JUDGMENT : 1. Appellant accused Jai Shanker @ Ashok preferred this appeal against judgment and order dated 4.1.2012 passed by learned Additional Sessions Judge, T.E.C.P-3, Lucknow in the case Crime No.223 of 2010, Session’s Trial No.1010 of 2010 whereby learned Additional Sessions Judge, T.E.C.P-3, Lucknow hold guilty to appellant under section 304 IPC and sentenced 10 years rigorous imprisonment with fine of Rs.5000/-, in default of payment of fine additional six months simple imprisonment. 2. For the disposal of this appeal, the relevant facts are that on 29.4.2010 at about 9.00 P.M, P.W-1 Shri Amit Gupta and his mother deceased Smt. Shanti Devi was sitting outside his house no.215/60, Subhash Marg, P.S Wazirganj in Lucknow. Appellant accused Jai Shanker @ Ashok came suddenly and catch hold the hand of mother of P.W-1 Smt. Shanti Devi and inflicted injuries on the head of Smt. Shanti Devi through brick. On the hue and cry so many persons came at the spot and apprehended the appellant at some distance from the place of incident. 3. Appellant accused was surrendered to Police Officials who were at round. After the apprehension of appellant accused, he told his name Jai Shanker @ Ashok, resident of Village Roorki, P.S Chhapla, District Rohtak Haryana. P.W-1 and the persons who came at spot were carrying to Smt. Shanti Devi for treatment to Balrampur Hospital but she succumbed to her injuries on the way. 4. The F.I.R exhibit Ka-4 was scribed by Shri Mirja Sikander Beigh who presented it at Police Station Wazirganj where case under section 304 IPC was registered against appellant. The check F.I.R is Exhibit Ka-5. The fact of registration of F.I.R was entered in the general diary of Police Station. The carbon copy of which is Exhibit Ka-6 P.W-5 Shri Arun Kumar Dubey started investigation and recorded the statement of complainant Shri Mirja Sikander Beigh and P.W -1 Shri Amit Gupta and inspected the place of incident and prepared site plan Exhibit Ka-7. P.W-5 took in possession the simple and blood stained soil from the place of incident and other incriminating materials and conducted inquest report upon the body of Smt. Shanti Devi which is Exhibit-Ka 2. Shri Arun Kumar Dubey, S.I prepared other documents for the postmortem of dead body and send dead body of Smt.Shanti Devi for postmortem. P.W-5 took in possession the simple and blood stained soil from the place of incident and other incriminating materials and conducted inquest report upon the body of Smt. Shanti Devi which is Exhibit-Ka 2. Shri Arun Kumar Dubey, S.I prepared other documents for the postmortem of dead body and send dead body of Smt.Shanti Devi for postmortem. After completing investigation, P.W-5 submitted charge sheet under section 304 I.P.C against the accused which is Exhibit-Ka -11 on record. 5. The postmortem upon the dead body of Smt. Shanti Devi was conduced by P.W-2 Dr. Adeel Ahmad who proved postmortem report which is Exhibit Ka-3 on record. As per statement of P.W-2 Dr. Adeel Ahmad, there were following four antimortem injuries on the head of dead body of Smt.Shanti Devi. 1. Lacerated wound 1.0 x 0.2 cm x skin deep over right side of face 1.0 cm lateral to right side eye brow. 2. Abraded contusion 5.0 x 3.0 cm. over right side of forehead. 3. Lacerated wound 3.0 x 1.0 cm x scalp deep over right side of head 3.0 cm behind the right ear. 4. Contusion 8.0 x 6.0 cm. Over right side of head 1.0 cm above the left ear. 6. According to P.W-2 Dr. Adeel Ahmad at the opening of the injury ecchymosis were present underneath above mentioned injuries. Fracture of right temporal bone present. Subdural haematoma present all over the brain. 7. It is further stated by the witness that the membrane of the brain, lungs were congested. Both lungs and the membrane of abdomen were congested. 8. The left chamber of the heart was empty while the right chamber was full of blood. Liver, spleen, kidneys and stomach were congested. Doctor further opined that the death of the deceased was due to coma which was caused by the antimortem injuries which were found on the head of the dead body. Injuries were caused by the hard blunt object. Postmortem on the body was conducted on 30.4.2010 at 2.00 P.M. The death of Smt. Shanti Devi was probably occurred within one day from the time of postmortem. 9. To prove the guilt of the appellant accused, prosecution examined P.W-1 Shri Amit Gupta eye witness and son of the deceased, P.W -2 Dr. Postmortem on the body was conducted on 30.4.2010 at 2.00 P.M. The death of Smt. Shanti Devi was probably occurred within one day from the time of postmortem. 9. To prove the guilt of the appellant accused, prosecution examined P.W-1 Shri Amit Gupta eye witness and son of the deceased, P.W -2 Dr. Adeel Ahmad who conducted the postmortem upon the dead body, P.W-3 Shri Mirza Sikander Beigh the complainant, P.W-4 Shri Kuwar Pal Singh writer of the check F.I.R and P.W-5 S.I Shri Arun Kumar Dubey Investigation Officer. 