JUDGMENT 1. - This criminal appeal arises out of the judgment and order dated 21st May, 2003 rendered by the Additional Sessions Judge, (Fast Track), Laxmangarh Alwar whereby the appellant Babu Lal was convicted for the offence under Section 302 Indian Penal Code and sentenced to imprisonment for life with a fine of Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months but acquitted in the offences under Section 148, 307, 323 of Indian Penal Code and 27 of the Arms Act. 2. The factual matrix of the prosecution case in brief is as under That on 7th April, 1997, the complainant Mangturam accompanied by his brother Amarsingh, Yadram, Devi Sahai and his two sons Raju and Giriraj went to attend the Ramlila being played in the village Toda situated in Tehsil Laxmangarh Distt. Alwar. During the dramatised stage display of holy tale of epic Ramayan (Ramlila), the accused persons Mool Chand, Shivdayal, Kalya @ Ramavatar and Prahalad came in a drunken state throwing money on stage artists and persuading them to sing obscene songs. Having found the sleazy atmosphere, the complainant asked them to stop it and let Ramlila proceed ahead whereupon the accused persons abused him. The complainant accompanied by his brothers and sons left the Ramlila ground and returned to their home. It is alleged that following the complainant party, at about 9.30-10.00 PM, the accused persons Babulal, Sardara, Moolchand, Shivdayal, Prahlad, Kalla @ Ramavatar, Lachman, Kailash, Lala, Ramsahaya, and Kala armed with lathis, Pharsie and guns came there and attacked them. Seeing the complainant party frustrated, the accused persons pelted stones and the accused Sardara asked the accused Babulal to kill them and set ablaze their houses. It is further alleged that Kalia @ Ramvatar and Mangtu s/o Ganpat set fire the houses of the complainant and accused Babulal opened fire on Prakash. The accused Laxman is alleged to have assaulted upon Mangtu with stones. The witnesses Giriraj, Khemaram, Ramdhan, Amar Singh @ Buti intervened whereupon Giriraj received injury on left eye. Prakash who sustained a bullet injury near the ear, became unconscious. The accused Laxman is alleged to have assaulted upon Mangtu with stones. The witnesses Giriraj, Khemaram, Ramdhan, Amar Singh @ Buti intervened whereupon Giriraj received injury on left eye. Prakash who sustained a bullet injury near the ear, became unconscious. The complainant Mangtu submitted a written report Ex.P/1 before S.H.O., Police Station, Laxmangarh, Alwar whereupon the police lodged the FIR Ex.P/2 and commenced investigation.The Investigating Officer prepared the site plan Ex.P/3, recorded the statements of witnesses acquainted with the facts and circumstances of the case, collected the blood smeared soil and control soil vide Ex. P/16, arrested the accused persons and recovered the lathis at the instance of accused used in the commission of offence. On 9th April, 1997 the injured Prakash succumbed to his injuries. His autopsy was performed, necessary memo were drawn and after usual investigation, the accused persons namely Prahalad, Ramsahay, Kailash, Lalaram, Lichman, Ramavatar, Shivdayal, Kada & Shivcharan, Sardara, Babulal and Moolchand were sent for trial to the Court. 3. Out of eleven accused persons arraigned before the learned trial court, the accused Babulal was charged for the offences under Section 148, 302, 307 and 323 Indian Penal Code and Section 27 of Arms Act and rest of the 10 accused were indicted for the offences under Section 148, 302/149, 307/149 and 323 of Indian Penal Code who pleaded not guilty and claimed trial. 4. In order to further its version, the prosecution examined as many as 20 witnesses. In their explanation under Section 313 of Criminal Procedure Code, the accused claimed innocence. On completion of trial, the appellant Babulal was convicted and sentenced as indicated hereinabove and rest of the accused persons were acquitted of all the charges. 5. We have heard the submissions advanced by the learned counsel for the appellant, learned Public Prosecutor and with their assistance scanned the material available on record. 