N. Surjamani Singh, J.
1. The appellant, namely, Rajen Limboo alias Purkey Subha has been convicted for commission of the offence under Section 302, I.P.C. and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5,000/- (Rupees five thousand) only in terms of the related Judgment and Order on Sentence on 11-7-2002 and 18-7-2002 respectively passed by the learned Sessions Judge (E and N), Sikkim at Gangtok in Criminal Case No. 13 of 2001 which is the subject-matter under challenge in this Criminal Appeal.
2. We have heard Mr. B. Sharma, learned Counsel for the accused-appellant and also Mr. N.B. Khatiwada, learned Addl. Public Prosecutor assisted by M.J.B. Pradhan for the State-respondent.
3. The facts of the case, in a short compass, are as follows :--
(I) On 14-12-2000 at about 4 p.m. one Surya Prasad Acharya, P.W. 7 made a verbal report to one Lalita Rai, P.W. 1, member of Sama Lingum Gram Panchayat to the effect that the accused-appellant had killed one Dawa Rinzing Bhutia at Daraily Forest and accordingly, the said Smt. Lalita Rai submitted a written complaint to the Officer In-charge, Sardar P. S., Gangtok, Sikkim and on the basis of the said written complaint, the police took up the investigation of the case being Sardar P. S. Case No. 122 (12) 2000 dated 14/12/2000 under Section 302, I.P.C. and the investigating officer initially arrested six persons including the present accused-appellant. However, those accused persons except the present appellant were released as there was no evidence/case against them, but the investigating officer submitted charge-sheet as against the present accused-appellant on the basis of the available material/evidence, for committing the offence under Section 302, I.P.C. As the accused-appellant pleaded no guilty to the charges levelled against him, the trial was proceeded and the prosecution in support of its case examined as many as 11 witnesses but the defense did not produce any independent witness in support of its case.
(II) After protracted trial, the accused-appellant was convicted for committing the offence under Section 302, I.P.C. and sentenced him to undergo rigorous imprisonment for life with a fine of Rs. 5,000/- and in case of default of payment of such fine the accused-appellant shall be liable to undergo further imprisonment for six months rigorous imprisonment under the impugned Judgment and order on sentence. Being aggrieved by the impugned order of conviction and order on sentence, the accused-appellant preferred this appeal.
4. Supporting the case of the accused-appellant, Mr. B. Sharma, learned Counsel contended that the learned trial Court had completely nils-appreciated the evidence on record, rather erred in law and facts in coming to the conclusion that the accused-appellant committed the murder of Dawa Rinzing Bhutia. It was also argued that the prosecution could produce and examine only one eye-witness, namely, Surya Prasad Acharya whose evidence confined to the factum of chasing of Dawa Rinzing Bhutia (now deceased) by the accused-appellant and assault on the head of Dawa Rinzing Bhutia with a 'bamphok' and about his (Surya Prasad Acharya) shouting by running away from the place of occurrence towards the village but the written report seeks about the killing of Dawa Rinzing Bhutia by the accused-appellant by chopping which is quite contradictory to each other and the learned trial Court had failed to examine or consider this Contradictory statement while convicting the accused under Section 302, I.P.C. and apart from that, there is no corroborative evidence to the statement of Shri Surya Prasad Achaya, in other words, the evidence of a solitary/single eye-witness, namely, Surya Prasad Acharya is not supported or corroborated by any other prosecution witness and as such, the conviction of the accused-appellant based on such statement of a solitary eye-witness is not tenable in the eye of law. Mr. B. Sharma, learned Counsel went on to contend that the prosecution has also failed to establish the 'bamphok' in question marked Exbt. I is the same/crime 'bamphok'. P.W. 7 Surya Prasad Acharya deposed that he saw the accused-appellant assaulting the victim only once and whereas the medical report established the fact that there are multiple injuries on the body of the victim and, as such, the statement about a single blow as deposed by the said witness which caused the death of the victim even assuming, cannot attract the ingredients of Section 302, I.P.C. Mr. Sharma argued. It is also submitted by Mr. Sharma that the F.I.R. (Exbt. P1) is a hearsay evidence and, as such, it cannot be relied upon and apart from that, there is delay in lodging the said F.I.R. and, moreover, there is no corroborative evidence of the prosecution witnesses and that being the position, the learned trial Court ought to have acquitted the accused-appellant instead of convicting him under the impugned judgment.