10. In his statement under section 313 Cr.P.C appellant accused denied the allegations and stated that prosecution adduced false evidence against him and he is an innocent person. No witness was examined by the appellant accused in his defence. 11. Heard learned Amicus Curie Shri Ankit Srivastava and learned A.G.A for State and gone through the entire evidence adduced by the prosecution very consciously and cautiously. 12. P.W-1 Shri Amit Gupta is an eye witness and the Son of Smt. Shanti Devi who died in this very offence. Shri Amit Gupta stated on oath that on that very unfortunate day, there was rostering of electricity in the night, thats why he himself, his son and his mother deceased Smt. Shanti Devi was sitting outside his house at 9.00 P.M. Suddenly, appellant accused Jai Shanker @ Ashok emerged and catch hold the hand of the deceased and tried to drag her. It was objected by the witness, where upon appellant accused inflicted two injuries on the head of Smt. Shanti Devi with brick which the appellant had in his hand. It is further stated that he himself tried to save her mother and upon the hue and cry so many persons of the vicinity and passer by interfered and apprehended the accused after chasing a few paces. 13. P.W-1 further stated that he himself and other persons were carrying to Smt.Shanti Devi for treatment to Balrampur Hospital but on the way she succumbed to her injuries and when he reached with his mother at hospital, Doctor declared her brought dead. Later on he brought back dead body of his mother at his residence and the F.I.R was lodged by Shri Mirza Sikander Beigh. 14. Later on he brought back dead body of his mother at his residence and the F.I.R was lodged by Shri Mirza Sikander Beigh. 14. P.W 1 proved documents memo of recovery of brick simple and blood stained soil Exhibit Ka-1, Inquest report Exhibit Ka-2, Clothes Material Exhibits 1 & 3 in which brick and soil was sealed, brick Exhibit 2, box. Exhibit 4 & 7 and simple soil kept in the Box, Exhibit 5 Blood stained soil, Exhibit 8 Simple soil which has been taken at the spot and the clothes and other things of deceased material exhibits 9 to 13. 15. P.W-3 Mirza Sikander Beigh lodged F.I.R. Exhibit Ka-4 pursuance of which Check F.I.R Exhibit Ka-5 was recorded in the Police Station. P.W-2 admitted in his deposition that he was not present at the spot at the time of occurrence. The facts were informed by P.W-1 Shri Amit Gupta. Accordingly, he scribed Exhibit Ka-4 and lodged F.I.R against appellant -accused. 16. P.W-4 Head Constable Shri. Kuwar Pal Singh deposed that pursuance to Exhibit Ka-4, he had recorded Check F.I.R Exhibit Ka-5 and this fact was entered in the general diary of Police Station by Constable Prem Narain Gaur, the copy of general diary is Exhibit Ka-6. 17. P.W-5 S.I Shri. Arun Kumar Dubey proved that the crime was investigated by him and he had recorded the statement of complainant P.W-3 Mirza Sikender Beigh and eye witness P.W 1 Shri. Amit Gupta and other eye witness Shri Sachin Gupta. It is further stated that the accused was apprehended by the general public and was handed over to Police Station. The mental status of the appellant accused was quite well and nothing was appeared unnatural. 18. Learned Amicus Curie submitted that the learned Additional Sessions Judge wrongly hold guilty to appellant accused relying the evidence of sole witness P.W-1 Shri Amit Gupta. The statement of P.W-1 is neither supported by any oral evidence or by medical evidence. There are so many contradictions in the statement of P.W-1 that’s why the statement of P.W-1 cannot be form base for the conviction of the appellant. 19. The statement of P.W-1 is neither supported by any oral evidence or by medical evidence. There are so many contradictions in the statement of P.W-1 that’s why the statement of P.W-1 cannot be form base for the conviction of the appellant. 19. As far as the question of contradiction, it is also submitted that P.W-1 stated in his evidence that appellant inflicted two injuries through brick whereas in postmortem report, it is reported by the Doctor who conducted autopsy that there was four injuries on the head of the deceased Smt. Shanti Devi. It is further submitted by learned Amicus Curie that P.W-1 Shri Amit Gupta narrated in his statement that at the time of occurrence, he himself with his mother deceased Smt. Shanti Devi and son was sitting outside his shop but in the F.I.R it is mentioned that the deceased was sitting outside his house near the door. 20. Learned Amicus Curie further submitted that it is also not clear from the statement of P.W-1 that when the body of Smt. Shanti Devi was brought at the house. The conduct and behaviour of P.W-1 Shri Amit Gupta is not just like a prudent man. He did not tried to save his mother. Thus the presence of P.W-1 is doubtful at the spot at the time of occurrence. 