JUDGMENT : SONIA GOKANI, J. 1. The case of prosecution brief of details is as under: 1.1. The appellant was a delivery boy of Gas Bottles working with Padmavati Gas agency. He was assigned the task of delivering gas bottles in the area of Chotrafali, Ta. : Halvad. It is the case of prosecution that a week before the incident, he called up the complainant-lady, who was wife of the deceased and the first informant. When she complained to her husband (since deceased) Shri Jagdishsinh, he met personally the appellant two days prior to the incident and warned him not to call his wife on the mobile phone and if he so does it, they will be lodging a Police complaint and being annoyed of this warning from the husband of the first informant, on 16-9-2010, when Jagdishsinh Dharmendrasinh and his wife-first informant Dhirajba and his five year son Kuldip were at his residence, at that time, he entered into the house with a long knife in his hand and inflicted indiscriminately blows of knife on the person of the deceased. First informant-Dhirajba Jagdishsinh raised hue and cry, and therefore, the appellant ran away jumping over the left side of the compound wall. Jagdishsinh sustained serious injuries and his brother had reached at the place, other neighbourers gathered and he was removed to the Hospital, where he was declared dead by the Hospital authorities. 1.2. Wife of the deceased Jagdishsinh, Dhirajba lodged a complaint, being C.R. No. 1-127 of 2010 with Halvad Police Station, District : Surendranagar on 17-9-2010 at 2-30 in the night for an incident of 16-9-2010, which occurred at 10-30 p.m. After due investigation, the prosecution filed a charge-sheet on 24-11-2010 against the present appellant for an offence punishable under Secs. 302 and 449 of the Indian Penal Code. 1.3. The case was committed to the Sessions Court under Sec. 209 of the Code of Criminal Procedure and was numbered as Sessions Case No. 22 of 2011 and the same was tried in the Court of the learned Additional Sessions Judge, Dhangadhra. 1.4. The prosecution examined, in support of its case, in all 19 witnesses and also produced, documentary evidence to substantiate the charge. The details thereof are as under: Prosecution Witnesses: Sr. No. Name of witness Exh. 1.4. The prosecution examined, in support of its case, in all 19 witnesses and also produced, documentary evidence to substantiate the charge. The details thereof are as under: Prosecution Witnesses: Sr. No. Name of witness Exh. 1 Panch-Kanjibhai @ Kano Bhupatbhai Rathod 26 2 Panch-Prabhubhai Bachubhai Chauhan 28 3 Panch-Maheshbhai Karsanbhai Sindhav 36 4 Panch-Ketanbhai Harjibhai Patel 38 5 Panch-Vikram Rameshbhai Dhamecha 40 6 Witness-Dr. Harshadbhai Pravinbhai Maheshwari 44 7 Complainant-Dhirajba Jagdishsingh Zala 55 8 Witness-Hardevsingh Dharmendrasingh Zala 57 9 Witness-Ramnikba Mahendrasingh Zala 58 10 Witness-Mahendrabhai Najibhai Solanki 59 11 Witness-Manishaben Hardevsingh Zala 60 12 Witness-Chhaganbhai Devjibhai Patel 61 13 Witness-Jayeshbhai Babubhai Sindhav 62 14 Witness-Devabhai Laljibhai 63 15 Witness-Vinodbhai Popatbhai 64 16 Witness-Head Constable Bapalal Vajubha Zala 65 17 Witness-Dhiren Navinchandra Shah, Circle Officer 66 18 Witness-Yogeshbhai Rasiklal Joshi-PSO 70 19 Witness-Durlabh Jivabhai Sosa, I.O.- PSI 73 Documentary Evidence : Sr. No. Particular Exh. 1 Panchnama of place of incident 27 2 Panchnama of seizure of clothes worn by the complainant. 29 3 Inquest panchnama under Section 174 of CrPC 31 4 Panchnama of seizure of clothes from the person of the deceased. 32 5 Arrest panchnama of the accused 37 6 Discovery panchnama of muddamal 41 7 Police yadi written for performing the post mortem 45 8 Inquest police report form 46 9 Post Mortem note of the deceased 47 10 OPD case paper of the decesed 50 11 Original complaint of the incident with FIR 56 12 Yadi made to the Circle Officer for preparing the map of local place 67 13 Map of the local place with report 68-69 14 Zerox copies of the station diary entry no.4 and entry no.20 71-72 15 Letter written by the PSO on the basis of the station diary entry no. 20/2010 74 16 Letter written for taking cognizance of complaint. 75 17 Abstract of station diary Entry no. 20/2010 76 18 Licence of Padmavati Gas Agency, Halvad 78 19 Letter of intent of Bharat Petroleum 79 20 Yadi written to the doctor for collecting blood sample of the accused 80 21 Letter written to the Executive Magistrate for filling inquest of the muddamal 81 22 Forwarding letter regarding sending muddamal to the Forensic Science Laboratory (FSL). 82 23 Receipt issued by FSL about receiving muddamal 83 24 Serological Report 84 1.5. 