S. K. SHARMA, J. - (1.) ALL the three appellants Salim @ Chammu, Tejmal and Ram Prasad were arraigned before the sessions Judge, Kota in Sessions Case No. 178/94 for having committed murder of Mohan Lal. They were found guilty, convicted and sentenced under Section 302 read with Section 34 IPC to undergo imprisonment for life and fine of Rs. 100/- in default to further suffer one week rigorous imprisonment.
(2.) BRIEF resume of the prosecution case is that Smt. Sumitra, informant (PW. 8), is the legally wedded wife of Mohan Lal (deceased ). On the day of alleged occurrence she was working as ANM at Jaykaylon Hospital, Kota. The appellant Tejmal had taken the contract of cycle stand in the aforesaid Hospital. In the night of March 5,1994 when Smt. Sumitra was on duty in her ward Ram Prasad walked in the ward to enquire into as to who was on duty. Answering to the enquiry Smt. Sumitra discerned that she was on duty. She also stated that she was the wife of Mohanlalji. At that time Ram Prasad left only to return around 10 p. m. on the same night with 3-4 persons and exhorted threats to Smt. Sumitra. Then on March 7, 1994 in the evening around 8 p. m. when Mohar Lal had gone to drop Smt. Sumitra to the Hospital for night duty he was surrounded by 8-10 persons who were armed with Sword, Iron Rod, Hockey and Sticks and was belaboured by them. The impugned assault took place near the counter in the Hall of Jaykaylon Hospital. Mohan Lal was seriously injured and was profusely bleeding. He was immediately removed to MBS Hospital by Smt. Sumitra. He passed away in the Hospital immediately after administration of First-aid. The police also reached in MBS Hospital in a short while. Smt. Sumitra handed over written report (Ex. P. 8) of the alleged incident to the police in the MBS Hospital, On the basis of which formal FIR Ex. P. 8. A was drawn. The investigation was started off by Surendra Kumar Dixit, SHO Police Station Nayapura (PW. 6 ). Site plan was drawn on the same night at the instance of Smt. Sumitra, which is Ex. P. 9. Blood was collected from the spot, which was a Hockey was also seized from the site vide Ex. P. 10. Inquest report was drawn on the next day i. e. on March 8, 1994 vide Ex. P. 5, Clothes of the deceased were seized vide Ex. P. 11. Autopsy on the dead body of Mohan Lal was conducted by Dr. R. D. Verma (PW,9 ). The appellant Ram Prasad, Tejmal and Salim were arrested on March 17, 1994 vide arrest memos Ex. P. 17, Ex. P. 18 and Ex. P. 16 respectively. On the basis of disclosure statement of appellant Ram Prasad Ex. P. 19 iron rod was seized vide Ex. P. 6. In pursuance to the information of appellant Tejmal Ex. P. 21 one sword was recovered and seized vide Ex. P. 22. Similarly appellant Salim divulged Information about throwing his Hockey at the place of occurrence vide Ex. P. 24 which was earlier seized from the site vide Ex. P. 10. Dead-body of Mohanlal was handed over to his kith and kins vide Ex. P. 7. The weapons recovered as above were blood stained and the same were sent for chemical examination to FSL. On conclusion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge, Kota. Charges under section 302 read with section 34 IPC or in the alternative section 302 read with section 149 IPC were framed. The appellants denied the charge@ and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. In the statements under Section 313 Cr. P. C. , the appellant pleaded innocence. Two witnesses were examined in defence. The learned Sessions Judge also examined Ramani K. P. (CW. 1) as a court witness. On hearing final submissions the learned trial judge convicted and sentenced the appellants as indicated hereinabove. The independent eye witnesses viz. Rajendra (PW. 1), Ram Narain (PW. 2), Vishal (PW. 3) and Prabhu Singh (PW. 7) examined by the prosecution, did not support its case and the Prosecution case hinges on the sole testimony of Smt. Sumitra (PW. 8), wife of the deceased Mohan Lal. Shri S. P. Bajwa, learned Senior Advocate vehemently contended that the evidence of Smt. Sumitra (PW. 8) is highly interested, inimical and actively partisan in character. While deposing in the trial court she has indulged in numerous material improvements upon her earlier statement given under Section 161 Cr. P. C. Otherwise also her testimony suffers of material contradictions at every juncture. Her testimony can by no stretch of imagination be placed in the category of "wholly reliable evidence". She is not a witness of sterling worth. It does not stand to reason that Smt. Sumitra could so flawlessly see as to who had inflicted which injury and more so with which weapon as it is very difficult nay impossible to see and know the specific role of every accused parson when 8-10 persons are belabouring a solitary victim. Learned Senior Counsel further canvassed that the learned trial court too accepted the investigation to be tainted and when integrity of the Investigation Agency is dubious, then no reliance can be placed on the material dished out by the Investigating Agency. As the prosecution completely failed to show, much less to prove that the common intention of the accused was to kill the deceased they could not have been convicted. The learned trial court has wrongly discarded the testimony of defence witnesses. Per contra Mr. Rajendra Yadav, learned PP for the State submitted that Smt. Sumitra is a truthful and natural witness and her version has to be accepted. Minor contradictions in her statement is no ground to reject the entire testimony. Supporting the impugned judgment of the trial court, learned P. P. urged that the accused were rightly convicted under section 302/34 IPC as they shared common intention to kill Mohan Lal.
(3.) BEFORE we analyse the prosecution evidence it will be useful to consider as to whether the evidence of a single witness alone is sufficient to convict the accused. Section 134 of the Indian Evidence Act, 1872 provides that no particular number of witnesses shall, in any case, be required for the proof of any fact. This general rule enshrines the well recognised maxim that "evidence has to be weighed and not counted. " The Apex Court in V. Thevar vs. State of Madras (1) indicated that it is a sound and well established rule of law that the Court' is concerned with the guilty and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories namely (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. It was indicated by their Lordships of the Apex Court that in the first category of proof, the Court should have no difficulty 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 subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. 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. Informing ourselves of these important principles, we proceed to analyse the evidence of the prosecution. According to the post mortem report Ex. P. 25 deceased Mohan Lal sustained as many as 7 injuries thus : 1. Incised wound 5x 10 cm. X crenial cavity transverse on Rt. side forehead, near hairline with soft blood clots and brain matter coming out through it. 2. Lacerated wound 7 x 1. 5 cm. x bone deep Rt. parietal region, vertical near mid line with soft clotted blood. 3 Bruise 7 x 2. cm. on the top of Lt. shoulder reddish transverse. 4. Incised wound 8x 2. 5 cm. muscle deep on the dorsum of Lt. hand over 4th & 5th meta carpel region vertical with soft clotted blood. 5. Incised wound 2 x 0. 5 cm. x muscle deep with extensive surface of Rt. arm lower 1/3 vertical. 6. Two bruises reddish 12 x 2 CM. transverse on the lower part of Rt. side back. of chest. 7. Bruise 10x 2 cm. reddish transverse on the middle of post surface of Rt. side abdomen. " The cause of death was coma brought about as the result of ante mortem injuries to skull and brain sufficient to cause death in ordinary course of nature. ;