version of PW Sudam (victim) could have been implicitly relied upon by the learned Sessions Judge and, therefore, the impugned judgement of conviction and sentence is legal and proper. 6. There cannot be any two opinion about the legal ( 4 ) position that even a solitary statement would suffice if credibility of the witness is duly established and based on such a solitary version, the conviction can be awarded. It is important to notice, however, that the testimony of PW1 Ashok reveals that he heard hue and cry at about 6/6.30 a.m. in the relevant morning and, therefore, rushed towards the farmhouse of the appellant. His version purports to show that injured PW Sudam, who is his real brother, was found lying in an unconscious condition. He further noticed that his cousin by name Ramdas Sable, sister Tulsa, Bhamabai Sable and others had gathered around the place. He immediately took injured PW Sudam to a private hospital of Dr. Athare. He lodged the FIR on next day. He corroborates the recitals of the FIR (Exh-14). The FIR purports to show that his cousin and other relatives, who had gathered at the place, informed him that the appellant had assaulted injured PW Sudam for the reason that in the night time, the latter had attempted to outrage the modesty of the wife of the appellant by pulling up her saree and parkar (petticoat). The so called incident of alleged outraging modesty of the wife of the appellant is said to have occurred while she was sleeping in the night time. The evidence on record purports to show that injured Sudam had taken the thrashing machine to the farmhouse of the appellant ( 5 ) in the relevant night. The FIR purports to show that on enquiry, PW Ashok learnt that the appellant was annoyed when his wife narrated the incident of outraging her modesty by the injured - PW Sudam. As per the recitals of the FIR, the incident occurred somewhere around 6/6.15 a.m. 7. As stated before, there is no eye witness to the incident except PW3 Sudam. The testimony of injured of PW Sudam purports to show that in the relevant night, at about midnight, he started the thrashing machine. He states that he slept at the place after commencement of the thrashing machine. The work of thrashing was over by about 3/4 a.m. His version purports to show that the thrashing work of the grains of one Rama Mokale thereafter had commenced. His version reveals that he left for his house at about 6 a.m. and returned to the place of thrashing machine within about half an hour. He narrated that while he was talking with parental aunt of the appellant, by name Shahabai Amrute, all of a sudden, the appellant came from behind him and dealt blow of a stick on his head. He, therefore, fell down and became unconscious. 8. Let it be noted that Shahabai Amrute was thus shown ( 6 ) as eye witness who could have seen the appellant while mounting the assault on the injured. She was not examined during the trial. Moreover, her presence at the place is not stated by anyone else. She is the paternal aunt of the appellant, yet atleast her police statement could have been confronted to her by calling her as a witness. The testimony of injured PW Sudam reveals that he was not in a position to see the assailant because the stroke of the stick was given from behind his head. It is further explicit that he instantaneously became unconscious after falling down. His face was towards the ground when he fell down. He was confronted with his police statement which prima facie shows that he had thrown torchlight on the person of wife of the appellant in the relevant night. There is no corroboration to his version regarding the allegation that the appellant suspected outraging of the modesty of his wife by injured PW Sudam and, therefore, assaulted the latter by means of a stick. 9. It is not necessary to elaborately discuss the remaining evidence of the prosecution. The testimony of PW4 Dr. Anil Athare corroborates the Medico-Legal Certificates (Exh-22 and Exh-23). It appears that for more than one month, ( 7 ) injured PW Sudam was medically treated in the private hospital. It appears that for a long period, he was unable to sleep. It is clear, no doubt, that the grievous injury was caused to injured PW Sudam which could have resulted into his death in ordinary course of nature. The recovery of stick under the memorandum panchanama at the instance of the appellant is not of much significance because no blood was noticed and the same is not proved to be the instrument of assault. 10. The identity of the appellant as assailant is not proved beyond reasonable realm of doubt. The alleged incident of throwing torchlight on the person of the wife of the appellant is said to have occurred in the midnight whereas the assault is said to have occurred in the early morning around 6/6.15 a.m. The appellant was allegedly not seen by PW Sudam or anybody else except said Shahabai Amrute, but she is not examined as a witness. The identity of the appellant as an assailant is, therefore, not duly proved. Considering all these reasons, it will have to be said that the version of PW Sudam is not properly appreciated by the learned Sessions Judge. In this view of the matter, the impugned judgement is unsustainable in the eye of law. ( 8 ) 11. In the result, the appeal is allowed. The impugned judgement of conviction and sentence is set aside. The appellant is acquitted of the charge for offence punishable under section 307 of the I.P. Code and the bail bonds be deemed as cancelled. The amount of fine, if deposited, shall be refunded to him. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl127-98