BANSAL, J. - (1.) THE instant jail appeal is directed against the judgment dated May 26, 2001 passed by learned Additional Sessions Judge, Gangapur City whereby appellant Budh Singh has been convicted under Sections 302 of the Indian Penal Code and 3/25 of the Arms Act and sentenced to suffer imprisonment for life and a fine of Rs. 500/-, in default of payment of fine to further undergo imprisonment for one month and to suffer simple imprisonment for one year and a fine of Rs. 500/-, in default of payment of fine to further undergo one month's imprisonment respectively.
(2.) BRIEFLY stated the case of the prosecution is that on July 28, 1998 at 2. 50 p. m. Parcha-Bayan Ex. P12 of PW11 Arjun Singh S/o Shri Kesar Singh, by caste-Rajput, aged 35 years, R/o- Khudsya, P. S. Gangapur City was recorded by PW14 Ramkaran, ASI, P. S. Gangapur City wherein it was interalia stated by Arjun Singh that Budh Singh is his elder brother. Except one house they had divided their land and other properties and are in possession of their respective shares for the last 25 years. It was also stated by Arjun Singh that they are not being allowed to reside in the aforesaid house by Budh Singh and his son Pancham Singh. Today at 12. 00 noon his wife Mohan Bai and daughter Pappi Bai were standing on the `chabutara' of the aforesaid house. At that time he was at the house of Mohar Singh. On hearing sound of gunshot, he came on the spot and found his daughter Pappi lying injured on the `chabutara'. There were pellet injuries on her abdomen and below right elbow. He found Budh Singh also standing there armed with a gun. Pancham Singh had gone to Gangapur. It was further stated by Arjun Singh that Budh Singh confessed before him that he had killed Pappi and he would also kill him. Moti Singh, Nathu Singh, Jagdish Singh, Anand Singh, Mool Singh, Mukund Singh and other residents of his village came there. Thereafter they took Pappi to Gangapur hospital where she is under treatment. It was also stated in Ex. P12 that on account of partition of property, there is enmity between him and Budh Singh. On the basis of `parcha-Bayan' Ex. P12, a case was registered by the SHO, P. S. Gangapur City under Section 307 IPC Formal FIR is Ex. P30. Pappi was medically examined by PW12 Dr. N. K. Agarwal at 2. 30 p. m. on July 28, 1998. In the course of investigation, the I. O. reached on the spot and prepared Site Plan Ex. P6 on the same day. Blood smeared soil and control soil was seized and sealed vide Seizure Memos' Ex. P1 and Ex. P2. The appellant was arrested on 28. 7. 98 vide Arrest Memo Ex. P5 and on his disclosure statement and at his instance one barrel of S. B. M. L. gun with ram rod, three iron screws, one iron nail, one iron buckle for belt, one iron clip, one brass trigger, one brass patch box cover, one small brass plate of the butt, one brass ram rod holder, one iron strip, two different shapes metallic pieces and six small lead pieces were recovered from the house of the appellant and after sealing these articles, the I. O. prepared Seizure Memos' Ex. P7 and Ex. P8, Pappi succumbed to her injuries at 7. 10 p. m. on 2. 8. 98. Post-mortem examination was conducted by PW13 Dr. M. L. Kawat, Medical Jurist, S. M. S. Hospital, Jaipur at 11. 45 a. m. on 3. 8. 98 and he prepared post-mortem report Ex. P17. On the death of Pappi, the I. O. proceeded with the trial for the offence under Section 302 IPC. Inquest Report Ex. P11 of the deceased was prepared. `salwar' and `kurta' which the deceased was wearing at the time of the incident were seized and sealed by the I. O. vide Seizure Memo Ex. P13. Statements of the witnesses were recorded under Section 161 Cr. P. C. On completion of investigation, charge-sheet was laid against the appellant in the Court of Additional Chief Judicial Magistrate, Gangapur City who committed the case to the Court of Additional Sessions Judge, Gangapur City. Learned Additional Sessions Judge framed charges under Sections 302 IPC and 3/25 of the Arms Act against the appellant who pleaded not guilty and claimed to be tried. To prove these charges, the prosecution examined as many as 21 witnesses. In his statement recorded u/s. 313 Cr. P. C. , the appellant pleaded innocence and false implication. He further stated that Pappi was killed by his son Pancham Singh. However, no evidence in defence was adduced. Learned Additional Sessions Judge on hearing the final submissions, convicted and sentenced the appellant as indicated here-in-above. We have heard learned Amicus Curiae for the appellant, learned Public Prosecutor and have also scanned and scrutinized the material on record. It is not in dispute that the deceased Pappi met with the homicidal death. PW12 Dr. N. K. Agarwal, the then Medical Officer, U. P. H. C. , Gangapur City deposed that at 2. 30 p. m. on 28. 7. 