LODHA, J. - (1.) THIS appeal is directed against the judgment dated 18-9-2001 of the Special Judge, SC/st (Prevention of Atrocities) Act Cases, Sawai Madhopur, whereby the appellant was convicted and sentenced as under:- u/s. 302/149 IPC: To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer 3 months rigorous imprisonment. u/s. 148 IPC: To suffer rigorous imprisonment for two years. u/s. 326/149 IPC: To suffer seven years rigorous imprisonment and fine of Rs. 300/- in default to suffer two months rigorous imprisonment. u/s. 325/194 IPC: To suffer three years rigorous imprisonment and fine of Rs. 200/- in default to further suffer one month rigorous imprisonment. u/s. 3 (2) (v) SC/st (Prevention of Atrocities) Act: To suffer life imprisonment and fine of Rs. 1000/- in default to further suffer six months rigorous imprisonment.
(2.) THE background facts which led to the trial of the appellant are summarized thus: On 28-7-1997 a written report was lodged by Shri Ratan Lal at Police Station Nadoti (Sawai Madhopur) wherein he alleged that few days back samay Singh S/o Lohare Gujar of village Gopalpura Kemari had assaulted his neighbour Somotya and others of Berwa Community, whom he had taken to the Police Station Nadoti in his tractor-trolly for lodging the report, therefore, Samay Singh was annoyed with him and consequently Samay Singh had come to his house on 27-7-1997 and asked his wife about him and threatened of dire-consequence of killing him. It was further alleged that in the afternoon Shanker and Bheem Singh came to his house and gave a threatening to kill him. It was further alleged by Ratan Lal that an agriculture field of one Ratan Master he had taken on share basis, therefore, he had done to that field on his tractor along with his father-in-law Pakhandi, tractor driver Murari Mali, Prabhu (husband of his sister-in-law), Batti Lal (his sister's husband), where Murari Mali started ploughing the field, while they went to the well for the bath, where from Prabhu and Batti Lal both had gone towards the nalla to ease themselves at about 7:00 or 7:30 pm. It was alleged that there both of them were surrounded and beaten by Samay Singh, Bheem Singh, Daya S/o Lohre, Hargyan S/o Ghamandi and Shanker S/o Hansraj Gujar, who were duly armed with weapons Lathi, Gandasi and Dhariya. It was stated that there was one more person whom he could not recognise. He also alleged that hearing the hue and cry he along with his father-in-law Pakhandi and driver Murari Mali reached the spot, but they were also threatened by Samay Singh of killing them, if they intervene during the beating. It was further stated that Samay Singh and Hargyan were duly armed with Dhariya and Gandasi whereas Shanker had Gandasi in his hand and the remaining were having Lathies in their hands, who stated beating and inflicting injuries to the Prabhu and Batti Lal, however, on their `halla-hale' after beating they left the place of incident in a jeep standing near Gopalpura whereupon they came near Prabhu and Batti Lal but till than they had lost their lives. On the aforesaid written report case under Sections 147, 148, 149, 341, 302 IPC and 3 SC/st Act was registered against the accused persons and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, after inquest proceedings the dead bodies were subjected to autopsy. After completion of investigation, in the first instance challans were filed for the offences under Sections 147, 148, 149, 202, 323, 341, 325, 326 and 3 (2) (v) SC/st Act against the accused Hargyan, Dayaram and Bheem Singh inasmuch as co-accused Samay Singh (present appellant) and Shanker Singh were absconding. THE investigation against them were kept pending under Section 173 (8) of Cr. P. C. THE trial of the co-accused Hargyan, Dayaram and Bheem Singh was conducted by the Special Judge, SC/st (Prevention of Atrocities) Cases, Sawai Madhopur, who framed the charges against them for offences under Sections 148, 302/149, 326/149, 325/149 IPC besides Section 3 (2) (v) of the SC/st Act, to which they pleaded not guilty and claimed trial. After due trial of the accused persons were convicted by the learned trial Court for the offences under Sections 148, 302/149, 326/149, 325/149 IPC and under Section 3 (2) (v) of the SC/st Act and were ordered to suffer the sentences of various descriptions. THE sentences