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Judgment
Kanwaljit Singh Ahluwalia, J—Prem Singh husband of Maina (P.W.1), as per prosecution was murdered on the night of 24.5.2003 at about 10:00 PM. The case of the prosecution is that Laxman Singh and his brother Doonger Singh had committed the murder of Prem Singh by throttling.
The court of Additional Sessions Judge, Kekri, District Ajmer vide impugned judgment dated 26.3.2004 held the appellant Laxman Singh guilty of offence under Section 302 IPC and the appellant Doonger Singh guilty of offence under Section 302/34 IPC. Section 34 IPC has been applied, because it is the case of the prosecution that Laxman Singh had throttled the neck and at that time, Doonger Singh was standing there armed with a stick. Having convicted the appellants for the aforesaid offences, the trial court vide a separate order of even date, sentenced them as under:--
"U/s 302 or 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs. 500/- each, in default of payment of fine, to further undergo six months R.I.
Aggrieved against their conviction and sentence, the appellants have instituted the instant appeal. The appellants are stated to be in custody from the last twelve years, one month and few days.
Udai Singh (P.W.13) presented a written report (Exhibit-P/17) before Ramesh Kumar (P.W.14), who was then posted as SHO, Police Station Bhinay. Ramesh Kumar (P.W.14) Investigating Officer in the court deposed that on 25.5.2003, he received an information that a dead body is lying in village Lamgara. He reached at the spot. Udai Singh (P.W.13) presented a written report. The inquest proceedings were carried, site plan of the spot was prepared and blood stained earth and controlled soil were lifted. Near the dead body, one bottle of Indian made foreign liquor was recovered. The said bottle was taken into possession vide memo Exhibit-P/3. Thereafter, the Medical Board conducted post mortem of the dead body.
We may notice here that after the post mortem was conducted, the entire prosecution case was changed to bring it in conformity with the medical evidence and new story was coined and Maina (P.W.1) wife of the deceased Prem Singh was introduced as solitary eyewitness. Before adverting to other evidence, we shall reproduce the first written report (Exhibit-P/17) submitted by Udai Singh (P.W.13) brother of the deceased Prem Singh before Ramesh Kumar (P.W.14) SHO, P.S. Bhinay. The report (Exhibit-P/17) when translated into English reads as under:--
"To
SHO Saheb Police Station Bhinay.
Sub:-- For taking legal action.
Sir,
In the above noted subject, it is submitted that I am resident of village Lamgara. Yesterday on the night of 24.5.2003 between 9:00 - 10:00 PM, my younger brother Prem Singh from his house had gone to the house of his in-laws at Lamgara. His wife was not sent alongwith him by his in-laws, due to this reason perhaps my brother has consumed some poisonous drug and has died on the way of Devaliya village. Today in the morning when people had gone to ease themselves, they learnt that Prem Singh is lying dead on the way. I am presenting the report. Legal action be taken."
The Medical Board consisting of Dr. Pratap Singh (P.W.9) and Dr. S.P. Sharma (P.W.10) on 25.5.2003 conducted autopsy on the dead body of Prem Singh. They opined that the duration between death and post mortem was 12 to 14 hours. It was a body of stout healthy male person, rigor mortis was present through out the body. Post Mortem staining was present on back and dependent parts of the body. It was noted in the Post Mortem Report (Exhibit-P/13) as under:--
"(i) Abraded bruise, 1.5 cm x 1 cm on right side anterolateral aspect of neck below mid point of body of mandible.
(ii) Bruise three in number on left side of neck anterolaterally (A) Bruise measuring 0.5 cm x 0.5 cm placed just below mid point of body of mandible of left side. (B) Bruise 0.5 cm x 0.4 cm just below above mentioned injury/A. (C) Bruise 0.3 cm x 0.3 cm just below above mentioned injury/B.
On dissection of neck-
The muscles of neck mainly sternodeidomastoid muscles on both side containing haematoma under lying subcutaneous tissue are ecchymosised. There is multiple fracture of thyroid cartilage and tracheal rings (upper three trachea rings). Blood clot present at fractured site and in the lumen of trachea. Hyoid bone on both side fractured (Inward fracture). Toncoid cartilage fractured. Carotid sheath in upper part on both side contains clotted blood.