21. Learned Amicus Curie submitted that there was one eye witness named Shri Sachin Gupta was also present at the spot at the time of occurrence, but he has not been examined and no explanation was tendered by the prosecution why it has withheld examination of Shri Sachin Gupta. 22. Learned A.G.A countered the arguments of learned Amicus Curie and submitted that there is nothing wrong in holding guilty to appellant accused. 23. Learned A.G.A further submitted that there is no contradiction in the statement of P.W-1 Shri Amit Gupta and learned Additional Sessions Judge rightly relied upon the sole testimony of P.W-1 and hold guilty to the appellant accused. 24. Learned A.G.A further submitted that there is no infirmity in the statement of P.W-1 and there was no need to examine Shri Sachin Gupta who was also present at the time of occurrence because it was sheer repetition of the facts, since the statement of P.W-1 is wholly reliable that’s why there is no need to corroborate the statement of P.W-1. 25. 25. It is also submitted that the appellant accused is neither familiar nor there is any animosity with the complainant P.W-1 that’s why no question arises to falsely implicate the appellant accused in this very matter. As a whole, the statement of P.W-1 is sufficient to prove the case of the prosecution and hold guilty to the appellant accused. 26. In the light of counter submissions of learned counsels, I have examined the statement of P.W-1 Shri Amit Gupta very cautiously and consciously. P.W-1 Shri Amit Gupta is the son of the deceased Smt. Shanti Devi and is highly interested in the conviction of the appellant accused. Inspite of this I find myself unable to agree with the submission of learned Amicus Curie. 27. P.W-1 Shri Amit Gupta unerringly stated on oath that on the unfortunate day i.e on 29.4.2010 at about 9.00 P.M, there was rostering of the electricity and he himself, his mother deceased and son were sitting outside his house. At that very time, appellant accused came suddenly, caught hold the hand of his mother, tried to drag her and upon the intervention, appellant accused inflicted two injuries on the head of his mother. Due to severe injuries, the mother of PW1 deceased Smt.Shanti Devi felt on the floor. When the alarm was raised, persons of the vicinity came at spot and apprehended appellant accused. After the apprehension and upon inquiry appellant accused told his name Jai Shanker @ Ashok resident of Roorki, P.S Chhapla District Rohtak Haryana. It is also proved by this witness that the appellant accused was submitted to the jurisdiction of Police officials who were on round in the area. 28. PW-1 further narrated on oath that he was carrying his mother to hospital for treatment and she died on the way. In cross examination PW-1 supported his statement in chief. It is also narrated by PW-1 in his cross examination that he is a shop keeper which opened in the morning at about 6.00 A.M and closed in the night at about 11.00 P.M. Shop was looked into by himself and his mother. This shop is situated in the part of his house and his mother was sitting on a Bench which was kept outside his shop. This shop is situated in the part of his house and his mother was sitting on a Bench which was kept outside his shop. Witness further narrated that he tried to save his mother and raised alarm, so many person came at the spot and the appellant was caught when he tried to escape from the place of occurrence. Appellant-accused inflicted two injuries upon the head of his mother. 29. The witness PW-1 Amit Gupta proved the narration of the prosecution. There is no infirmity and no contradiction in his statement. There is not even a single iota of evidence according which it could be said that the witness was not present at the time of occurrence and he has not witnessed the incident. Learned Amicus Curie fails to notify any exaggeration or omission occurred in the statement of P.W-1. 30. After careful reading of statement of PW-1, Shri Amit Gupta, I find that he unequivocally and unerringly supported the narration presented by the prosecution. He is wholly reliable witness and relying on his statement appellant accused can be safely hold guilty. 