5. Mr. N.B. Khatiwada, learned Addl. Public Prosecutor, at the hearing, submitted that conviction can be made on the basis of the evidence/testimony of a solitary eye-witness and also solitary injury in the light of the facts and circumstances of the case, It is also argued by the learned Addl. Public Prosecutor that in the instant case, the prosecution has proved the case and, accordingly, the learned trial Court has rightly convicted and sentenced the accused-appellant and, as such, there is no infirmity or illegality in the impugned Judgment and Order on Sentence.
6. Now, this Court is to see and examine as to whether the accused-appellant could make out a case to justify interference with the impugned Judgment on conviction and Order on Sentence or not
7. From the available material-evidence on record, it is seen that the police/I.O. had investigated the case and initially arrested the accused-appellant and other 5 persons, namely, Ganga Bahadur Chettri, Bir Bahadur Chettri, Birkhaman Gurung, Bir Bahadur Tamang and Dhan Kumar Tamang in connection with the case and they were subjected to thorough interrogation and finding no complicity or materials as against those 5 persons other than the accused-appellant, those 5 persons were released. During the course of interrogation, the accused-appellant admitted that he had committed offence. Inquest was done/conducted on the dead body of the deceased Dawa Rinzing Bhutia by the I.O. and the police recovered one blood-stained 'bamphok' in presence of witnesses, namely, Bhalu Bhutia and Hart Prasad Chaplagai and the seized crime weapon, which is marked as Exbt.I. The I.O. prepared for seizure memo marked Exbt. P2. The inquest report was also prepared and marked Exbt. P3 and during the inquest, the I.O. found/noticed the following injuries on the dead body of the deceased:--
'i) incised wound on the left side of the face cutting the lower jaw and causing gaping of the mouth,
ii) incised wound on the left side of the face near left eye,
iii) three incised wound on top of head,
iv) incised chop wound about right elbow,
v) incised chopped wound of right wrist separating the right hand,
vi) incomplete chopped wound on left wrist,
vii) incised chopped wound on the right thigh,
viii) multiple scratches over both knees and both legs,
ix) Bruises on the back.'
P.W. 8 Dr. S. D. Sharma conducted postmortem examination on the dead-body of the deceased Dawa Rinzing Bhutia and detected the following injuries :--
'1. incised gaping would 20 x 8 cms. Oral cavity deep obliquely placed over the right side of the face completely resecting the cheek muscles and right ramous of the mandible, , cleanly cut, exposing the tongue, with cut fracture of premolar and canine teeth on the right side of the lower jaw.
2. incised wound obliquely placed over the left side of the face adjacent to the left eye measuring 6 x 2 x 1 cms.
3. 3 incised wounds placed over the parietal region of scalp centrally, intersecting each other and resecting the scalp completely and producing a cut fracture of the outer table of the parietal bone.
4. incised chop wound of the right wrist, completely severing the tendons, both bones of the forearms, vessels and nerves, completely separating the right hand which was brought separately.
5. incised chop wound of the left wrist completely severing the tendons and both bones of the forearm and the hand was held to the arm only by a tag of skin.
6. incised wound 6 x 2 x 1 cms, on the lower end of the right arm.
7. Incised wound 7 x 2 x 1 cms. over the right leg.
8. Multiple contused abrasions on both knees and legs.
9. Contused abrasion 3 x 3 cms, over the spinal column in the lumber region.'
Doctor prepared Medico Legal Autopsy Report, Exbt, P5 and handed over the same to the police which bears his signature marked Exbt. P.5(a). The I.O. also seized articles for forensic examination and lastly, the I.O. was of the view that a prima facie case has been made out as against the accused-appellant for committing offence under Section 302, I.P.C. and after completion of the investigation, I.O. submitted the charge-sheet against the accused-appellant.
