SHARMA, J. - (1.) MOD Singh, Smt. Harku Bai, Sardara and Ramesh, the appellants herein, along with one Bhuri Bai (absconded during trial), were placed on trial in Sessions Case No. 20/2000, before learned Additional Sessions Judge Aklera, District Jhalawar, who vide judgment dated July 2, 2002 convicted and sentenced the appellants as under:- MOD Singh, Harku Bai, Sardara and Ramesh: U/s. 302/149 IPC: Each to suffer life imprisonment and fine of Rs. 1000/-, in default to further suffer two months imprisonment. U/s. 326/149 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer one month imprisonment. U/s. 324/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer one month imprisonment. U/s. 148 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer one month imprisonment. Substantive sentences were directed to run concurrently.
(2.) THE prosecution case is under:- On December 25, 1999 parcha bayan (Ex. P. 1) of Ratan Lal (PW. 11) was recorded, wherein he stated that on the said day around 12 Noon while he along with Ummeda and Man Singh were traveling in a bus, Harku Bai and Bhuri Bai pulled Ummeda (now deceased) down from the bus. Ramesh, Mod Singh and Sardara belaboured Ummeda and Ramesh inflicted knife blow on the abdomen of Ummeda, whereas Mod Singh inflicted knife blow on his chest and Sardara gave axe-blow on his neck. Harku Bai and Bhuri Bai caused injuries with lathis. On the basis of aforesaid parcha bayan case under Sections 302, 307, 147, 148 and 149 IPC was registered and investigation commenced. Autopsy on the dead body was performed, statements of witnesses were recorded, accused were arrested and necessary memos were drawn. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Aklera District Jhalawar. Charges under Sections 147, 148, 302/149, 326/149, 324/149 and 120b IPC were framed. THE appellants denied the charges and claimed trial. THE prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the rival submissions and scrutinised the record. Death of Ummeda was indisputably homicidal in nature. As per post mortem report (Ex. P. 18) Ummeda received as many as 23 antimortem incised wounds and cause of his death according to Dr. Mohd. Akbar (PW. 14) was hemmorhage due to cut injuries on throat. The prosecution case rests on the testimony of Ratan Lal (PW. 16), Ganga Bai (PW. 17) and Man Singh (PW. 18), who have been examined as eye witnesses of the occurrence. In his deposition Ratan Lal (PW. 16) stated that at Khakhra stand Ramesh, Harku, Sardara, Bhuri and Mod Singh dragged his son Ummeda down from the bus and Mod Singh, Ramesh, Harku and Bhuri gave knife blows on the person of Ummeda, whereas Sardara inflicted axe blow on his neck as a result of which Ummeda died on the spot. Ganga Bai (PW. 17) deposed that at the time when her son Ummeda was attacked she reached at Khakhra Bus-stand. According to her Harku and Bhuri had caught hold of Ummeda while Ramesh, Sardara and Mod Singh were inflicting injuries with knives. In her cross examination she however admitted that on receiving information that Ummeda was killed she and her husband rushed to the place of incident. Man Singh (PW. 18) stated that while he, his father, mother and brother Ummeda were coming from Manoharthana in a bus, Bhuri and Harku got Ummeda down from the bus at Khakhra bus-stand and Ramesh, Sardara and Mod Singh inflicted injuries with knives and Gandasi. Himmat Singh (PW. 15) conducted the investigation of the case and on the basis of disclosure statements of the appellants he effected recovery of the weapons allegedly used in commission of the offence. Learned counsel for the appellants canvassed that the incident had occurred at bus stand in the presence of several persons but no independent witness was examined by the prosecution. According to learned counsel presence of Ratan Lal, Ganga Bai and Man Singh, were near relatives of the deceased and their presence at the time of incident was highly unnatural and no reliance could be placed on their testimony.
(3.) HAVING closely scrutinised the evidence of Ratan Lal, Ganga Bai and Man Singh, we find that Ganga Bai and Ratan Lal were not present at the time of incident and they reached much after the incident occurred. Presence of Man Singh (PW. 18) is however, established even from the Parcha Bayan (Ex. P. 1 ). On examining the testimony of Man Singh from the point of view of trustworthiness were find it consistent in so far allegation against appellants Mod Singh, Ramesh and Sardara is concerned. Despite his searching cross examination nothing has been brought out, which may in any way cast doubt about his reliability and his evidence qua appellants Mod Singh, Sardara and Ramesh receives ample corroboration from the testimony of Himmat Singh, IO (PW. 15) as well as the evidence of Dr. Mohd. Akbar (PW. 14), who conducted autopsy on the dead body of Ummeda. We find no substance in the submission of learned counsel that the testimony of Man Singh being close relative of the deceased is unreliable. It is well settled that when a witness holds a position of relationship favouring the prosecution, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of acts appearing from the record. It is not open to the court to reject the evidence without anything mode on the mere ground of relationship or favour possible prejudice. Even where there is only sole eye witness of a crime, a conviction may be recorded against the accused provided the court which hear such witness regards him as honest and truthful. In Kartik Malhar vs. State of Bihar (1995 (8) JT (SC) 425), the Apex Court held that the ground being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this court as early as in Dalip Singh's case (AIR 1953 SC 364) in which the Apex Court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witness. Speaking through VIVIAN BOSE J. , the Court observed in para 25 of AIR 1953 SC thus: " We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. " In regard to allegation against appellant Harku Bai is concerned, we notice that Man Singh deposed that it was she who pulled deceased down from the bus. It also appears from the record that the complainant party was earlier involved in the murder of Harku Bai's son. A doubt therefore creeps in mind about the participation of Harku Bai in the crime and possibility of over implication of Harku Bai cannot be ruled out. Learned counsel for the appellants further urged that appellant Ramesh vide injury report (Ex. P. 20) also sustained 5 injuries and since these injuries have not been explained, the prosecution appears to have withheld the origin and genesis of the occurrence. We find no force in the submission, for the reason that the prosecution witnesses at the time of their cross examination were not confronted with the injury report of appellant Ramesh. Even in his statement under Section 313 Cr. P. C. Ramesh did not say that he had sustained the injury in the same occurrence. We thus find that the prosecution is able to establish the charges under Sections 302/149, 326/149, 324/149 and 148 IPC beyond reasonable doubt against appellants Mod Singh, Sardara and Ramesh. For these reasons, we dispose of instant appeal in the following terms:- (i) We allow the appeal of appellant Harku Bai and her conviction and sentence under Sections 148, 302/149, 326/149 and 324/149 IPC are set aside and she stands acquitted of the said charges. Appellant Harku Bai is on bail, she need not surrender and her bail bonds stand discharged. (ii) Appeal of appellants Mod Singh, Sardara and Ramesh is dismissed and their conviction and sentence under Sections 148, 302/149, 326/149 and 324/149 IPC are confirmed. (iii) The impugned judgment of trial court stands modified as indicated above. . ;