6. The learned counsel for the appellant Babulal has contended that there is no evidence on record but the statements of PW/8 Smt. Sushila, who has deposed the accused Babulal having murdered her husband by gun shot. Smt. Sushila, the wife of the deceased is highly interested witness and her testimony suffers from numerous infirmities. 6. The learned counsel for the appellant Babulal has contended that there is no evidence on record but the statements of PW/8 Smt. Sushila, who has deposed the accused Babulal having murdered her husband by gun shot. Smt. Sushila, the wife of the deceased is highly interested witness and her testimony suffers from numerous infirmities. Learned counsel Shri Meena has further contended that Smt. Sushila was not present at the scene of occurrence and approximately after four months, she has been made up as an eye-witness by another Investigating Officer Shri Yashpal Sharma, Addl. S.P., who has not appeared in evidence, hence the sole uncorroborated, tainted and made up testimony of the witness PW/8 Smt. Sushila is not sufficient to hold the accused Babulal guilty for the murder of Prakash. The impugned judgment is based on surmises and conjectures. There being not even shred of evidence on record petitioner the appellant, the impugned judgment of conviction cannot be sustained and the appellant deserves to be acquitted. 7. Per contra, the learned Public Prosecutor appearing for the State has simply urged that the impugned judgment of the learned trial court is cogent and well-merited. There is no reason to disbelieve and jettison the testimony of PW/8 Smt. Sushila and her evidence cannot be abandoned merely for the reason that she happened to be the wife of the deceased. Thus, the criminal appeal filed by the appellant being devoid of merits deserves to be dismissed. 8. Turning to the evidence of prosecution witnesses, it is found that all the independent witnesses including the complainant PW/1 Mangatu, PW/2 Amar Singh, PW/3 Yadaram, PW/4 Kherati, PW/5 Giriraj, PW/6 Devisahai, PW/7 Rajendra Kumar, PW/9 Narain, PW/10 Devirai, PW/11 Roopsingh, PW/12 Gangaram, PW/13 Cullu, and PW/14 Prahalad, have not supported the prosecution case and turned hostile. All these independent witnesses are residents of the same village and they were present at the scene of occurrence as they all were witnessing Ramlila being played there. Albeit, they have deposed that Prakash sustained a gun-shot injury on his skill but at the same time, they have also stated that they did not know as to who opened the fire upon Prakash, None of therm has named the accused appellant Babulal having fired upon the deceased Prakash. 9. The learned trial Judge has based the conviction of the appellant solely on the testimony of PW/8 Smt. Sushila. 9. The learned trial Judge has based the conviction of the appellant solely on the testimony of PW/8 Smt. Sushila. He has found her testimony worthy of credence and of sterling worth irrespective of, her statements having stood uncorroborated by the medical evidence of PW/18 Dr. P.C. Vyas who performed the autopsy. 10. Vide post-mortem report Ex.P/29 deceased Prakash is found to have sustained the following injuries: "(i) Stitched wound 1 cm long with dried clotted blood & brackish scab, present on Rt. Pareto-occipital juncture of scalp, on anter half portion, which is 7 cm. above and posterior to upper part of Rt. Ear pinna. Both eyes are black eyes. On dissection, sub scalp hematoma present on Rt. Pareto-tempero-occipital regions. On further exam. Hole of size 3/4 X 3/4 cms. found in Rt. Parietal bone corresponding to the external injury. At base of skull, Lt. side orbital plate found fractured & one paller found lodged in Lt. side orbital plate. On further exam, sub dual haematama seen in Lt. Fronto-paricto-temporal regions. Brain showing lacerated 3 x 3 cm. at juncture of Rt. Parieto- occipital labes & the track of usual goering medically & forwards reaching Rt. To L. Frontal Labe, where lacerated 2 x 1 1/2 cm. seen. Intra cerebral hemorrhage also seen in both cerebral hemispheres. One pellet recovered from brain matters from Lt. Frontal labe. (2) Lacerated punctured wound 1/2 x 1/2 cms. muscle deep with dried dank lotted blood, present near tragus of Rt. Ear. 2.5 cm from Rt. ear lobule with no blackberrying & tattooing of the mangrove of wound, which are irregular. All the above mentioned injuries are ante mortem in nature." 