8. Relying upon and giving emphasis to the Inquest Report and the Medico Legal Autopsy Report, Mr. B. Sharma, learned Counsel mainly confined his argument that there are multiple injuries as seen in the documents marked Exbt. P3 and P5 on the dead body of the deceased which shows that there were numbers of blows, but the eyewitness P.W. 7 speaks about one blow and that being the position the statement of P.W. 7 Shri Surya Prasad Acharya cannot be relied upon, rather the same is not corroborated by any other evidence on record. At this stage, we may recall the relevant statement of P.W. 7. P.W. 7 Surya Prasad Acharya, a solitary eye-witness deposed that he saw the accused-appellant chasing Dawa Rinzing Bhutia and assaulting on the head of Dawa Rinzing Bhutia with a 'bamphok' and thereafter, he ran away from the place towards the village shouting that Dawa Rinzing Bhutia has been assaulted with a weapon by the accused Subba. This statement is unshaken and that the same holds its field and even in the cross-examination, the witness P.W. 7 stated that he saw the accused victim chasing only with a short 'bamphok' and since he ran away from the place of occurrence, he did not see then whether the victim died or not. Therefore, we are of the view that the accused-appellant assaulted Dawa Rinzing Bhutia with a 'bamphok' and that the said witness saw the accused assaulting the victim only once with a 'bamphok' (crime weapon). Here is also evidence on record that the deceased fell down on the ground and that the daraily forest is a thick forest and there are many standing trees. From the available evidence on record it is also seen that there are circumstantial evidence for establishing the factum of multiple injuries as seen in the documents marked Exbt. P3 and P5 sustained by the deceased at the time of occurrence,
9. Now a question or an issue has come up as to whether conviction on the basis of evidence/testimony of a single eye-witness the like P.W. 7, can be made or not? We hereby answer as 'Yes' in the instant case for the following reasons :--
It is an admitted position that the accused-appellant chased Dawa Rinzing Bhutia and assaulted with a 'bamphok' on the head of the deceased, This is the statement of a solitary eye-witness, namely, P.W. 7 Surya Prasad Acharya who also deposed that on the day of the occurrence in the morning he had gone to Daraily forest to cut fodder and while he was taking out his shoes to climb up a tree to cut grass, he heard noise 'sangrangrang' in the nearby and then he saw the accused-appellant chasing Dawa Rinzing Bhutia. The evidence pertaining to recovery and the seizure of blood-stained 'bamphok' (crime weapon) from underneath the bed of the accused-appellant remained intact which cannot be controverted by the defence and apart from that, the seizure memo Exbt. P2 was proved by the prosecution. The medical expert/witness, particularly, Dr. S.D. Sharma, P.W. 8 deposed that the injuries were ante mortem and fresh before death and were sufficient to cause death in ordinary course of nature. Considering the existing facts and circumstances of the case as well as the evidence on record, we are of the view that a single or solitary eye-witness P.W. 7, namely Surya Prasad Acharya whose testimony is found to be entirely reliable and as such, there is no legal impediment to the conviction of the accused-appellant under Section 302, I.P.C. We made this observation that the guilt of the accused-appellant has been proved by the evidence/testimony of single/solitary eye-witness P.W, 7 Shri Surya Prasad Acharya which is also corroborated by ether evidence on record. We also opined that there is no evidence on record of establishing the innocence of the accused-appellant. According to us, learned trial Court had dealt with the evidence on record, particularly the testimony of P.W. 7 and found that the evidence of P.W. 7 is trustworthy and came to the conclusion about the guilt of the accused-appellant under impugned Judgment and Order on Sentence.
