Rambahoran vs State of C.G.

Hon''ble Shri Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 25-04-2006 passed by 2nd Additional Session Judge (FTC), Ramanujganj, Surguja in Session Trial No. 226/2005. By the impugned judgment, accused/appellant Rambahoran has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. Case of the prosecution, in brief, is as under :--

On 18-03-2005, at about 12.00 noon, the appellant was saying that he will kill Hariprasad. At that time, Hariprasad was in the house. After taking lunch, Shivbrat (PW-1) went to pluck mahua and saw that Hariprasad was lying dead in the field and he had sustained injuries on his back and neck. He informed the incident to his father Ambikeshwar and lodged a report at Police Station, Basantpur where merg intimation (Ex. P-1) and First Information Report (Ex. P-2) were recorded. The Investigating Officer reached the place of occurrence, gave notice (Ex. P-3) to Panchas and prepared inquest (Ex. P-4) on the dead body of deceased Hariprasad. The dead body was sent to Community Health Centre, Vadrafnagar for post mortem examination vide Ex. P-12. Post mortem examination was conducted by Dr. Hiralal Singh (PW-8), who gave his report vide Ex. P-9, in which he found near about 6 injuries on the chest, neck and back of the deceased. He opined that the cause of death was haemorrhagic shock and cardio respiratory failure and the death was homicidal in nature.

In further investigation, plain soil and blood stained soil were seized from the place of occurrence vide Ex. P-6. Memorandum statement of the appellant was recorded u/s 27 of the Evidence Act on 15-05-2005 vide Ex. P-7. Patwari Prakash Sahu (PW-9) prepared spot map vide Ex. P-5.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ramanujganj who, in turn, committed the case to the Court of Session, Surguja, from where it was received on transfer by 2nd Additional Session Judge (FTC), Ramanujganj, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Aman Kesharwani, learned Counsel for the appellant argued that the trial Court erred in recording the appellant''s conviction as there is no any iota of legal and admissible evidence against the appellant for establishing the charge of commission of murder against him. The conviction of the appellant is based on the evidence of Shukvaro Bai (PW-3) but she is not a reliable witness. Her evidence is not cogent and credible, therefore, the conviction cannot be based on her testimony. The conviction and sentence awarded to the appellant are not sustainable.

On the other hand, Shri N.K. Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court.

We have heard learned Counsel for the parties at length and have also perused the record of Session Trial No. 226/2005.

The conviction and sentence u/s 302 IPC awarded to the appellant are based on the solitary testimony of Shukvaro Bai (PW-3). Leaned trial Court, in paragraph 27 of the impugned judgment, has discussed regarding admissibility of evidence of Shukvaro Bai (PW-3), in which it is held that the evidence of Shukvaro Bai (PW-3) is cogent and reliable.

It is not disputed that Shukvaro Bai (PW-3) turned hostile and at one instance, she did not support the prosecution case. When the learned trial Judge asked about the incident, she narrated that the appellant assaulted the deceased and when the defence counsel cross examined her, she specifically deposed that she did not see the incident.

It is well settled legal principle that while appreciating the evidence of solitary witness, the Court has to take into consideration whether contradiction/omission/improvement/inviolation etc. had been made so that they may materially affect the trial. Minor contradiction, omission or improvement on trivial matters without knowing the case of the prosecution should not be made the Court to reject the evidence in its integrity. The Court, after going through the entire evidence, must fairly know about the credibility of the witnesses.

Now, we shall examine whether the solitary evidence of Shukvaro Bai (PW-3) is reliable and can be based for conviction or not ?

In Sunil Kumar Vs. The State Govt of NCT of Delhi, , the Hon''ble Supreme Court observed thus :

In Vadivelu Thevar v. State of Madras this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under: (AIR p. 619, paras 11-12)

Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely :

(1) Wholly reliable.

(2) Wholly unreliable

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.

Vadivelu Thevar case was referred to with approval in the case of Jagdish Prasad v. State of M.P. This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

Shukvaro Bai (PW-3) deposed that on the date of incident, she had gone for picking mahua. She did not know and see the incident. At that time, Shivbrat (PW-1) and Kameshwar (PW-2) were present there, but the deceased was not present there. She further deposed that someone killed the deceased. She did not know who killed the deceased. After declaring hostile by the prosecution and cross examining by AGP, she deposed that the appellant assaulted the deceased with an Axe. The appellant gave 2 to 3 blows to the deceased and the deceased had fallen down. When the defence counsel cross examined her, she further deposed that it is true that she did not see the appellant there and in paragraph 10 in her cross examination, she specifically deposed that she did not see any incident.

Shivbrat (PW-1) deposed that he had gone for picking mahua. When he reached the place of occurrence, he saw that the deceased was murdered. He did not know who murdered the deceased. Kameshwar (PW-2) did not support the case of the prosecution.

In the instant case, the date and time of incident is 18-03-2005 at about 12 noon and merg intimation and FIR were recorded on 19-03-2005 at about 8.15 am and 8:25 am, respectively. In merg intimation, it is mentioned that :

From merg intimation (Ex. P-1) and FIR (Ex. P-2), it is evident that Shivbrat (PW-1) did not see the incident.

In criminal cases, normal discrepancies in the deposition of the witnesses due to normal errors of observation namely, errors of memory due to loss of time or due to mentally disposition whether the omission amounts to contradiction creating a serious doubt about truthfulness of the witnesses and other witnesses also make material improvement deposing in the court such evidence, cannot be safe to rely upon.

In the instant case, Shivbrat (PW-1) and Kameshwar (PW-2) did not support the case of the prosecution and Shukvaro Bai (PW-3) changed her statement frequently and she was not stable in her version.

From the facts and circumstances of the instant case and the above discussion, we find that the evidence of Shukvaro Bai (PW-3) is not cogent and reliable, therefore, the conviction cannot be based on her solitary evidence without corroboration.

The prosecution adduced the evidence of memorandum statement of the appellant but the weapon of crime, i.e., the Axe was not recovered, therefore, the evidence of memorandum is of no consequence and not useful for the prosecution.

We are of the view that the prosecution failed to prove the charge framed against the appellant, and for the reasons aforementioned, the impugned judgment cannot be sustained. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. The appellant is acquitted of the charge framed against him. It is stated that the appellant is in jail since 15-5-2005. He be set at liberty forthwith, if not required in any other case.