11. The autopsy surgeon PW/18 Dr. P.C. Vyas found the cause of death 'Coma', as a result of injuries to skull and brain as mentioned which were sufficient to cause death in the ordinary course of nature. Dr. Vyas also mentioned that both the above injuries were found to have been caused by shot-gun fire-arm and these were distant shots. It is also to be noticed that Amar Singh vide injury report Ex.P/8, Yadram vide injury report Ex.P/9, Kherati vide injury report Ex.P/10, Giriraj Prasad vide injury report Ex.P/12 and Kheratiraj vide injury report Ex.P/28 also sustained injuries. 12. It is also to be noticed that Amar Singh vide injury report Ex.P/8, Yadram vide injury report Ex.P/9, Kherati vide injury report Ex.P/10, Giriraj Prasad vide injury report Ex.P/12 and Kheratiraj vide injury report Ex.P/28 also sustained injuries. 12. Having scanned the evidence of PW/8 Smt. Sushila carefully and cautiously, it is observed that her presence has not been found at the scene of occurrence by the Investigating Officer PW/19 Nihal Singh. In his searching cross-examination, he has categorically deposed that Smt. Sushila was not present on the spot at the time of occurrence. Albeit Smt. Sushila in her deposition has stated that when the accused appellant Babulal fired on her husband, she was present there. She has further stated that her husband was killed at the house of Mangatu and at that time, she was following her husband. Her house is only more than 100 steps away from the house of Mangatu. But in her cross-examination she has alleged one Gopal also to be one of the assailants whereas he is not at all the accused of this case. 13. It is well settled law that the conviction of an accused in a murder case can be based on the testimony of a single witness without corroboration, provided the Court comes to the conclusion that his evidence is uninfluenced, trustworthy and completely above board. In the case of (1) Jose v. State of Kerala, AIR 1973 SC 994 , the Hon'ble Apex Court has observed that the evidence has to be weighed and not counted. However, if the witness is not wholly reliable then the Court had to look for corroboration in material particulars by reliable testimony, direct or circumstantial. 14. Undisputably, PW/8 Smt. Sushila happens to be the wife of deceased Paraksh. She may be relied to be a highly interested witness and the Court may search independent corroboration of her testimony but the corroboration required of a witness, who is a relation of the deceased in a murder case, is not that kind of corroboration which would be necessary to support the case of an approver or complicity but only corroboration is needed as would be sufficient to lend an assurance to the evidence before the Court and satisfy the Court that the particular person or persons were really concerned in the offence. 15. 15. Though the Legislature has placed no jurisdictional limitation on the power of a Judge to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from time to time evolved some rules and guidelines of circumspection as to when such evidence can be or cannot be acted upon without corroboration. The decision of the Supreme Court in (2) Vadivalu Thever v. State of Madras, AIR 1957 SC 614 may be referred to as a leading decision on the point where Sinha, J. (as His Lordships then was), speaking for the Court classified the witnesses into three categories namely (i) wholly reliable; (2) wholly unreliable; and (3) Neither wholly reliable nor wholly unreliable and pointed out that in the first category of proof, the court should have no difficultly in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination and that in the second category also, the Court equally has no difficulty in coming to its conclusion. 16. His Lordship proceeded to point out further that it is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. 