On dissection of neck posteriorly there is fracture of body and transverse process of clavicle 1 and cervical 2 vertebrae. Spinal cord is lacerated at fractured site. Blood clots present at laceration site of spinal cord and fractured side of vertebrae."
As per opinion of the Medical Board, the cause of death was asphyxia as a result of throttling. It was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
We may highlight here that alleged murder was committed on the night of 24.5.2003 and the post mortem was conducted on 25.5.2003 at about 11:40 AM. For three days, there was muted silence on the part of the witnesses. For the first time on 28.5.2003, Tej Singh (P.W.6) on information relayed by Maina (P.W.1) his bhabhi and wife of the deceased Prem Singh, had presented the written report (Exhibit-P/10) before Ramesh Kumar (P.W.14). The written report (Exhibit-P/10) on the basis of which formal FIR (Exhibit-P/11) bearing No. 115/03 was registered at Police Station Bhinay, Ajmer, when translated into English reads as under:--
"To
SHO Saheb Police Station Bhinay.
Subject: Registration of case of murder.
Sir,
It is submitted that my elder brother Prem Singh was married with Maina, daughter of Prem Singh Rawal, resident of our village. He was having two daughters. 15-20 days before today, my bhabhi Maina was abused by my brother Prem Singh under the influence of liquor. She feeling annoyed, had gone to the house of her parents. Later she went to the house of her maternal uncle Kan Singh at Diggi. My brother Prem Singh on 22.5.2003 had gone to bring Maina back. Maina was not sent with him. Her maternal uncle Kan Singh on the same day brought her back to her paternal home. She was brought to her paternal home on 24.5.2003. My brother having learnt in the evening of 24.5.2003 had gone to the house of her in-laws to bring back Maina. He went to the house of his father-in-law, Prem Singh Rawal. Smt. Lalita Rao had seen him going. In the house of in-laws, my brother Prem Singh had a fight with Laxman Singh and Doonger Singh, both brothers of father-in-law of my brother. They both have committed the murder of my brother Prem Singh by throttling his neck and thereafter, had thrown his body on the way. Thereafter, they called Madan Mahajan for doing Jhara (exorcism), but he had not given exorcism and he was sent back. These facts were disclosed to me by my bhabhi Maina. She told me that she was restrained by uncle Doonger Singh, as the family reputation was involved. Therefore, she had not disclosed these facts earlier to anybody and to conceal the offence they had placed a bottle of liquor mixed with pesticides. Legal action be taken against Doonger Singh and Laxman Singh.
Date: 28.5.2003
Sd/- Tej Singh."
On the basis of above FIR, both the appellants Doonger Singh and Laxman Singh were sent for trial. They were charged for the offences under Sections 302, 302/34 and 201 IPC.
Before we advert to the testimony of solitary eyewitness Maina (P.W.1), wife of the deceased Prem Singh, we shall notice the evidence of the remaining witnesses.
Lalita (P.W.2) stated that five months before she was sleeping in her house. She heard barking of dogs and saw that Prem Singh was going on the village path. Next day she had seen the dead body of Prem Singh. The dead body of Prem Singh was lying on the path going towards the house of his in-laws.
Baldhan (P.W.3) stated in the court that five months before he was called by the police and in his presence, police lifted simple soil vide memo Exhibit-P/1 and blood stained soil vide memo Exhibit-P/2 and a bottle of liquor vide memo Exhibit-P/3.
Bhopal Singh (P.W.4) in the court stated that he had attested the arrest memos Exhibit-P/4 and Exhibit-P/5, whereby both the accused were arrested. This witness further stated that in his presence nothing was recovered. This witness specifically stated that no blood stained shirt of Laxman Singh was taken into possession in his presence but memo to this effect contains his signature. This witness further stated that the police had prepared site plan in his presence. This witness was declared hostile to the prosecution case and he was cross-examined by the learned Public Prosecutor and was confronted with his previous statement.