82 23 Receipt issued by FSL about receiving muddamal 83 24 Serological Report 84 1.5. After hearing both the sides and after recording of further statement under Sec. 313 of the Code of Criminal Procedure, whereby the appellant/original accused had denied the charges and also refused the entire evidence. The Court convicted the present appellant under Sec. 302 and so also under Sec. 449 of the Indian Penal Code, by awarding a sentence of life imprisonment and to pay fine of Rs. 10,000/-, under each offence and directed both the sentences to run concurrently vide judgment and order dated 24-5-2013, which is impugned in this Appeal. 1.6. The appellant, aggrieved by the said judgment and order, has preferred this Appeal under Sec. 374 of the Code of Criminal Procedure. Learned Advocate Mr. P.V. Patadiya appearing through Legal Aid Forum on behalf of the appellant has made submissions and urged this Court that the learned Sessions Judge has not appreciated the documentary evidence adduced on record and has delivered the judgment, which is untenable. He also failed to appreciate and consider that the solitary eye-witness being wife of the deceased, cannot be said to be an independent witness in this case, he has further submitted that she has a strong motive to implicate the present appellant in the crime in question. She has admitted in her deposition that she was receiving phone-calls of one Jitendra Lunar of Halvad on the mobile phone. It is further argued that as her extra-marital relation might have come to the knowledge of her husband, she has chosen to end his life, and thereby, she has falsely implicated the appellant in a grave crime. She is a solitary shaky witness and should not be believed at all. It is further the case that if blows given by the appellant could have been so grave and indiscriminate, there must have been some blood-stains found on his shirt. In Serological examination and report of F.S.L., the blood-marks are absent. The case of the prosecution is full of doubts, and therefore, it would be unsafe to sustain conviction under Sec. 302 of the Indian Penal Code, so far as the appellant is concerned. He has urged that he being a person hailing from poor economic strata, has been implicated by investigating agency falsely in a grave crime as a scapegoat. The case of the prosecution is full of doubts, and therefore, it would be unsafe to sustain conviction under Sec. 302 of the Indian Penal Code, so far as the appellant is concerned. He has urged that he being a person hailing from poor economic strata, has been implicated by investigating agency falsely in a grave crime as a scapegoat. It is the say of the learned Advocate that C.D.R. of Jitendra Luhar of Halvad were sought to be brought on record and the witness of prosecution had been suggested certain specific defence which were not answered by her and thus adverse inference is required to be drawn by the Court. 2. Per contra, learned A.P.P. Mr. K.L. Pandya for the State has strongly defended the judgment and order of conviction. According to him, it is an open and shut case which hardly requires any further discussion. He argued that though the wife is a solitary eye-witness, she being a witness of sterling quality, her evidence cannot be called in question. It is the further say of the learned A.P.P. that medical evidence as well as F.S.L. report further corroborate the version of eye-witness. It is further say that entire defence is very sham and shaky. 3. Having heard both the sides and also on exclusively examining the record of the Court below, at the outset, it is required to be noted that Sec. 134 of the Evidence Act, 1872 speaks of number of witnesses to be examined by the trial Court for the proof of any fact and states that reliance can be based on the solitary statement of a witness, if the Court comes to a conclusion that the said statement is true and correct. In other words, no particular number of witnesses shall in any case be required as a proof of any fact, as provided under the said provision being Sec. 134 of the Evidence Act. The Apex Court in a well known judgment rendered in case of Lallu Manjhi v. State of Jharkhand, reported in AIR 2003 SC 854 , divides the witnesses into three categories, which can be classified as (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. The Apex Court held that in first two categories, there may be no difficulty in accepting or discarding the testimony of a single witness. The Apex Court held that in first two categories, there may be no difficulty in accepting or discarding the testimony of a single witness. However, difficulty arises in the third category of cases, where the Court has to circumspect and has to look for corroboration in material particulars, direct or circumstantial, before acting upon testimony of a single witness. 