98 he examined Pappi Bai D/o Arjun Singh, aged 18 years, by caste- Rajput, R/o- Khudsya and found the following injuries on her person:- (1) Multiple punctured wounds about 30 in number on all over abdomen, size 1/2cm. x 1/2cm. , wounds surrounded by black area 1/2cm. , bleeding from all wounds. (2) Abrasion 2cm. x 1/2cm. on anterior middle part of right forearm. (3) Punctured wound 1/2cm. x 1/2cm. on posterior laterally right elbow region, surrounded by black area 1/2cm. , bleeding present. (4) Punctured wound 1/2cm. x 1/2cm. on posterior aspect of lower 1/3rd right forearm, surrounded by black area 1/2cm. , bleeding present. Dr. Agarwal further stated that till X-ray he reserved his opinion in respect of injuries No. 1,3 and 4. Injury No. 2 was simple and caused by blunt weapon. Duration of injuries was within four hours. He prepared injury report Ex. P14. Dr. Agarwal also stated that as the condition of the injured was serious, he referred her to Jaipur hospital. Pw13 Dr. M. L. Kawat, Medical Jurist, S. M. S. Hospital, Jaipur stated in his deposition that on the application of the SHO, P. S. Moti Doongari, Jaipur he conducted the post-mortem examination on the dead body of Ms. Pappi D/o Arjun Singh, aged 18 years, by caste-Rajput, R/o-Khudsya, P. S. Gangapur City at 11. 45 a. m. on 3. 8. 98. Pappi was admitted in the hospital on July 28, 1998 and expired on August 2, 1998. He found following injuries on her person:- (1) Stitched wound 28cm. long on front of abdomen with one draining coming out of abdomen on left side (L flank) and two drains are placed over right side of abdomen (R flank)- done surgically for treatment. (2) Loop of small intestine out side abdomen in the stitched line U1/2 with a gut, done surgically for treatment. . . . . . . (3) Multiple lesions in front of abdomen and both sides, 24cm. left side and 9 cm. right side. 1/4x1/4 cm. circular with dark brown scab. On dissection-underlying tissues staining seen with track reaching upto abdominal cavity, the omentum and mesentery found stitched at places and adjacent to gut stitches applied at four places in small gut and gastro jejunum and few places of large gut. Peritoneum found stitched at places and plasted, there is slough and puss formation (found) at places in abdominal cavity and gut with dark colour blood and burns. Five pellets were taken out from the underlying tissues and from abdominal centres. (4) Four lesion circular 1/4x1/4cm. on right forearm with dark brown scab and two lead pellets taken out from underlying tissues. Dr. Kawat further stated that all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. Injury No. 3 and 4 were caused by firearm. In his opinion, the cause of death was septicemic shock brought about as the result of injuries caused by firearm. He prepared post-mortem report Ex. P17.
(3.) LEARNED Amicus Curiae did not challenge the veracity of Dr. Agarwal and Dr. Kawat and we see no reason to disbelieve their testimony. Therefore, from the testimony of Dr. Agarwal and Dr. Kawat, it has been established by the prosecution beyond reasonable doubt that the cause of the death of Pappi was the injuries on her abdomen which were caused by firearm. Hence, homicidal death of deceased Pappi stands proved. Learned Amicus Curiae contended that the prosecution case rests on the testimony of sole eye-witness PW4 Mohan Bai who being the mother of the deceased is interested as well as partisan witness and, therefore, her testimony should not be accepted as sufficient, in absence of corroboration from an independent witness, which is lacking in the instant case, to come to the conclusion that the prosecution has succeeded to prove its case against the appellant. It was also contended that on the basis of the testimony of sole eye-witness PW4 Mohan Bai, the appellant could not be held guilty for the murder of Pappi. We have given our thoughtful consideration to the submissions made by learned Amicus Curiae for the appellant. The Apex Court in Lehna vs. State of Haryana (1), held as under:- " We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. " In Dalip Singh vs. State of Punjab AIR 1953 SC 364, it has been laid down as under: " A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. " The above decision has since been followed in Guli Chand vs. State of Rajasthan- AIR 1974 SC 276, in which Vadivelu Thevar vs. State of Madras- AIR 1957 SC 614 was also relied upon. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh Case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed. (AIR p. 366, Para 25) "we are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar vs. State of Rajasthan- AIR 1952 SC 54 at p. 59 (A ). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel. " Again in Masalti vs. State of U. P.-AIR 1965 SC 202, this Court observed: " But it would, we think, be unreasonable to contended that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. . . . . The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. " To the same effect is the decision in State of Punjab vs. Jagir Singh- AIR 1973 SC 2407". ;