31. Learned Amicus Curie submitted that PW-1 stated on oath that appellant accused inflicted two injuries on the head of his mother while P.W-2 Dr. Shri Adeel Ahmad stated that there were four injuries on the head of the deceased Smt. Shanti Devi. This shows that PW-1 was not present at the time of occurrence. I find myself unable to accept the argument advanced by learned Amicus Curie because it is the statement of P.W-1 that when he tired to intervene till then appellant accused inflicted two injuries on the head of the deceased Smt. Shanti Devi Gupta. Since PW-1 was saving his mother that’s why it can not be expected from a son or any other person that he will count the attempt of causing attack or injury, but he certainly would like first to save victim from the clutches of the ass assailment. When PW-1 tried to save his mother, it is not possible for him to count or see the further attack of appellant accused thats why it will be a futile exercise to discuss that PW-1 Shri Amit Gupta fails to count the attempts or attack thats why he was not present at the spot. 32. When PW-1 tried to save his mother, it is not possible for him to count or see the further attack of appellant accused thats why it will be a futile exercise to discuss that PW-1 Shri Amit Gupta fails to count the attempts or attack thats why he was not present at the spot. 32. Another submissions of Learned Amicus Curie is that in the F.I.R, it is mentioned that the deceased was sitting outside the door of her house and PW-1 narrated that she was sitting outside the shop. This also indicate that PW-1 Amit Gupta was not present at the spot at the time of occurrence. 33. I afraid to accept the submissions of the learned Amicus Curie. P.W-1 stated on oath that the shop is the part of his house and his mother was sitting outside the shop. Thus there is no contradiction. 34. Learned Amicus Curie further submitted that PW-1 Shri Amit Gupta stated in his examination in chief that when he reached at hospital, Doctor declared Smt.Shanti Devi brought dead. Later on he brought dead body of his mother at his house and later on he had gone to lodge F.I.R at Police Station and the F.I.R was lodged at about 10.00 P.M, whereas in cross examination witness stated that the dead body of his mother was brought at about 2.00 to 3.00 P.M. Thus the statement of P.W-1 is not credence worthy. 35. I am not in agreement with the argument of learned Amicus Curie. The statement of P.W-1 Shri Amit Gupta is quite vivid on this point. On the date of incident i.e 29.4.2010 when Doctor declared dead to Smt. Shanti Devi, he brought back dead body at his residence. It is stated by the witness that later on 30.4.2010, the inquest report was prepared by P.W-5 S.I and the body was sent for autopsy. This fact is supported by P.W-5 Investigator. As per statement of P.W-2 Dr.Adeel Ahmad, he had committed autopsy on 30.4.2010 at about 2.00 P.M. Thus in the conjoint reading of the statement of P.W-1 & 2, it is clear that on 30.4.2010, after the postmortem of the dead body, the body was again brought at the residence of P.W-1. Thus the argument of learned Amicus Curie is misconceived and hardly it can be accepted. 36. Thus the argument of learned Amicus Curie is misconceived and hardly it can be accepted. 36. Learned Amicus Curie referred a case 2015 (1) SCC (Crl) 293 Denny Bora versus State of Assam in which Hon’ble Apex Court in paragraphs 9, 10 & 12 enunciated law that if the evidence of a witness is reliable and trustworthy then there is no necessity of corroboration. Non examination of a material witness does not fatal if such non examination does not lead to infirmity in prosecution case. It is also opened by the Hon’ble Apex Court that the evidence of single witness is sufficient for the conviction of an accused person, if the lone witness is wholly reliable. There is no legal impediment to base the conviction on a wholly trustworthy and reliable lone witness. 37. I have gone through the judgment of the Hon’ble Apex Court and respectfully I may say that the appellant cannot get any type of assistance from the aforesaid judgment. 38. PW-1 Shri Amit Gupta stated on oath that at the time of occurrence he and his mother with his son was present at the spot and none other. Thus, the presence of Shri Sachin Gupta has not proved by P.W-1. Moreover, P.W-1 supported the version of prosecution and there is no need to examine other witness on the same facts which have already been proved by a witness. As I have hold earlier that the evidence of P.W-1 is wholly reliable that’s why there is no need to examine Shri Sachin Gupta to repeat the same facts which had already been proved by PW-1. 39. Section 134 of Evidence Act does not require the particular number of witnesses to prove any fact. It is well known principle of law that reliance can be based on the solitary statement of a witness if the Court comes to the conclusion that the said statement is the true and correct version. The courts are concerned with the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. 40. The courts are concerned with the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. 