4. In this premise and in this backdrop of law, the testimony of P.W. 7-solitary eye-witness Dhirajba, wife of the deceased Shri Jagdishsinh deserves to be considered. She got married with Jagdishsinh 8 years' before and one son is begotten out of the said marriage. They were residing in a rental house at Halvad, at the time of incident. In her deposition, she has stated that at about 10-30 O'clock, she was watching television with her husband and son, and all of a sudden, the appellant came with a huge knife and gave blows of knife first on the neck of her husband and then indiscriminately on his person. She, therefore, was terrified and made hue and cry, and thereafter, her brother in law residing in neighbourhood rushed along with his friend and others, and her husband was removed to Halvad Government Hospital. 4.1. She also further submitted that between her and her husband, there was only one mobile phone, which sometimes remained with her husband and sometimes she retained the same with her. On this phone, the appellant, who was a delivery-man of the gas bottles called up a couple of times, and therefore, she had intimated her husband and that proved to be a motive for the appellant to kill her husband, as he was scolded by him. 4.2. In the F.I.R. lodged by the first informant-Dhirajba, she has given very version. She has further stated that from the southern side of the compound wall, the accused jumped to flee and this version is consistent with the version given by her orally. 4.3. In her cross-examination, it can be seen that she had been questioned and suggested about one Jitendra Luhar of Halvad. She denied that she has any relation with Jitendra Luhar. She stated that some of the messages received from him were in English language, and therefore, she was not aware, as she does not know English language. She also denied the suggestion that Police had inquired and investigated in this regard from her. 4.4. She denied that she has any relation with Jitendra Luhar. She stated that some of the messages received from him were in English language, and therefore, she was not aware, as she does not know English language. She also denied the suggestion that Police had inquired and investigated in this regard from her. 4.4. Her husband was working as a Guard. They had a house which was surrounded by a compound wall and there was a summer season, and hence, they had kept front door open, it was only about 10-30 O'clock in the night. 5. Defence that has been taken by the present appellant is that her husband had seen her in a compromising condition with an unknown person, and therefore, both of them had a serious dispute, due to which, she gave knife blows to her husband. A suggestion was also put to her that Jitendra Luhar of Halvad was the person who attempted to be saved by her. 6. It can be noticed from her deposition as well as First Information Report given by her that she is a witness, who is a close relative of the deceased and he being her husband, she was with him when the incident took place; more particularly, considering the night hours. It is quite common for a family to be together and watch television. She shared her mobile phone with her husband, and her husband, who otherwise was going for work as a Guard, it is also quite natural for any husband to get upset about the delivery-man of gas agency to call up his wife, and therefore, it is also not unusual for him to warn him of possible consequence of police complaint. A categorical version is given as the said incident took place 2 days prior to the offence in question. 7. In the cross-examination of Investigating Officer also, a particular question has been put to him that an additional statement of this witness has been recorded, to which he has agreed and also stated of her having received calls of Jitendra Luhar of Halvad. However, the Court must also at this stage note that nothing comes beyond this. 7. In the cross-examination of Investigating Officer also, a particular question has been put to him that an additional statement of this witness has been recorded, to which he has agreed and also stated of her having received calls of Jitendra Luhar of Halvad. However, the Court must also at this stage note that nothing comes beyond this. Merely giving the name of one Jitendra Luhar is neither here nor there, particularly when the husband and wife have shared mobile phone and without even giving any further details, and his being a person, who couple of times have called and sent messages in absence of the husband, who is no more alive, it does not in any manner become a defence