awarded to the aforesaid co-accused were confirmed by this Court vide judgment dated 20-2-2001 rendered in DB Criminal Appeal No. 337/2000. Subsequently, on the arrest of Samay Singh @ Gopal, during investigation at his instance the weapon `dhariya' was recovered. After completion of investigation, challan was filed against him before the Additional Judicial Magistrate No. 1 Hindaun City under Sections 147, 148, 149, 323, 324, 326, 302 IPC & 3 SC/st Act. The case was committed to the Court of Special Judge, SC/st (Prevention of Atrocities) Act Cases, Karoli. The accused- appellant Samay Singh denied the charges and claimed trial. In support of the case, the prosecution got examined as many as 11 witnesses and produced various documents, whereas the appellant in his defence produced one witness Shiv Charan Singh. In his examination under Section 313 Cr. P. C. the appellant while denying his involvement stated that he has been falsely implicated in collusion with Parmal, SHO with whom he has personal enmity. After hearing the parties and considering the evidence on record the learned trial Court convicted and sentenced the appellant as indicated hereinabove. We have heard the learned Amicus Curiae, the learned counsel Mr. Yunus Khan appearing on behalf of the appellant and the learned Public Prosecutor and we have also scanned the evidence on record with their assistance. It is contended on behalf of the learned counsel for the appellant that one of the eye witness Murari (PW. 8) has been declared hostile, therefore, the entire prosecution case is based only on the testimony of a single eye-witness Ratan Lal, whose statements suffer from material contradictions. It is argued that in his statement under Section 161 Cr. P. C. , so also, in the statement before the learned trial Court during the trial of other co-accused, Shri Ratan Lal has disclosed the involvement of Shri Shanker in the crime. However, during the trial of the appellant herein, he has stated that name of Shri Shanker was taken by him under the influence of Inspector Parmal. In this view of the matter, it is contended by the counsel for the appellant that the possibility of Ratanlal implicating the accused-appellant under the influence of Inspector Parmal cannot be ruled out, especially when the PW. 1 Ratan Lal has categorically deposed that the brother of accused-appellant had contested election against Smt. Rumali Devi W/o Parmal and there exists rivalry between the brother of the accused-appellant and Inspector Parmal. The learned counsel further argued that on the basis of the evidence on record at the most it can be inferred that the appellant Samay Singh had some enmity with Ratan Lal (PW. 1), but there is absolutely no evidence to show that the accused Samay Singh had any enmity with Prabhu and Batti Lal, therefore, there exists no motive to kill them. It was absolutely impossible for Ratan Lal (PW. 1) to see the incident from such a distance specially looking to the depth and width of Nalla, the place of occurrence. The learned counsel urged that it is highly unbelievable that the brother-in-law of Ratan Lal (PW. 1) was being assaulted by the accused-persons yet he did not make any attempt to save them. Accordingly, it is contended by the counsel for the appellant that in the facts and circumstances of the case no conviction can be based against the appellant on the basis of solitary eye-witness whose statements are absolutely untrustworthy. It is next contended on behalf of the learned counsel for the appellant that the Ex. P. 1 has been treated FIR by the prosecution, whereas before lodging the written report, on the oral report of Ratan Lal the police conveyed the wireless message, that the relatives of Ratan Lal have been murdered by gun shot, hence, according to the learned counsel the wireless message was the First Information Report, yet the prosecution has deliberately suppressed the information conveyed to the police about the incident, which is obviously fatal to the prosecution case. It is next contended that the recovery of Dhariya at the instance of Samay Singh is absolutely unreliable. Besides the injury by the said weapon on the corpus of any of the accused persons have not been established. The learned Public Prosecutor while supporting the prosecution case has reiterated the submissions