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Madhya Pradesh High Court · body

2010 DIGILAW 796 (MP)

Nandram v. State of M. P.

2010-08-06

S.L.KOCHAR, S.R.WAGHMARE

body2010
JUDGMENT S.L. Kochar, J. 1. The Appellants have preferred this appeal challenging the impugned judgment dated 9/8/2000 passed in S.T. No.35/96 by learned Additional Sessions Judge, Biaora, district Rajgarh (M.P.), whereby convicted the Appellants under Section 302/149 of the Indian Penal Code (for short "the IPC"), sentenced to RI for life with fine of Rs. 1,000/- to each. The Appellants have also been convicted under Section 148 of "the IPC", sentenced to RI for one year with fine of Rs. 1,000/- to each. In default of payment of fine, each Appellant shall suffer additional RI for three months in two counts. 2. According to the prosecution case, on 7.11.1995 at about 6-6.30 p.m. complainant Hanri Singh (P.W.-8) had gone to his field with a tiffin for his Bhabhi Maa from his house situated in village Amargarh. In the field his Bhabhi Maa and Batedar (partner) were sleeping. After reaching of Hari Singh, Batedar left for village Amargarh. Thus, complainant Hari Singh and his Bhabhi Maa namely Gulab Bai remained at the field. At about 7 to 8 P.M. when Gulab Bai was lying on bed and complainant Hari Singh was sitting nearby, 5-6 persons came from the side of village Amargarh having Lathis and Farsis. The deceased Gulab Bai said Hari Singh to run away and seek help. Hari Singh ran away up to some distance and by hiding himself behind the heaps of stones and dust, saw that Appellants had assaulted Gulab Bai. Upon hearing cry, wife of Chhitar Singh reached on the spot. Gulab Bai succumbed to her injuries. Complainant Hari Singh lodged the report in the police station (Ex.P/32), on the basis of which police registered Crime No. 152/95 for the offences under Sections 147, 148 and 302/149 of "the IPC", against five persons. On preparation of inquest report (Ex.P/21), the dead body was sent for postmortem examination and the same was conducted by P.W.-4 Dr. B.K. Gupta. The postmortem report is Ex.P/14. Accused persons were arrested and on their disclosure statements, weapons were seized. Investigating officer recorded the statements of the witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge sheet against Appellants. 3. Appellants refuted the charges and pleaded their false implication on account of previous ill-will. They have examined two witness in their defence, whereas prosecution has examined, in all, 15 witnesses. Investigating officer recorded the statements of the witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge sheet against Appellants. 3. Appellants refuted the charges and pleaded their false implication on account of previous ill-will. They have examined two witness in their defence, whereas prosecution has examined, in all, 15 witnesses. Learned trial Court finding the Appellants guilty, convicted and sentenced them, as mentioned herein-above. 4. We have heard the learned Counsel for the parties and also perused the entire record carefully. It borne out from the record that conviction of the Appellants is based on the solitary testimony of P.W.-8 Hari Singh, son of deceased, who was studying in 6th class at the time of incident. His father was inside the jail and facing prosecution for murder, and in the said case Appellants had appeared as a witness against his father, as admitted by this witness in his deposition. 5. The moot question for us to decide is whether solitary testimony of child witness P.W.-8 Hari Singh, son of deceased, who was aged about 12 years at the time of incident, is rightly relied upon in the facts and circumstances of the instant case by the learned trial Court, or not? 6. It is settled legal position that for proving the case quality of witness is material and not the quantity. Section 134 of the Evidence Act is clear on this point. Supreme Court has discussed this legal position in case of Vadivelu Thevar v. State of Madras AIR 1957 SC 614 and held as under in paragraph 10: The decision of this Court in the case of Vemireddy Satyanarayan Reddy v. State of Hyderabad, 1956 SCR 247 : (S) AIR 1956 SC 379 ) (B) was also relied upon in support of the contention that in a murder case the court insists on corroboration of the testimony of a single witness. In the said reported decision of this Court, P.W. 14 has been described a dhobi boy named Gopai. He was the only person who had witnessed the murder and his testimony has been assailed on the ground that he was an accomplice. Though this Court repelled the contention that he was an