worth taking note of. Not only that, it would be required by the defence to dislodge positive proof even with preponderance of probabilities when the prosecution has proved its case beyond reasonable doubt pointing clearly to the complicity of the accused in the crime in question. The Court notices that the complainant is falling in a category of witnesses which has been said to be wholly reliable and there is nothing to preclude this Court to place reliance on her evidence and such witness, even if giving an evidence as solitary witness and even without there being corroboration to support the testimony of this single witness, she emerges as reliable and trustworthy witness. It is the case of the prosecution that incident was happened within the four walls of the house where only three persons were present-deceased, this witness who is the first informant and their five year old son. And, who else can be expected to be of their place unless, some friends or relatives have dropped by incidentally. In the discussion that will follow some of the witnesses who have immediately reached at the place and some of the neighboured, who had seen someone fleeing away from the place of incident, can be said to have lent further corroboration to the oral evidence of this witness. 8. Apt it would be to refer to the deposition of mother of the deceased-Ramnikba Dharmendrasinh (P.W. No. 9). She was the step-mother of deceased and was residing in the neighbourhood, On hearing the shouts, she immediately reached the place of incident, P.W. 7 and grand-son Kuldipsinh were present. She had found P.W. 7 in a miserable state. 9. 8. Apt it would be to refer to the deposition of mother of the deceased-Ramnikba Dharmendrasinh (P.W. No. 9). She was the step-mother of deceased and was residing in the neighbourhood, On hearing the shouts, she immediately reached the place of incident, P.W. 7 and grand-son Kuldipsinh were present. She had found P.W. 7 in a miserable state. 9. Likewise, Hardevsinh Dharmendrasinh Zala (P.W. 8), who also is residing in the neighbourhood has stated that at around 10-30 O'clock, when he was with his wife and daughter at his home, at that time, Jayesh @ Girnari-his friend had rushed to his place and informed him that his brother was bleeding, and therefore, he rushed with his friend Suresh and Mahendra and found his brother in a severe blood-stained condition. He had sustained various injuries and wife of his brother informed him that the present appellant had inflicted injuries and then he had run away. She also stated that when he was calling upon her, on her phone number and as his deceased brother scolded him, that become the motive for this crime. 10. Mahendrabhai Nanjibhai Solanki (P.W. 10) also residing in the neighbourhood had reached at the place, after hearing the shouts. He and his friend Suresh Rathod were sitting in the street and found that P.W. 7 raising hue and cry and they ran towards the place of Jagdishsinh and found him in blood-stained condition. He denied the suggestion that his sister-in-law confirmed about appellant having given knife blows. Manishaben Hardevsinh Zala (P.W. 11), wife of P.W. 8, has deposed before the Court along the very line. 11. Apt would be to refer to the deposition of P.W. 12-Chhaganbhai Devjibhai Patel (Lakhani), who was residing in neighbourhood, who had seen one person running from the place of Jagdishsinh, who had jumped the compound wall, which was the left side of house of the deceased, however, he could not recognize who he was. At the scene, Jagdishsinh was lying in blood-pool on seeing from his terrace. 12. Jayesh Babulal Sindhav-P.W. 13 was also sitting in the very street and when he heard hue and cry, had rushed and also heard from the neighbour immediately that Altafbhai Batalawala gave knife blow. 13. At the scene, Jagdishsinh was lying in blood-pool on seeing from his terrace. 12. Jayesh Babulal Sindhav-P.W. 13 was also sitting in the very street and when he heard hue and cry, had rushed and also heard from the neighbour immediately that Altafbhai Batalawala gave knife blow. 13. Vinodbhai Popatbhai P.W. 15 is also working as a delivery man of gas cylinder in the very company wherein the appellant was working i.e., at the present Padmavati Gas Agency which is a gas agency of Bharat Gas Limited. He identified the appellant and had also categorically stated that his area of delivery was Chotrafali Halvad, where the house of the deceased Jagdishsingh is situated. 