made before the learned trial Court. It is urged by him that the conviction can always be based on the testimony of solitary eye-witness if he is found to be reliable. Regarding the wireless message being treated as FIR, the learned Public Prosecutor apprised the Court that the wireless message which was alleged to have been sent by the SHO was received by Jagdish Prasad (PW. 11) after the written report (Ex. P/1a), therefore, such wireless message cannot be held to be First Information Report. Precisely, according to the learned Public Prosecutor the conclusion arrived at by the learned trial Court are based on proper appreciation of the evidence adduced by the prosecution, therefore, conviction of the accused by the trial Court and sentenced awarded does not warrant any interference by this Court. Looking to the nature of the injuries and cause of death of the two deceased persons Prabhu and Batti Lal, their deaths are concededly homicidal in nature. Dr. Shriphool Meena (PW. 7), who was at the relevant time Medical Officer in Government Hospital, Nadoti conducted autopsy over the death bodies of Prabhu and Batti Lal. As per the postmortem report (Ex. P. 18-A) and (Ex. P. 19-A), following ante-mortem injuries were found on the persons of the two deceased:- Prabhu S/o Monya Bairwa 1. Lacerated wound - 5 x 1/2 cm. B. D. on the middle of left parietal region. 2. Lacerated wound - 4 x 1/2 cm on posterior and upper aspect of left parietal region. 3. Incised wound - 3 x 1/2 cms B. D. just 2 cm below the injury No. 2. 4. Incised wound - 4 1/2 cms x B. D. interior aspect of left occipito parictal region just 5 cm behind the left ear. 5. Incised wound - 3 1/2 x 1/2 cm x B. D. just 3 cm below the injury No. 3. 6. Depresion - 5 x 3 x 1/2 cms just above left ear. 7. Privation on Pinna of left ear - 2 x 1/2 cm. Nature of injury is sharp 8. Depresion - 5 x 3 cm just above the right eyebrow. 9. Lacerated would - 5 x 1/2 cm x B. D. on right fronto parietal region. 10. Swelling - 5 x 4 cm middle of the forehead. N. B. Injury No. 1, 2, 6, 8, 9, 10 caused by blunt object and rest of injury caused by sharp object. N. B. Post Mortem Pigmentation Present on the dependent part of body (Anterior aspect) Cranium & Special Cord Scalp - Injury on scalp written above No. 1 to 10. Skull - Diffused clotted blood present on the fore head at middle and right side, right and left parietal region. Fractures:- 1. There is compound fracture of Right Parieto Frontal bone. 2. There is separation of Right Parieto-Temporal suture. 3. There is separation of Right Parieto-Frontal suture. 4. There is fracture of left parietal bone at middle. 5. There is separation of left parieto-occipital bone. 6. There is multiple fracture of left Parieto-occipital bone. Membrain-Was congested Brain- 1. Contusion- on the part of left Parietal region of brain linear to the sagital suture. 2. Contusion - on the left parietal region of Brain in lower aspect linear to the Injury No. 6. 3. Laceration - Right parieto Frontal region of the brain. N. B. Clotted blood was present all over the Brain Injury (Dark Red Colour ). Cause of Death & Opinion "in my opinion cause of death is Head Injury and shock due to haemorrhage and due to multiple injuries. All injuries are ante mortem. " Re-Injuries on Battialal S/o Kanhaiyalal Bairwa 1. Swelling - whole of the left temporal region. 2. Depresion- 5 x 3 cm lower aspect of left Fronto parietal region. 3. Incised would - 8 x 1/2 x B. D. cm upper aspect of left Fronto parietal Regiona. 4. Incised wound - 8 x 1 cm x Brain tissue Depth on the middle of occipital region. 5. Incised wound - 7 x 1/2 cm x B. D. upper aspect of left Parieto occipital region. 6. Incised wound - 6 x 1/2 x Brain tissue Depth lower aspect of left occipital region. N. B-1- Injury No. 1 & 2 caused by blunt weapon and rest of injuries due to shap weapon. N. B. 2. Post Mortem staining present on the dependent part of body (Anterior aspect) N. B. 3 Clotted blood was present over the both nostrils. Cranium & Spinal Cord Scalp :- Injuries on the scalp are prescribed above 1 to 6. Skull :- Diffused clotted blood present on the left Parietal & Occipital region. Dark Red in colour. Fractures:- 1. Multiple fractures of left temporal bone 2. Separation of left parieto temporal and fronto temporal suture. 