Madan (P.W.5) in the court stated that he was called by Doonger Singh on the pretext that health of his son-in-law Prem Singh has deteriorated and he require Jhara. This witness had gone along with Doonger Singh to the house of Prem Singh. All family members were sitting outside on the Chabutra and then Doonger Singh stated that the person to whom Jhara is to be given ran away from the house. The exact words of the witness are as under:--
Madan (P.W.5) further stated that when he had gone to the house of Doonger Singh, Prem Singh was not present there and he along with Doonger Singh had searched for the deceased Prem Singh.
Tej Singh (P.W.6) had presented the written report (Exhibit-P/10) on 28.5.2003, which is based on the information relayed by Maina (P.W.1) wife of the deceased and solitary eyewitness of the occurrence. This witness stated that the deceased Prem Singh was married with Maina 6-7 years ago and due to abuses given by deceased husband, her bhabhi had gone to Diggi. He went to bring her wife back, at that time, a fight had taken place and his brother Prem Singh was got arrested and was detained at the police station. When his brother learnt that Maina had returned back to her native village, then in the night at 10:00 PM, he went to the house of Doonger Singh and Laxman Singh to bring his wife back. There he had a quarrel with the accused.
Om Prakash (P.W.7) and Banna Lal (P.W.8) had attested the inquest (Exhibit-P/12). As already stated, Dr. Pratap Singh (P.W.9) and Dr. S.P. Sharma (P.W.10) had conducted the post mortem. Ram Singh (P.W.11) had taken sealed samples to FSL and Peeru Lal (P.W.12) being Head Constable, Incharge of Malkhana was examined to prove deposit of sealed packets and their deposit to FSL. Ram Singh (P.W.11) and Peeru Lal (P.W.12) were examined to prove link evidence.
Udai Singh (P.W.13) another brother of the deceased Prem Singh had presented the written report (Exhibit-P/17). This witness in the court stated that on the day when the dead body was taken from the spot, he had seen the dead body of Prem Singh and had found that his neck was pressed and there was an injury on the nose. In cross-examination, this witness stated that he dictated the report to Om Prakash (P.W.7). He had handed over the report to the police at the spot. The whole village had gathered around the dead body. This witness further stated that when the report was presented, he had suspicion that brother has been murdered. Later on witness clarified that he entertained no suspicion. This witness further stated that on 25th then said that on 26th he learnt that Prem Singh has been murdered by the accused. The wife of the deceased Prem Singh had informed him and his brother on 26th. Maina had arrived at their house on 25th and she had narrated about the occurrence. Maina had come to their house on her own. This witness further stated that he is not aware as to who were present in the house when the dead body was lying. This witness further admitted to be correct that his brother was staying separately from them. This witness further admitted to be correct that the partition between the brothers had taken place.
Ramesh Kumar (P.W.14) being investigating officer proved various facets of the investigation.
Admittedly, Maina (P.W.1) is solitary eyewitness of the occurrence. The Hon''ble Apex Court in the case of Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614 : (1957) CriLJ 1000 : (1957) 1 SCR 981 , qua solitary eye-witness had laid following rules of appreciation of evidence :--
"Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. 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, if it is found to be above reproach or suspicion of interestedness, 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. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
In the context of law laid down by the Hon''ble Apex Court, now we shall reproduce the evidence of Maina (P.W.1). This witness in the court stated that five months before the occurrence she was in her maternal home at the house of Doonger Singh. In the night, her husband came to take keys. She was sleeping inside. She came outside and saw that Doonger Singh and Laxman Singh both were having a fight with her husband. Doonger Singh was armed with stick. When she went forward to intervene, wife of Doonger Singh and Laxman Singh caught hold of her hands. Both Doonger Singh and Laxman Singh caught hold of the neck of the deceased Prem Singh and they were pressing the same. Her husband had died. Daughters-in-law of Laxman Singh and Doonger Singh and her mother brought her inside the room. This witness narrated the occurrence to Tej Singh (P.W.6) and Udai Singh (P.W.13). This witness stated that the accused had told her that in case she raises a noise she will be finished.
