MADAN, J. - (1.) THIS criminal appeal is directed against the judgment of the Sessions Judge Sikar whereby the appellant has been convicted u/sec. 304 (II) IPC and sentenced to undergo seven years' RI with a fine of Rs. 200/- (in default, further one month's SI ).
(2.) THE prosecution case, in brief, is that on 27. 5. 99 one Pokharram lodged a written report at PS Laxmangarh (Sikar) stating therein that he was called by his daughter Santosh who is married to Shrawan S/o Ganpat because at 7 PM there was scuffle in between Shrawan Kumar & his brother Haribux, and upon this information he went to Santosh's place where it was given out by her inter-alia that on that day at about 5 PM her husband Shrawan was beaten by his elder brother Haribux by inflicting blows with iron rod `jelly' on left side of his chest resulting into his death and his dead body had been lying in the field, and that the incident of beating was seen by Mevaram, Santosh and her mother in-law (mother of deceased Shrawan & appellant Haribux ). Upon aforesaid written report, a criminal case was registered at PS Laxmangarh for offence u/sec. 302 IPC. After completion of usual investigation, challan was filed against the appellant for the aforesaid offence & after committal proceedings, the appellant was tried for offence u/s. 302 IPC. During trial the appellant was charged for aforesaid offence to which he pleaded not guilty and claimed trial. As many as fourteen witnesses were examined by the prosecution in support of its case and the appellant was examined u/s. 313 Cr. P. C. , during which he denied the prosecution allegation of committing murder of his brother (deceased) and he stated that he had gone to do his labour and so he was not present at the place of incident. He also stated that his daughter of two years age had given out that Santosh had murdered her own husband in a hot exchange during his drunken state. However, he did not adduce any evidence in defence. After hearing both the parties, the learned trial Court by impugned judgment convicted & sentenced the appellant as indicated above. Hence this appeal. I have heard the learned counsel for the parties and perused the record. Shri Biri Singh learned counsel for the appellant contended that Mevaram (PW. 1), Ganga-dhar (PW 2), Nathusingh (PW 4), Naraini (PW 6) and Harbux (PW 13) since have turned hostile but the conviction has been based only on the testimony of Santosh (PW 2) whose version was not corroborated by any of eye witnesses muchless others either recorded u/sec. 161 Cr. P. C. or during trial and therefore, the impugned judgment of conviction is perverse and not sustainable. Next contention urged by Shri Biri Singh is that once Santosh (PW 2) deposed that at the time of incident she went to Dhani of Sohani and further that she did not know as to the cause of hot exchanges between her husband and his brother, it stands established that she was not present at the place of incident during scuffle. According to Shri Biri Singh, Santosh in her court statement denied to have given out any version in her police statement wherein she stated that her husband Shrawan demanded Rs. 200/- from her, to which she told him that she had already given it to her grand mother in law and she had no money, whereupon her husband started abusing her so she went to her neighbour Sohani situated towards southern side of her field then she saw Harbux (her elder brother in law) duly armed with `jelly' coming from their hut and asked her husband as to why he abused Santosh, to which her husband rebuked by coming hurriedly with `kasia' but meanwhile Harbux threw `jelly' which caused hurt on the chest of Shrawan. Thus Shri Biri Singh contended that from the aforesaid police version of Santosh (PW 2) it is clear that Shrawan (deceased) was furious to his brother (appellant) who had only rebuked him not to abuse Santosh, and in this state of situation the appellant can be held to have acted in a right of his private defence and not that he exceeded his private defence which did not render his act as of culpable nature, because the incident had taken at a spur of moment in a sudden scuffle having no previous cause for culpable motive. Shri Biri Singh also submitted that as per evidence on record it is also established that the compromise was arrived at between the parties as to the impugned incident. Having considered the rival contentions of the parties and perused the evidence on record it is not in dispute that the impugned conviction has been recorded by the trial Court on the basis of single eye witness Santosh (PW2) w/o deceased Shrawan. It is settled law that conviction can be recorded on the basis of testimony of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing against him and then the Court will not insist on corroboration by any other eye witness. In the instant case three of the witnesses were produced but two of them turned hostile leaving the third alone and therefore in my considered view if the remaining eye witness is found to be trustworthy it becomes the duty of the court to convict the accused. My view is fortified from the decision of Apex Court in Kartik Malkhar vs. State of Bihar (1 ). Similarly though remaining eye witness Santosh (PW 2) is close relative being wife of Shrawan (deceased) but is a natural witness therefore she is not necessarily an interested witness as on facts she has fully corroborated other circumstances including the medical evidence. Santosh (PW 2) in examination-in-chief deposed that her elder brother in-law Haribux (accused) inflicted `jelly' blow to her husband resulting into his death in her presence and then went away from the place of incident. She also deposed that Haribux had also killed his own wife. She also deposed that when she reached the place of incident upon hearing hullabaloo then in the presence Haribux inflicted `jelly' blow on the person of her husband. During cross examination she deposed that though she did not know as to the cause of beating but Haribux wanted to kill her whole family; that her house is situated just near Dhani of Sohni. She denied to the suggestion put by the defence during cross examination that since she did not give money to her husband so he rushed to kill her and during which Jelli had caused hurt to him. She further denied that her husband used to drink wine and she also insisted by saying that there was no exchange of words between her and her husband.