At the time of examination of the accused-appellant under Section 313, Cr.P.C., he stated thus -- 'It is not correct that I am known as Purkey Subba, My name is Rajen Subba.' In other words, he is Rajen Subba not Purkey Subba who is involved in the present case. The accused-appellant also stated that the incident took place at Daraily forest where Dawa Rinzing Bhutia was killed by Shri Surya Prasad Acharya, P.W. 7 and Shri Surya Prasad Acharya also hit him on his head with a stone. This is the plea taken by the accused-appellant at the time of examination under Section 313, Cr.P.C. However, it is seen from the available material of record that the accused-appellant did not establish his innocence of the charges levelled against him, inasmuch as he did not make even an attempt to make out a case that he is Rajen Subba not Purkey Subba, in other words, he did not take such defence plea at the time of the examination of the prosecution witnesses and, the defence did not put forward any suggestion to these witness particularly, P.W. 7.
10. In terms of the provision of Section 134 of the Indian Evidence Act 1872, no particular number of witnesses shall in any case be required for the proof of any fact and in view of it, if the testimony of an eye-witness is wholly reliable, the Court may come to the conviction of the accused person and that the Court is not supposed to insist upon plurality of witness for establishing a case if the circumstances required only the evidence or testimony of a single eye-witness. At this stage, we hereby make a reference to a decision of the Apex Court rendered in Vadivelu Thevar v. State of Madras and Chinniah Several v. State of Madras reported in AIR 1957 SC 614 : (1957 Cri LJ 1000) wherein the Apex Court held thus :--
'In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that 'no particular number of witnesses shall, in any case, be required for the proof of any fact.' The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' -- 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that 'Evidence has to be weighed and not counted.' 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 subordinate 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, but 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.'
Similarly, in a case between VahulaBhushan alias Vehuna Krishna v. State ofTamil Nadu reported in AIR 1989 SC 236 :(1989 Cri LJ 799) the Apex Court heldthus :--
'The instant appeal on special leave has been filed against this judgment and order. It has been urged on behalf of the appellant that the Courts below should not have convicted the accused on the sole testimony of P.W. 1 as the same was not corroborated by the evidence of any other witness. This contention is unsustainable in as much as there is no rule of law that the testimony of a single witness cannot be accepted and the conviction cannot he based on such evidence, if believed. The testimony of a single witness if it is straight-forward, cogent and if believed is sufficient to prove the prosecution case, the conviction can be made on the testimony of such a single witness.
In the case of Vadivelu Thevar v. State of Madras, 1957 SCR 981 : (1957 Cri LJ 1000) the appellant was convicted on a charge of murder on the sole testimony of a witness. The question arose whether such a conviction can be sustained or not. It was held that there was no statutory requirement that a conviction cannot be made on the testimony of a single witness unless it is corroborated. The Court can accept the evidence of a single witness though uncorroborated and convict an accused except in cases where the nature of the testimony of the single witness itself required, as a matter of prudence, that corroboration should be insisted upon, as in the case of a child witness, an accomplice or any others of an analogous character.'
Keeping in view of the above discussions and findings of this Court, we do not hesitate to hold that the trustworthy testimony of a single witness like P.W. 7 in the instant case cannot be rejected on fanciful grounds and if such testimony is to be rejected, it shall cause miscarriage of justice.
11. We have examined and judged the evidence available on record, particularly, the testimony of P.W. 7 by the yardstick of its intrinsic worth and the animus of witnesses, and made final analysis of it as highlighted above depending upon the facts of the present case. We also found that the testimony of P.W. 7 is trustworthy and the same is also ex facie of a convicting nature. This Court need not go more into depth as suffice is made with the above observations to opine that the prosecution has proved its case and accordingly, the learned trial Court rightly convicted the accused-appellant for committing the offence punishable under Section 302, I.P.C. and, sentenced the accused-appellant to undergo imprisonment for life with a fine of Rs. 5,000/- (Rupees five thousand) only, and in default of payment of such fine, he shall be liable to undergo further imprisonment for 6 months rigorous imprisonment under the impugned Judgment and Order on Sentence.
12. For the reasons, observations and discussions made above, we are of the view that the present appeal is devoid of merit and accordingly, it is dismissed, thus affirming the impugned Judgment on Conviction and Order on Sentence passed by the learned Sessions Judge (E and N) Sikkim at Gangtok in Criminal Case No. 13 of 2001.