In cross-examination, this witness stated that on the next day of the death of her husband, she had gone to the house of her in-laws. This witness further stated that in the morning police had arrived. They made inquiries from her. The police had taken her thumb impression on the papers but she is not aware as to what was written on those papers. The police took her statement on the next day. This witness further stated that she had narrated to the police that her uncle Laxman Singh and Doonger Singh had given a threat to finish her. This witness further stated that when the police came on the next day, a mob had gathered there. The dead body of her husband was lying outside. This witness had not participated in the cremation as women of the area are restrained to go to cremation ground. On the next day many ladies had come to their house. This witness further stated that when other ladies had gone out to take bath, she had not stepped out of the house as wife of the deceased remain inside the house. This witness admitted that her husband and her in-laws had no enmity. This witness further stated that she had given Rs. 12,000/- as loan to her maternal uncle Kan Singh. In cross-examination, she stated that Laxman Singh was pressing the neck of his husband and Doonger Singh was standing there armed with stick.
Having read the statement of eyewitness. To us, Maina (P.W.1) is wholly unreliable witness. Our reason to disbelieve her can be summed up as follows:--
"Admittedly, parental house and the matrimonial house of Maina (P.W.1) are situated in one village named Lamgara. Maina (P.W.1) on 22.5.2003 left the house of her husband and had gone to the house of her maternal uncle Kan Singh at village Diggi. The deceased Prem Singh followed her and created ruckus. He was taken to police station and was detained there. Thereafter, Kan Singh brought Maina (P.W.1) to her parental house at Lamgara. On the night of 24.5.2003 at around 10:00 PM, it is the case of the prosecution that the deceased Prem Singh had gone to bring his wife back but he was turned out of the house. This was the story narrated on 25.5.2003 by Udai Singh (P.W.13). It is the case of the prosecution that dead body was lying on the passage and a bottle of liquor was found near the dead body. The bottle of liquor was taken into possession vide memo Exhibit-P/3. There is no report of FSL on the record regarding the contents of the bottle of liquor. It has come in the evidence that Madan (P.W.5) was brought to do (jhara) exorcism. Madan (P.W.5) deposed that deceased ran away from the house of the accused."
Be that as it may, admittedly, Ramesh Kumar (P.W.14) SHO Police Station Bhinay had reached at the place where the dead body was lying on 25.5.2003. He had carried inquest proceedings. In inquest proceedings (Exhibit-P/12), he had noted presence of contusion on the neck. Udai Singh (P.W.13) also stated that they had seen injuries on the neck. It has come in the evidence of Maina (P.W.1) that on the next day she came to the house of her in-laws. At that time, the police was present in the village, she was questioned by the police but she had not given any version. This witness further stated that she had relayed the incident to Tej Singh (P.W.6) and Udai Singh (P.W.13), both these witnesses, like solitary witness remained silent and had not disclosed about the incident to any police official or co-villagers. It has also come in evidence that on 25.5.2003 when the cremation took place number of people had gathered, ladies were also present in the house. Maina (P.W.1), Tej Singh (P.W.6) and Udai Singh (P.W.13) who now make us believe that they knew about the occurrence had not disclosed anything to the police or to any co-villagers or as a matter of fact to any person. Had Maina (P.W.1) seen the occurrence, or knew about the occurrence, the first reaction of the witness was to disclose the facts to the villagers and even if we believe that she had narrated the occurrence to Tej Singh (P.W.6) and Udai Singh (P.W.13), nothing prevented them to disclose the incident to the police or to the others in the village especially when police was present in the village and had seen injuries on the neck. The silence on the part of the witnesses for a period of three days is not only baffling but leads to only conclusion that the witnesses had no version and the same as a result of consultations and deliberations to bring the same in consonance with the medical evidence was coined later. The conduct of Maina (P.W.1) who is wife of the deceased Prem Singh is totally improbable. We cannot rule out that since the deceased Prem Singh was taken to the police station at Diggi and was detained there, and Maina (P.W.1) was not willing to go with her husband, needle of suspicion was also towards her and to divert the same from herself at a belated stage she came out with present version.
Thus, taking totality of circumstances, we are of the view that it is not safe to rely upon the testimony of solitary witness Maina (P.W.1), who at a belated stage came forward and introduced herself as an eyewitness of the occurrence.
Consequently, we shall extend benefit of doubt to both the accused appellants, namely Doonger Singh and Laxman Singh. As a result of above discussion, the appeal is allowed and their conviction and sentence is set aside. They are acquitted of all the charges.