17. In the instant case, indisputably, PW/8 Smt. Sushila falls in the second category whose testimony is found to be wholly unreliable because of the following reasons : (i) The presence of PW/8 Smt. Sushila is not at all established at the scene of occurrence by any evidence. It is nowhere found that Smt. Sushila accompanied her husband to the Ramlila ground where Ramlila was being played. (ii) Written report Ex.P/1 merely reveals that when the complainant PW/1 Mangatu, his brothers Devisahai and Prakash and sons Raju and Giriraj having found sleazy atmosphere returned to the house of Mangatu, PW/8 Smt. Sushila was not with them. (iii) The case on hand is found to have been investigated by more than two investigating officers namely PW/19, Nihal Singh, the then SHO of Police Station Laxmangarh, Shri Laxman Gaur Dy. S.P. and Shri Yash Pal Sharma, the then Additional S.P., Alwar. (iii) The case on hand is found to have been investigated by more than two investigating officers namely PW/19, Nihal Singh, the then SHO of Police Station Laxmangarh, Shri Laxman Gaur Dy. S.P. and Shri Yash Pal Sharma, the then Additional S.P., Alwar. PW/19 Nihal Singh never recorded the statements of Smt. Sushila under Section 161 Criminal Procedure Code, for the simple reason that she was not found to be a witness of this case. (iv) Shri Yash Pal Sharma is also not found to have examined her. It is after 5 months of the occurrence that Shri Yashpal Sharma Additional S.P., recorded her statements EX.D/1 under Section 161 Criminal Procedure Code, on 8th September, 1997 and thereafter Addl. S.P., again recorded her additional statements EX.D/2 on 20th January, 1998. (v) The relevant portions 'A' to 'B' of her statements Ex.D/1 and 'A' to 'B' of statements Ex.D/2 have not been proved by the Investigating Officer. (vi) Shri Yashpal Sharma has not appeared in witness-box and eschewed his evidence. The material on record exhibits that a compromise took place between both the parties during investigation of the case. (vii) From the statements Ex.D/2 of Smt. Sushila it is found that a Panchayat was held in the village and an amount of Rs. 1,50,000/- was settled to be given to the wife of deceased in the Panchayat. Statement also reveals that the complainant Mangatu had obtained Rs. 60,000/- from accused Sardara and Devishahai and Mangatu had taken Rs. One lac in order to change their statements. (viii) It seems that the decision of Panchayat was not executed in letter and spirit which caused prejudices to Smt. Sushila who later on complained to senior police officers. (ix) The manner in which the statements Ex.D/1 have been recorded by the Investigating Officer after 5 months of the occurrence casts doubt about the integrity of this police officer who has exhibited indomitable verve in making up her a witness. 18. In view of the above factors, the presence of PW/8 Smt. Sushila on the scene of occurrence is not found to be established. This witness unequivocally appears to be a false creation of the Investigating Officer Yashpal Sharma who himself has eschewed his evidence. The evidence of Smt. Sushila is not found to be honest, trustworthy and completely above board. In view of the above factors, the presence of PW/8 Smt. Sushila on the scene of occurrence is not found to be established. This witness unequivocally appears to be a false creation of the Investigating Officer Yashpal Sharma who himself has eschewed his evidence. The evidence of Smt. Sushila is not found to be honest, trustworthy and completely above board. There being contradictions in material particulars, discrepancies and exaggerations, her evidence inspires no confidence and in the absence of corroborative evidence, it is not safe to base the conviction of the appellant on her untrustworthy and uncorroborated testimony. 19. It seems that the learned trial court has arrived at the finding of conviction on the basis of surmises and conjectures resulting from the influence of misconceived sympathy with the lady who had lost her husband. 20. In the ultimate analysis, the finding of conviction of the learned trial Court does not appear to be cogent, just and proper. The impugned judgment cannot be sustained and thus deserves to be set aside. 21. For these reasons, we allow the appeal and set aside the impugned judgment dated May 21, 2003 of Additional Sessions Judge (Fast Track) Laxmangarh Distt. Alwar. We acquit the appellant of the charge under Section 302 Indian Penal Code. Appellant Babu Lal, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.Appeal allowed. *******