accomplice, it held that this position was analogous to that of an accomplice. He was the only person who had witnessed the murder and his testimony has been assailed on the ground that he was an accomplice. Though this Court repelled the contention that he was an accomplice, it held that this position was analogous to that of an accomplice. This Court insisted on corroboration of the testimony of the single witness not on the ground that this was the only evidence on which the conviction could be based on the ground that though he was not an accomplice, his evidence was analogous to that of an accomplice in the peculiar circumstances of that case as would be clear from the following observations at p. 252 (of SCR) : (at p.381 of AIR): ...Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth. Such corroboration need not, however, on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice though not exactly the same. It is not necessary specifically to notice the other decisions of the different High Courts in Indian in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established; (1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established; (1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. (3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. 7. Applying the aforementioned test, the solitary eyewitness, who was 12 years old at the time of incident, and his statement regarding causing of injuries to deceased by sharp edged weapon i.e. Farsi, is contrary to the medical evidence; wherein Dr. Gupta (P.W.-4) did not find even a single injury caused by hard and sharp object. Therefore, testimony of this witness is not corroborated by the medical evidence on material particulars, specially when the witness has said that the accused persons were having Farsis and caused several injuries to his mother. 8. The First Information Report (Ex.P/32) was recorded on the next day at 7.10 p.m., on the basis of Dehati Nalishi (Ex.P/19), recorded on 8.11.1995 in the morning at 8.10 a.m. on the spot. No reasonable and plausible explanation has been given as to why in the night report was not lodged in the police station, specially when upon hearing the cry of this witness villagers had assembled on the place of incident. 9. P.W.-5 Chhitar, P.W.-7 Ram Singh, P.W.-10 Jagdish and P.W.-11 Jagannath had reached on the spot immediately after the incident in the night but to these witnesses, even by their asking, Hari Singh (P.W.-8) did not disclose the names of assailants. 9. P.W.-5 Chhitar, P.W.-7 Ram Singh, P.W.-10 Jagdish and P.W.-11 Jagannath had reached on the spot immediately after the incident in the night but to these witnesses, even by their asking, Hari Singh (P.W.-8) did not disclose the names of assailants. Chowkidar of village Amargarh named Lakshminarayan gave a report (Ex.P/20A) in police station, wherein names of the Appellants are not mentioned as perpetrator of the crime. It was the report against unknown persons and before going to police station he, villagers Ram Singh and Phool Singh had reached on the spot, thereafter went to police station at 10:00 P.M. for lodging the report. If Hari Singh (P.W.-8) had witnessed the incident and if he had disclosed the names of assailants to Chowkidar and other villagers, there is no reason for Chowkidar not to mention the names of the assailants in report (Ex.P/20A). The statement of Hari Singh (P.W.-8) that he had disclosed the names of the Appellants as author of the crime, has not been supported by independent witnesses, and Chowkidar who lodged the report, has not been examined by the prosecution. For non examination of this witness, no reason has been assigned by the prosecution, therefore, adverse inference can be drawn against the prosecution as per Provision under Section 114(g) of the Evidence Act that if this witness would have been examined in Court, he would have not supported the prosecution case, because of which prosecution had withheld him. According to solitary child, interested and inimical eyewitness (P.W.-8) Hari Singh, six persons had assaulted his mother Gulab Bai and each had caused at least 10 blows but Dr. Gupta (P.W.-4) found only four injuries on the person of deceased, which were even less than number of accused persons. 10. In view of the above, in the considered opinion of this Court, it would not be safe to place reliance on solitary testimony of Hari Singh (P.W.-8), therefore this appeal is allowed. Conviction and sentence, as passed by learned trial Court against the Appellants, are hereby set aside. Appellants are on bail; their bail and surety bonds stand discharged.