TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THESE two appeals have been preferred to challenge the judgment of conviction and order of sentence dated 14.9.2004 passed by the Court of learned Sessions Judge, Jodhpur in Sessions Case No.115/2003 by which the learned trial court convicted accused appellant Narayan Ram for committing the offence under Section 302 IPC and sentenced him to Life Imprisonment & imposed a fine of Rs.100/- in default to further undergo one month's RI. Brief facts of the case as stated by the prosecution are that on 18.5.2003, complainant Budha Ram s/o Narayan Ram submitted a written report Ex.P/4 stating therein that he has six brothers. He and his brother Bhanwar Lal are residing separately from their mother and brothers. His Brothers Bhanwar Lal, Lichhu and Bhoma Ram were at Jodhpur for doing their job there. On 17.5.2003, in the evening his mother Lalo Devi, his father Narayan Ram (accused), his elder brother's wife Veera and younger brother's wife Hawa and his two younger brothers were sleeping in the courtyard of the house. The complainant was in his house which was near to the house of his father and mother. In the night at about 12:00 PM, he heard voice and weeping sound of the ladies from his father's house, then he ran towards his father's house and found his father inflicting injury on the neck of his mother. He and his elder's brother wife intervened and shouted than his father with the axe came out from the house. When the complainant looked towards his mother, he found that there was a serious injury on the neck of his mother and blood was oozing out. Hearing the voices, Gorakha Ram, Bhera Ram and Ummeda Ram came running and tried to take care of his mother but she died. On this written report, criminal case No.39/2003 was registered for committing of offence punishable under Section 302 IPC and investigation was conducted. During investigation, the site was inspected, sample soils were taken and accused was arrested and weapon of offence axe was recovered from the accused on his information. Clothes, soil and weapon of offence were sent to FSL for report. Victim's post mortem was conducted and report was obtained. After investigation, challan was filed against the accused appellant where he was charged for offence punishable under Section 302 IPC. The appellant denied the charges and sought trial. During trial, the prosecution examined as many as 16 witnesses and 18 documents were exhibited. The statement of accused appellant was recorded under Section 313 Cr.P.C. wherein the accused stated that the witnesses who were his relative gave false statement because of the pressure of other villagers as the villagers wanted that his land may be given to his sons and in that quarrel, his wife, deceased Lalo Devi, used foul language against the villagers upon which the villagers threatened that she don't want to live. On the night of date of incident, he was sleeping in Rewada (place where the cattle are kept) and hearing the voices from his house, he went to his house where he found number of persons already standing there. He asked who killed his wife upon which none of his son gave any reply. In anger, he started quarreling, then his sons caught him and tied him and put him in the hut. From there, the police took him to the police station and his wife victim was taken to the hospital. However, he did not produce any evidence in defence. After hearing the arguments, the learned trial court convicted the accused appellant after relying upon the statement of his sons PW3 Budha Ram, PW8 Uttama Ram, PW10 Bhanwara Ram and on the basis of the statement of PW9 Bhera Ram and PW11 Gorakh Ram. PW12 Smt. Hawa and PW13 Veero were alleged eye witnesses but PW12 Hawa was declared hostile and the statement of PW13 was relied upon by the trial court for convicting the appellant. This fact is not in dispute that the victim Lalo Devi died because of the injury suffered by her in the night of 17-18.4.2005. Her death was due to the injury which she suffered on the neck. The injury on the neck of the victim was sufficient to cause death in the ordinary course as has been opined by PW6 Dr.PC Soni and is proved from post mortem report Ex.P/11. The injuries were anti mortem and the victim Lalo Devi died on the spot.
(3.) LEARNED counsel for the appellant submitted that the prosecution witnesses gave evidence against the appellant due to pressure of the villagers and in view of the judgment of the Hon'ble Apex Court delivered in the case of Vadivelu Thevar vs. State of Madras reported in AIR 1957 SC 614, the oral testimony may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 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. The Hon'ble Apex Court in the above case, considered the issue whether plurality of witnesses is necessary in Indian Law or not and held that the evidence has to be weighed and not counted. With the help of the above judgment, learned counsel for the appellant submitted that as per the prosecution case, there were only three witnesses present on the spot namely, PW8 Uttama Ram, PW12 Hawa and PW13 Veero and in fact, PW12 Hawa and PW13 Veero have not either supported the prosecution case or are not reliable witnesses and their presence on the spot is doubtful as these were the daughters-in-law of the appellant and could not have been sleeping in the same ground where their father-in-law and mother-in-law were sleeping. It is also submitted that none of other witnesses could have reached the spot nor PW12 and PW13 could have seen the commission of offence because of the reason that there was only one blow on the neck of the deceased and that too, incident occurred in the midnight when all were sleeping. It is also submitted that the prosecution failed to find out the motive for the crime and in fact there is no motive for eliminating of his wife by the appellant. It is also submitted that in view of the contradictions in the statements of the witnesses, their testimony deserves to be rejected. Learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 wherein the question of interested witness was examined by the Hon'ble Apex Court and it has been observed that close relative of the victim may have tendency to exaggerate or add facts and the Court should examine their evidence with great care and caution. It is submitted that if direct evidence is not believed then in view of the same judgment, the onus is on the prosecution to prove that the chain of circumstances is complete and in a case where there is possibility of two views, then the accused is entitled to benefit of doubt. Learned public prosecutor supported the judgment of the trial court and submitted that when there are trustworthy evidence and all the witnesses are family members of the accused- appellant and had no enmity with the appellant, then there is no reason to discard the evidence of these witnesses merely on the ground that they are family members of the appellant himself. It is submitted that in fact in view of relation of witnesses, it can be presumed that they will not implicate their family's elder man in false case and the witnesses will leave real culprit. It is submitted that the conduct of the appellant is also relevant who has admitted his presence on the spot and he was caught by his own sons and other family members. In these circumstances, minor contradictions in the statements of the witnesses, who are villagers, cannot be a ground to doubt their credibility. ;