CHOPRA, J. - (1.) THIS appeal is directed against the judgment of the learned Sessions Judge, Udaipur dated 15. 6. 88 whereby the learned Sess. Judge has acquitted accused Shanker Lal, Pappu @ Pradeep, Logar, Niranjan and Jai Singh of the offences under sections 148, 302 r/w sec. 140 and 129-B I. P. C. but he however held accused appellant Ashok guilty of the offence under section 302 IPC although he acquitted him of the offences u/ss. 148, 120-B, and 302 r/w sec. 149 I. P. C. The learned Sessions Judge has sentenced him for the offence u/sec. 302 I. P. C. to life imprisonment together with a fine of Rs. 50/-and in default to undergo two months' R. I.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are: that on the night intervening between 18th and 19. 07. 1986, Shri Shanker Lal Kumhar husband of first informant Smt. Basanti Devi was killed by accused appellant Ashok and his companions at about 10 or 10. 30 pm. in village Kavita. Deceased Shanker Lal and his wife Smt. Basanti Devi were living in a house constructed on their well. It is alleged that a tempo came at about 9. 30 or 10 p. m. THE tempo was stopped near the well of Baids and thereafter 5-6 persons alighted from that tempo and went towards village Kavita. THEy returned back at about 10. 30 p. m. and called Shanker Lal who was taking his meals at that time whereupon Shankerlal went to meet them. THEy went towards the well of Baids and thereafter Mst. Basanti Devi heard the cries of her husband Shanker Lal who went with these accused persons. She ran towards the well of Baid's and found that accused Shanker Lal and Pappu @ Pradeep were giving- a 'lalkaras' that this man should be killed and as soon as they saw her, they immediately boarded the tempo. At that time, she saw that accused Ashok was armed with a knife which was blood stained. She cried for help on which Nawa Gameti, Madhuji Khawas and Dhulji came there. After a few minutes, Dharm-narayanji came there on a Motor Cycle. THEy were informed about this incident that about six persons came in a tempo and have killed her husband Shanker Lal. Dharamnarayan went in hot pursuit of that tempo and found its number. He however could not identify these persons and thereafter he went to Police Station Nai Outpost Badgaon where at about 11. 15 p. m. he lodged a report that in tempo No. RST 8434, five to six persons came from Udaipur side and killed Shankerlal on Kavita road & thereafter they have run away in the same tempo. When this report which had been marked as Ex. P. 20, was lodged, Constable Gordhan Lal bearing No. 1536 was sent to the spot and a report was sent to the Police Station, Nai where it was registered as Rapat Roznamcha as 619 at 12. 15 am and has been marked as Ex. D. 2. On receipt of this information, SHO along with AS!, Prem Singh, Constables Pema Ram, Sangram Singh, Shiv Singh, Man Singh and Nishar Khan went in a Jeep RRY 8233 to village Kavita where it is alleged that at about 1. 30 A. M. , the statement of Smt. Basanti Devi was recorded and it was sent to the Police Station for recording the F. I. R. THE dead body of the deceased was shifted to Udaipur for post mortem. THE post mortem report has been marked as Ex. P. 2. THE Panchayat Nama Nash Ex. P. 4 was prepared. THE blood stained 'chaddi' of the deceased was taken in possession vide memo Ex. P. 5. THE accused persons were arrested. THE tempo 100, was seized on the information of accused Ashok marked as Ex. P. 7. A blood stained Knife was recovered in the presence of motbirs Dalchand and Logar which was sealed and sent for chemical analysis. THE Chemical report shows that it was blood stained. THE blood found on the smeared soil and on the 'chaddi' of the deceased was also examined After usual investigation, the case against six accused persons was challaned in the Court of Addl. M. J. M. Udaipur City North from where it was committed for trial to the Court of learned Sessions Judge who charged the accused persons with the aforesaid offences u/ss. 148, 120-B, 302 r/w sec. 149 IPC. THE accused persons did not plead guilty to the charges and claimed trial whereupon the prosecution examined as many as sixteen witnesses. THE statements of the accused persons were recorded under sec. 313 Cr. P. C. THEy examined D. W. 1 Hussaini Bhai Bohra in their defence. After hearing the parties the learned lower Court decided the case as aforesaid and hence this appeal by convicted accused Ashok. THE rest of the five accused persons who were his companions, have been acquitted. We have heard Mr. M. M. Singhvi appearing for the accused appellant and Shri H. R. Panwar appearing for the State and have carefully gone through the record of the case. It is not disputed that Shri Shankerlal has died on account of the injuries received by him. His injuries have been proved by P. W. 7 Dr. N. S. Kothari who found two major incised wounds and three incised abrasions and two other abrasions on his body. He has proved his post mortem report Exp. 2. The first injury i. e. an incised stab wound was inflicted on the left side of his chest anteriorly in the third costal space in mid clavicular line 8 cm below medieal end of left clavicle by which intercostal muscles were cut and the pluera too was cut and medical border of upper lobe of left lung was cut through and through in an area of 2 0 cm. x 0. 5 cm. The pleural cavity contained clotted blood which when measured came to about 500-550 ml. This wound has perforated pericardial space and has cut the left atrium of the heart in the size of 2 cm. x 0. 3 cm with cutting of anterior wall of root of aorta in the size of 1 cm. x 0. 3 cm. The pericardial cavity was also found full of clotted blood about 250-300 ml. This injury by itself was sufficient to cause of death. The other stab wound was inflicted on his back of the lower chest and the Doctor has opined that all injuries were cumulatively sufficient to cause death in the ordinary course of nature. It is, therefore, clear that it is a homicidal death. The only point that survives for the decision is whether the accused appellant is guilty for causing the murder of Shri Shanker Lal. Shri Shanker Lal belongs to village Kavita. He was married in village Bhuwana with Basanti Devi. Mst Basanti's father had no sons and, therefore, he gave his house to Basanti. That probably infuriated Bhanwerlal who happens to be her uncle because Shankerlal who has been committed for trial in this case is son of Shri Bhanwerlal, uncle of Mst. Basanti. It is alleged that this Shankerlal along with accused Ashok & others came to village Kavita at about 9. 