40. Learned Amicus Curie referred another judgment of Hon’ble Apex Court (1993) 3 SCC 282 Anil Phukan versus State of Assam in which Hon’ble Apex Court enunciated law in paragraph-4 that Shri Ajay P.W-3 is a nephew of the deceased and was present with the deceased. Thus he is an interested witness but due to relationship with the deceased, the testimony of P.W-3 cannot be discarded if it is otherwise found reliable and trustworthy. In the normal course a close relation would be the last person to spare a real assailant of his dear relation and implicate a false person. 41. In the light of above law enunciated by the Hon’ble Apex Court, I have already hold that there was no enmity between the complainant and the appellant accused. Appellant was apprehended at the spot by the complainant with the assistance of the people of vicinity. Appellants and complainant were not familiar with each other, thats why the false implication of the appellant is not possible in the facts and circumstances of the case. 42. Here the P.W-1 Shri Amit Gupta fully supported the case of the prosecution and there is nothing or even an iota of evidence which rendered the evidence of the witness incredible for the conviction of the appellant accused. 43. Learned Amicus Curie submitted that the P.W-3 complainant Shri Mirja Sikander Beigh has not supported the prosecution version, thats why the F.I.R Exhibit ka-4 is not reliable and on this score only appellant accused is entitled for acquittal. 44. I am not in agreement with the argument of the learned Amicus Curie because P.W 1 and P.W 3 stated in their statements that complainant P.W 3 Shri Mirja Sikander Beigh was not present at the spot at the time of occurence. It is further stated by PW 3 that the facts were informed by P.W-1 Shri Amit Gupta and he had scribed F.I.R Exhibit Ka-4. It is further stated by PW 3 that the facts were informed by P.W-1 Shri Amit Gupta and he had scribed F.I.R Exhibit Ka-4. Thus, in the light of the statement of P.W 1 & 3, it is clear that the F.I.R was scribed by P.W 3 on the oral information received from P.W 1 and it was neither dictated nor signed by P.W-1. Thus the F.I.R was prepared by a person who was not present at the spot. In these circumstances, if there is any infirmity in the F.I.R that could not lead the acquittal of the appellant accused. 45. Learned Amicus Curie referred next case 2009 2 BBCJ 414 State of U.P versus Sukhpal Singh & others and submitted that the accused was neither familiar with witness P.W-1 nor he is resident of Mohalla, thats why it was the duty of the prosecution to identify the accused from the witness. Prosecution failed to arrange identification parade for ascertaining the identity of the appellant accused. In the circumstances, appellant is entitled to be acquitted. 46. I have gone through the verdict of the Hon’ble Apex Court and find that the appellant accused is not entitled to get any advantage from the above mentioned case law in the facts and circumstances of the case. The facts of the case before the Hon’ble Apex Court were totally different from the facts of the case pending before this Court. In paragraph 25, the Hon’ble Apex Court held as: “In the instant case, all the witnesses have stated that had otherwise known the accused persons and they were not strangers to them. In the moonlight and lantern light they clearly identified them. Therefore, the test identification parade was really not necessary in this case. Whether test identification parade is necessary or not would depend on the facts and circumstances of each case. This court in a series of cases has taken the view that the test identification parade under section 9 of the Evidence Act is to test the veracity of the witness and his capacity to identify the unknown persons whom the witness must have seen only once but in the instant case the witnesses were otherwise know to accused persons, therefore, the test identification parade has no great relevance in the facts and circumstances of this case.” 47. In the case in hand, it is true that appellant accused was neither familiar with P.W-1 or other prosecution witness and nor the resident of Mohalla but he was apprehended by common men at the place of occurrence and was seen by all these persons who were present at the spot at the time of occurrence. Then in these facts & circumstances, the identification of the accused was not necessary and proper. 48. In view of above discussions, I find no merit in the appeal and infirmity in the judgment of learned Additional Sessions Judge, Lucknow. The appeal is liable to be dismissed. 49. Consequently, the appeal is dismissed. 50. Let this judgment be notified to learned Additional Sessions Judge, Lucknow for compliance. Learned Additional Sessions Judge, Lucknow shall submit report of compliance within one and half month.