14. Thus, not only from the version of P.W. 7, who is the solitary eye-witness, but the evidence of all those who are residing in the neighbourhood and who reached immediately at the place of offence, if is looked at closely, one aspect which becomes clear is the place of incident and the details given by the solitary eye-witness get corroborated from these witnesses. Moreover, it is also apparently clear that soon after the incident, she had conveyed to most of them who rushed to the place of incident that the appellant had committed the crime with a knife in his hand and deceased Jagdishsinh was seen by them all lying in blood-stained condition with various injuries on the person of his body. He also had been removed to the Hospital. Persons in neighbourhood had seen someone jumping the compound wall and fleeing away from the place, however, due to night hours, the identity of that person could not be revealed to establish of he being the present appellant. 15. Discovery panchnama shall need a reference at this stage, which is of vital importance. The appellant, after his arrest on 8-9-2010 in presence of the panch witnesses in the Police Station, shown his willingness to discover knife which was used. They were taken to the Railway Station and from the bushes, he had taken out the knife, which was blood-stained. The panch witness P.W. 5-Vikram Rameshbhai Dhamecha has deposed in total support of discovery panchnama. 15.1. For application of Sec. 27 of the Evidence Act, statement is required to be split into the compartments, to separate the admissible portion. The Apex Court in case of Mohd. The panch witness P.W. 5-Vikram Rameshbhai Dhamecha has deposed in total support of discovery panchnama. 15.1. For application of Sec. 27 of the Evidence Act, statement is required to be split into the compartments, to separate the admissible portion. The Apex Court in case of Mohd. Inayatullah v. State of Maharashtra, reported in AIR 1976 SC 483 , has held that only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. This provision permits the derivative use of custodial statements in the ordinary course of events. This provision provides that when any fact is deposed to as discovery in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 16. Here, the witness has stated that the knife was seized at the time of discovery and the accused stated at that time that this was the weapon he used. Even without taking into account the word used at the time of discovery that this was the weapon used in the commission of offence, his earlier version at the time of initiation of panchnama and the act of discovery shall be admissible in evidence. 17. Coupled with this, there is an arrest panchnama of the appellant, wherein, the panch witness has also supported the said panchnama and that witness P.W. 3-Maheshbhai Karsanbhai Sindhav has identified the appellant and also stated that he was wearing a white and blue colour checks shirt and black coloured jeans. Other panch witness Ketanbhai Harjibhai Patel has not been examined. 18. Thus, the clothes of the accused have also been recovered by the police and panch witness of the discovery panchnama supports the fact that clothes were recovered. 19. These clothes of the accused along with knife which had been seized, were sent to F.S.L. along with clothes of the deceased and his blood sample, after collecting the samples by the Doctor, who performed the post-mortem. It would be noticed that the report of F.S.L. confirms the blood group "A", as the blood group of deceased Jagdishsinh, although blood group of sample K2-Pent remained undecided and knife contained the blood group "A". It would be noticed that the report of F.S.L. confirms the blood group "A", as the blood group of deceased Jagdishsinh, although blood group of sample K2-Pent remained undecided and knife contained the blood group "A". This blood group was also found from the pillow covers and blanket, bed-sheets etc. recovered from the place of offence under the cotton gauze and control cotton gauze. The gown, petticoat of P.W. 7-wife of the deceased and the clothes of the deceased himself had contained blood group "A". It is to be noted that blood group of present appellant is the blood group of "B". 