30 on the night intervening between the 18th and 19. 07. 1986. They came in a tempo, alighted near the well of Baids, went to the village Kavita and came back. It is alleged that out of these six persons, Smt, Basanti recognised Shankerlal s/o Shri Bhanwarlal, Pappu @ Pradeep and Ashok Kumar. They were accompanied by three more persons. It is alleged in the F. I. R. that after they came back, they gave a call from the road to Shankerlal husband of Smt. Basanti Devi as to what he was doing? On this, Shankerlal, who was taking his meals, cleaned Lis hands and went to meet them. He then went with them towards the well of Balds and from there, Basanti Devi heard two cries of her husband which was 'hare-Hare'. On this, she ran away towards her husband and found that Shankarlal and Pappu @ Pradeep were telling their companions, Ekjks lkys dks* i. e. he should be killed. When they saw Basanti coming towards them, they immediately boarded the tempo. At that time, she saw Ashok Kumar was holding a blood stained knife in his hand. Mst. Basanti Devi is the sole eye witness of this occurrence. Now this has to be seen whether implicit reliance can be placed on her testimony to sustain this conviction? It has been held by a Division Bench of this Court in Kartar Singh vs. The State (1) that an accused can be convicted even on the basis of the evidence of single eye witness but such a witness must be of sterling worth. If it is found that the single witness to the occurrence is not sticking to the truth, then it is very unsafe to ignore the discrepancies appearing in his or her statement and convict the accused on that basis alone. Our attention was next drawn by Mr. Singhvi to a decision of their lordships of the Supreme Court in Badri vs. State of Rajasthan That was a case where the only eye witness of the occurrence modulated his evidence to suit the prosecution story. Their lordships felt that they are unable to uphold the conviction of the accused on the basis of such a testimony. Thus, the sole test to base a conviction on the testimony of a sole witness is that he or she should be a witness of sterling worth. Now let us see whether her testimony is reliable and whether any conviction can be based on her sole testimony. The substance of the story as put forth in the F. I. R. has been quoted in brief above. Smt. Basanti Devi was examined as P. W. 1 she was stated that at about 10. 30 in the night, she and her husband were sitting outside their house on the stairs of the Chabutari and they were taking their meals. There was moonlight on the road and there was also light on her well. At that time, 2-3 boys came in a tempo whom she has identified as the accused persons present in the Court. They first went towards the village and then came back and enquired from Shankerlal as to what he was doing. Shankerlal told them that he was taking his meals and they may also come and join him. On this, the accused persons told him that they have already taken their meals and he should come and show them the way to the market. On this, her husband Shankerlal stopped taking his meals and went with Ashok, Shanker and. Narendra towards the market. These persons belong to village Bhuwana which is not at a far distance from village Kavita. They are local persons and, therefore, it is unthinkable that they will call Shankerlal to show them the way to the market, it has been stated by Smt. Basanti Devi that they first went to village and thereafter they came back meaning thereby that they were knowing the village and hence there was no reason for them to call Shankerlal to show them the way to the market and, therefore to that extent the testimony of Smt. Basanti Devi appears to be unnatural. Thereafter, it has been stated by her that she heard cries of her husband Shankerlal
(3.) VJS&VJS nksm+* Earlier, in the F. I. R. she has stated that he cried- Gjs&Gjs* Be that as it may, she has stated that on hearing this, she went running towards her husband and also cried for help and when she reached near the place of the occurrence, she found that three accused persons have already caught hold her husband and accused Ashok was inflicting knife blows on the chest and waist of her husband. The blood was coming or oozing out of his body, he fell down and thereafter these persons ran away in that tempo. Her husband died then and there. On hearing her cries, Madhuji-Khawas, Navalji, Gameti, Dhulji and Dharamnarayan came there. She has been confronted with her statement Ex. P. 1 which was given by her to the police and which forms the basis of F. I. R. in which she has stated that when she reached near the place of the occurrence two accused persons i. e. Shanker and Pappu @ Pradeep were telling that this man should be killed and thereafter when they saw her, they boarded the tempo and at that time, she saw that Ashok was armed with the knife. It was told to her that in this statement, she didn't say that any of these accused persons was holding the body of her husband. She further asked that she has also not stated that she saw Ashok inflicting any blows to her husband on the chest and the waist. Her reply to these questions is that she has stated these facts to the police. This explanation cannot be accepted. Thus, there is an apparent improvement in her statement which she has made in Ex. P. 1 and the one she has made before the Court. Mr. Singhvi has submitted that her statement cannot stand scrutiny. She is an interested witness and, therefore, no reliance can be placed on her statement. Our attention was also drawn to a D. B. decision of this Court rendered in Savia vs. State of Rajasthan (3) wherein the learned Judges have held that the testimony of the solitary witness, in order to seek conviction, should be free from suspicion and should be above board. It should be above reproach and must satisfy the conscience of the Court that it would not be unsafe to convict the culprit on the uncorroborated testimony of such a solitary witness. ;