3. There is fracture of left parietal bone 4. Separation of the left parieto occipital suture 5. Fractures of the occipital bone (multiple) Membrain :-was congested. Brain :- 1. Laceration on the part of left temporal region. 2. Laceration on the part of the middle of the occipital region. 3. Laceration on the region of the left occipito parietal region. N. B. Clotted blood was present all over the Brain injuries. Dak Red in colour. Cause of Death & Opinion In my opinion, cause of death is Head injury and shock due to Haemorrhage and due to multiple injuries. All injuries are ante mortem. Thus, as per the medical evidence the injuries found on the persons of the accused could have been caused by weapons Dhariya, Gandasi and Lathies. Dr. Meena (PW. 7) in his deposition has categorically stated that the injuries sustained by the deceased were sufficient to cause death in ordinary course. Thus, on the basis of medical evidence on record, it is established beyond doubt that the death of the deceased Prabhu and Battilal was homicidal in nature.
(3.) IT is settled law that the conviction can be based on testimony of solitary eye-witness if his version is of sterling worth and the verdict of the Court can rest even on a sole witness if the Court is fully satisfied that such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt. The reference in this regard may be made of the decision of the Hon'ble Apex Court in the matter of Jaswant Singh vs. State of Punjab (1973 (3) SCC 657) and Kartik Malhar vs. State of Bihar (1996) (1) SCC 614 ). After having considered the case law, threedbare this Court while deciding the appeal of the co-accused Hargyan and others (DB Criminal Appeal No. 537/2000 decided vide judgment dated 20-2-2001) observed as under:- ``after having browsed through the dictum of law referred to above we must hold that conviction can be based on the testimony of solitary witness provided it inspires confidence and is reliable and the only caution to be taken in this regard, is that the Court must be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial, if such evidence is neither wholly reliable nor wholly unreliable, inasmuch as where evidence of eye witness is found to be consistent and substantially conforming to the version appeared in the FIR or case diary statement and medical evidence, wherein contradictions and omissions are immaterial, evidence of solitary witness cannot be viewed with suspicion if it is unimpeachable and hence should not be discarded and can from the basis for sustaining the conviction. Even otherwise, if the solitary evidence is wholly reliable the Court may convict the accused and if such an evidence is wholly unreliable then the Court may acquit the accused. However, the Court has only to take into account all the surrounding facts and circumstances prevailing at or about the time of occurrence. " On close scrutiny of the testimony of eye-witness Ratan Lal (PW. 1) we find it consistent qua the appellant Samay Singh. Merely because in his earlier statement during the trial of other co-accused, Ratan Lal (PW. 1) had disclosed the involvement of Shanker as well in the crime and while giving the statement before the trial Court in the instant case has retracted from his earlier statement and denied the involvement of Shanker in the crime, does not in any manner, leads to the conclusion that his testimony which is found to be consistent with regard to accused Samay Singh is untrustworthy. In his statement Ratan Lal (PW. 1) has categorically stated as under:- *** It is relevant to notice that the eye-witness Ratan Lal (PW. 1) has clearly supported his version given out in his written report (Ex. P. 1a), which is the earliest version of the incident. The presence of the deceased persons Prabhu and Battilal in the village and house of the solitary eye-witnesses Ratan Lal besides their having gone to the field of Ratan lal and than for easing themselves in Nala is not only established on the basis of deposition of eye-witnesses, but also on the basis of statement of Uganti (PW. 2):- *** After considering the evidence on record in its entirety and objectivity, we are of the considered opinion that the eye- witness Ratan Lal is a witness of sterling worth, his testimony being cogent, convincing and reliable and being consistent to the medical evidence sufficiently proves the prosecution case. ;