SHARMA, J. - (1.) KHEM Chand @ KHEMesh and Prem Shankar, appellants herein along with two other co-accused, were put to trial before learned Additional Sessions Judge No. 1 Bayana (Bharatpur), who vide judgment dated February 15, 2003 while acquitting co-accused, convicted and sentenced the appellants as under:- KHEM Chand @ KHEMesh: u/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for one month. u/s. 307 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for one month. u/s. 341 IPC: To suffer simple imprisonment for one month. Prem Shankar: u/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for one month. u/s. 307/34 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for one month. u/s. 341 IPC: To suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently.
(2.) THE prosecution case as unfolded during trial is as under:- On receiving written information from the Hospital about fire arm incident, Nasir Khan, Sub Inspector Police Station Bayana (Bharatpur) rushed to the hospital and recorded parcha bayan of Thalesh Chand (PW. 2) on November 11, 1996 at 12. 15 PM. Thalesh Chand stated that on the said day around 11. 45 AM while he and his son Rajesh were proceeding to meet one Satya Prakash, they were belaboured near the well by Khemesh, Virma @ Prem Shankar, Gudda @ Akhlesh and one bearded boy, Prem Shankar then opened three fires from Katta on Rajesh, that hit on his chest. Khemesh opened fire with 12 bore Katta at him (Thalesh) and caused injury on his hip. Gudda who was armed with sword, left the sword and fled away. THE assault was made because of old enmity. Pooran, Tekchand @ Pola and Laddu @ Mool Chand had seen the incident. Rajesh was removed to the hospital where he was declared dead. On that parcha bayan a case under Section 302, 307, 341/34 IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1, Bayana, Charges under Sections 302, 302/34, 307, 307/34 and 341 IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 10 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Six witnesses in support of defence were examined. Learned trial Judge on hearing final submissions, while acquitting co-accused persons, convicted and sentenced the appellants as indicated herein above. Death of Rajesh was undeniably homicidal in nature. As per Post Mortem Report (Ex. P. 16) following ante mortem injuries were found on the dead body:- 1. Gunshot would circular 3cm in diameter margins (wound of entry) inverted, irregular & blackened over the anterior chest wall on left side 5 cm below at the nipple & 5 cm lateral to mid line. 2. Gunshot wound explored 6 pieces (5 made of plentic line maternal & 1 metal piece) removed from the wounds, sealed, preserved & handed over to police for ballistic examination. On exploration costal cartilage Rib (7 & 8 rib) anterior chest wall fractured, Lt. side of wall ruptured, abdominal cavity is full of blood, stomach through & through ruptured. Metal piece formed nerve L1-2 vertebra, inferior vena cava & descending aorta is lacerated in abdominal cavity. In the opinion of Dr. Ram Kumar Gupta (PW. 7) the cause of death was shock due to gunshot injury to liver, stomach and large vessels in abdomen. Injuries sustained by Thalesh Chand (PW. 1) were examined and as per injury report (Ex. P. 5) following injuries were found on his person:- 1. Gunshot wound 3 cm x 2 cm over gluetal region in lower & inner margin inverted quadrant (wound of entry) two 2. wound of exit 3 cm x 2 cm on Rt. side & lateral margin We have heard the submissions advanced before us and scrutinised the evidence adduced at the trial. The witness Pooran Chand Sharma (PW. 8) and Mool Chand Sharma (PW. 9) named in the FIR did not support the prosecution case and they were declared hostile. The only eye witness, who deposed against the appellant is Thalesh Chand (PW. 2 ). In his deposition Thalesh Chand stated that all the four assailants were armed with Kattas and they surrounded Rajesh. When he (Thalesh) made attempt to intervene, Khemesh exhorted to kill him also. In the meanwhile Prem Shankar opened fire, that hit on the chest of Rajesh. He (Thalesh) then ran for his life but Khemesh followed him and opened fire at him that hit on his left hip. Testimony of Thalesh Chand was attacked from various angles by the learned counsel for the appellant. It was contended that Thalesh Chand was a history sheeter and involved in many criminal cases. Even Rajesh was also a dangerous criminal of that area. Learned counsel took us through the cross examination of Thalesh Chand and the evidence of defence witnesses. It is true that Thalesh and Rajesh were involved in few criminal cases but this fact itself cannot be a ground to discard the testimony of Thalesh Chand. The testimony of a single witness can be sufficient to prove the guilt of the accused, if found entirely reliable. In case of the sole ocular witness, however the court should be on their tip toe and guard and must scrutinise the evidence with greater care and caution. Section 134 of the Indian Evidence Act provides that no particular number of witness shall in any case be required for the proof of any fact.
(3.) IT was canvassed by the learned counsel for the appellants that in view of the contradictions in the statement of Thalesh Chand he could not be ranked as wholly reliable witness therefore his testimony ought to have been outrightly discarded. Learned counsel pointed out the embellishment made by the witness in his cross examination. Learned counsel placed reliance on State of UP vs. Madan Mohan (AIR 1989 SC 1519), Satya Narayan vs. State of Madhya Pradesh (AIR 1972 SC 1309), Narain Soni vs. State of Rajasthan (1997 Crlr (Raj.) 164), Ramesh vs. State of Rajasthan (1996 (1) RLW (Raj. 533), Babu Krishna Kamble vs. State of Maharashtra (AIR 1989 SC 1269), Kachwa vs. State of Rajasthan (1985 RLR 92) and Harish Chandra @ Pappu vs. State of Rajasthan (1996 Crlr (Raj.) 177 ). Having gone through the testimony of Thalesh Chand, we although find discrepancies, they however do not affect the core of the prosecution case. In Munshi Prasad vs. State of Bihar (2002 (1) SCC 351, the Hon'ble Supreme Court indicated that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. In Anil Rai vs. State of Bihar (2001) 7 SCC 318, where the discrepancies in description by eye witnesses of guns and rifles in the hands of accused persons were not found material. It was held that there is hardly any difference between gun and rifle for a common man. In Sukhdev Yadav vs. State of Bihar (2001) 8 SCC 86, it was observed by the Apex Court that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment. In the case on hand we find some variations in the testimony of Thalesh Chand, but there exist no major contradictions on record. The evidence of the witness cannot be discarded in its entirety. In order to find out the truth from the evidence, the court can sift the chaff from the grain. ;