20. Along with this medical evidence, if we look at the testimony of P.W. 6-Dr. Harshad Pravinbhai Maheshwari, he has stated that deceased was brought to the Hospital on 17-9-2010 for the purpose of carrying out postmortem of his body. He started post-mortem with another Dr. K.M. Panchal and found various injuries on the person of the deceased. Total 8 injuries have been sustained, which are required to be reproduced hereunder: 1. Incised wound below chin at midline, horizontal in direction -Sharp edge celitical in shape, Lt. angle is acute - 2" x 1" x 0.5" subcutaneous deep. 2. Stab wound on Rt. Neck below mandible upto supraclavicular region - 7" x 2" x 1.5" up to muscle deep. - muscle vessels are cutting seen through it. 3. Incised wound over Lt. chest 2" away from midline 3" down from left nipple. - 1.5" x 1" x 0.5" oblique in direction upto muscle longer lower angle is acute. - sharp edge with spindle shape 4. Incised wound over Rt. Hypoendium 3" away from midline 6" down from the right nipple. - spindle in shape, oblique in direction, clear edge, lower angle to acute - 2" x 1" x 1.5" upto muscle layer - muscle are seen through it. 5. Incised wound over Rt. facscer 3" down from Rt. Elbow joint - 2" x 0.5" x 0.5" oblique in direction upper angle is acute - clear edge, spindle in shape 6. Incised wound over Lt. thigh on medially 5.5" away from Lt. Knee joint 1" x 0.5" x 0.5" oblique in direction, upper and acute angle - clear edge, muscles are seen through it. 7. Stab wound over Lt. thigh postercially 2.5" above the Lf. Incised wound over Lt. thigh on medially 5.5" away from Lt. Knee joint 1" x 0.5" x 0.5" oblique in direction, upper and acute angle - clear edge, muscles are seen through it. 7. Stab wound over Lt. thigh postercially 2.5" above the Lf. Knee joint 3.25" x 1" x 1" upto muscle deep, oblique in direction in which lower and acute angle, clean edge, spindle in shape muscle are seen through it 8. Stab wound on Lt. Leg 6.25" down from Lt. Knee joint - 6.25" x 2" x 2" obliquely in direction upto deep muscle -sharp edge, muscle tenders and bone seen through it. 21. All of them were ante-mortem in nature. Due to haemorrhage shock, due to cutting of large vessels, cardio-respiratory arrest had happened. This witness, in his examination-in-chief had confirmed that the injuries sustained on the person of the deceased were sufficient to cause death. Injury No. 2 on the person of the deceased was sufficient, according to him, to cause death in the ordinary course of nature. However, a stab wound on right neck below mandible upto supraclovicular region, which was 4" x 2" x 1.5" upto muscle deep, whereas muscle vessels was cut they could be seen through it. However, according to him, other associated injuries also, have resulted into his death. 22. On considering the muddamal knife, he has stated that edge of external injuries Nos. 1, 3 and 8 had clean cut and these injuries can be also possible with a knife which had been used at the instance of the accused. This medical evidence hence also fully and completely lends support to the version of oral evidence. Even in the event of any discrepancy in medical and oral evidence, oral evidence would need to be given primacy. However, in the instant case, the medical evidence fully and totally corroborates with the oral evidence and F.S.L. report, and hence, the case of prosecution is also getting vindicated through the medical evidence. 23. We have considered thoroughly the judgment and order of the learned trial Court and can opine that the Court below committed no error at all in appreciating the evidence and in arriving at the conclusion of guilt of the accused. 23. We have considered thoroughly the judgment and order of the learned trial Court and can opine that the Court below committed no error at all in appreciating the evidence and in arriving at the conclusion of guilt of the accused. Undoubtedly, while exercising powers of appellate Court, when we examine the entire gamut of facts and evidence; oral as well as documentary, it is not in any manner creating any doubt that the prosecution succeeded in proving that this is a culpable homicide amounting to murder. None of the exceptions provided under the proviso being available to the appellant, the trial Court has rightly held the accused guilty under Sec. 302 I.P.C. and also for the offence under Sec. 449 I.P.C. Any one when commits house-trespass in order to commit an offence punishable with death, shall be punished with imprisonment for life. Considering the evidence of the prosecution, guilt of the appellant has been proved for having committed trespass in order to commit offence of murder, and therefore, holding him guilty under both the provisions, the sentence of imprisonment for life does not call for any interference. 24. With this, the present Appeal is dismissed, confirming the judgment and order of the learned Sessions Court. Out of the fine which has been paid by the appellant, let an amount of Rs. 15,000/- be paid to the wife of the deceased as compensation. Additionally, under the Victim Compensation Scheme, it shall be referred to the Chairman, District Legal Services Authority, who will examine the issue and without waiting for formality of application on the part of wife of the deceased, she be granted compensation within twelve weeks from the date of receipt of this order.