(3.) POKHARRAM (PW 9) who is father of eye witness Santosh (PW 2) and father in-law of deceased Shrawan has proved written report (Ex/p. 14 ). He deposed that house of his daughter Santosh is situated at a distance of two Kms from his village and so he reached there within 20 minutes upon having received telephonic message; and that on the basis of information given out by his daughter, he got written report (Ex/p. 14) and lodged it in the evening itself and whereupon crime was registered vide FIR (Ex. P/15 ). He also proved site plan (Ex. P. 5) of the place of incident so also inquest report (Ex. P. 2), which were prepared in his presence and which bear his signature as motbir witness thereto. The autopsy on the body of deceased Shrawan was conducted by Dr. B. N. Jakhar (PW 14) and by post mortem report (Ex. P20), Dr. Jakhar described injuries found on the person of deceased as under:- " (1) A oval perforating wound present on the chest wall 2 cm above the left nipple. Wound admits index finger measures about 1. 5. cm in radius. On dissection blood was present below the wound. On tracing the track, the dissection of track is lateral to medially, upwards and backwards found. On further dissection perforating wound extends upto anterior walls right ventricle after perforation of corresponding tissues muscles of chest wall and pericardium. Thorax cavity is full of blood. (2) A tear of pinna of left ear extending tragus with clotted blood. " According to doctor, cause of death assigned was penetrating injury of Rt. Ventricle of heart leading to haemorrhage and death. Dr. Jakhar (PW 14) in examination-in-chief specifically deposed that the injury found on the person of deceased Shrawan could have been caused by sharp edged weapon and the injuries were ante mortem in nature and duration was opined in between 6 to 48 hours. Thus from the medical evidence discussed above it stands established beyond doubt that deceased Shrawan had died a homicidal death on the date of incident. From the material and solitary eye witness Santosh (PW2) it also stands established beyond doubt that house of Sohani is situated near the place of incident and where Santosh had gone and upon hearing commotion, she came out of Dhani of Sohani and found that her elder brother in-law Haribux (accused) came rushing with Jelly in his hand and he caused injuries by infliction of Jelly blow on the person of her husband Shrawan who then and there fell down due to infliction of Jelly. The presence of this solitary eye witness Santosh stands proved at the time of incident and it could not have been shaken by the defence during her cross examination. I do not find any infirmity or cay unusual features in her testimony from which it may be inferred that the witness is a got up witness and not a truthful person. The approach of the learned trial Judge in appreciating the evidence of the sole eye witness, Santosh (PW 2) is wholly sustainable and realistic. I do not deem it necessary to repeat the findings recorded by the trial Judge since I agree with his reasonings and findings for sustaining the impugned conviction and sentence. Merely because this sole eye witness had denied to have given out any version to the police i. e. portion marked A to B and C to D (which has been pointed out by the defence during the course of argument before this Court as well as during cross examination), her deposition made before the court cannot be thrown out of board especially when the facts stated by her (sole eye witness) substantially conform to and are consistent on material points from the facts stated earlier to the police either in FIR or case diary statements and are also consistent in all material details as well as on vital points. In my considered view, there would be no justification or any valid reason for this court to view her evidence with suspicion or cast any doubt on such evidence. As already stated, I find that the solitary eye witness is a wholly reliable witness and her evidence in itself without any further corroboration is enough to sustain the conviction of the appellant for the crime he is charged with. ;