D.M. Dharmadhikari, J.
1. This order shall dispose of both the appeals, Cr. Appeal No. 179 of 1989 and Crl. Appeal No. 205 of 1989 filed by the convict from jail.
2. The sole appellant stands convicted Under Section 302, IPC and sentenced to life imprisonment by the judgment dated 31st March 1989 of the Court of Sessions Judge, Datia.
3. The case against the accused is that at 2.00 hours in the night intervening 8th and 9th March 1985 while the deceased Phoolsingh was sleeping with his wife P.W. 19, Maya, in his house in village Neemdanda, Police station Diloripar, district Datia, the appellant entered the house and fired with a country made pistol in his hand, by which he shot at the deceased causing instantaneous death of . Phoolsingh.
4. The First Information Report was lodged by the village-watchmen, Ex. P/1, in out post police station Magroul and thereafter a regular First Information Report was recorded at Police station Disalipar, Ex. 13. The first report, Ex. P/1 was made promptly on 9-3-1996 at 7-30 in the morning. The distance of police chowki is stated to be 12 kms. away from the place of incident.
5. The prosecution, amongst other witnesses made a attempt to prove offence against the appellant by examining the wife of the deceased, P.W. Maya, who deposed that on hearing a fire shot she got up and saw the accused with a country made pistol was running away. According to her, she herself suffered burn injuries on her right arm. She was medically examined by Dr. S.K. Dubey, P.W. 14 and as per his report Ex. P. 20, there were found burn injuries 4' x 3' on her right arm. The prosecution also examined P.W. 13. Pyaralal (uncle of the deceased) who stated to have rushed to the spot on hearing the fire shot and claim to have seen the accused-appellant running away from the place of occurrence with a pistol in his hand. Similarly P.W. 16, Harcharan, one of the villagers, also rushed to the place of occurrence and Maya, P.W. 19, told him that it was the accused who fired at the deceased. The accused was arrested on 14-4-1995 vide Ex. P/10. It is the case of the prosecution that he had left behind a pair of Chappels, which was also seized vide Ex.P. 7 and identified by P.W. 22, Ramdayal as belonging to the accused.
6. On the above sole testimony of the alleged eye-witness, Maya and the medical evidence and other circumstantial evidence on record, the trial Court convicted the accused and sentenced him as mentioned above.
7. Shri B. Raj Sharma assisted with Shri B.D. Mishra, counsel appearing for the appellant, addressed the Court. The conviction is assailed firstly on the ground that the sole testimony of P.W. 19 Maya, should not be believed as, she admittedly was leading an immoral life and had illicit connections with the accused. Immediately, after falsely involving the accused in this criminal case she entered into marriage with Ramdin, Cousin brother of the deceased. It is submitted that the evidence is highly unnatural and improbable.
8. It is also argued that P.W. 13, Pyarelal and P.W. 16 Harcharan are not the eye-witnesses and they have also tried to falsely implicate the accused because of the past enmity. It is pointed out that pyarelal had filed a criminal report against the convict accused and in the witness box admits that his relations were sore with Pyarelal.
9. Shri Jai Prakash Sharma, learned Panel Lawyer, appearing for the State supported the judgment of conviction and states that there is a clear evidence of the wife, who was sleeping with the husband at the time when the accused fired with pistol in his hand, the fact that she had in the past some illicit relationship with the accused is in fact no ground to disbelieve her. Her remarriage with Ramdin an year after the incident should not be taken to be a circumstance to reject her testimony as untrue.
10. After hearing learned counsel for the parties and having carefully perused the testimony of P.W. 19, Maya, the sole eye-witness to the incident, we are of the opinion that it is unsafe to confirm the conviction of the appellant on her sole testimony. There are several aspects which impel us to give benefit of doubt to the appellant. In para 2 of her deposition, P.W. 19 Maya, admits that the accused had subjected her to sexual intercourse, but she did not, out of fear, reported the matter to the members of her family. In para 11 of her statement she admits that she had continuous sexual connection every day for two years with the accused. She admits that she was issueless. Thereafter she admits in cross-examination that she is remarried to Ramdin. It thus clear that P.W. 19 Maya is a women of easy morals. Her conduct also does not appear to us to be natural. It is the incident of shooting had taken place in her presence and against her wishes, it was expected of her to have tried to save life of her husband and in that attempt she would have been smeared with blood. It is also most unlikely that the person who committed the crime in the dead-night and if P.W. 19 had no complicity, the assailant would have spared her life.
11. The accused examined defence witnesses three in number and has also stated in the course of his examination Under Section 313, Cr. P.C. that P.W. 19, Maya had developed illicit relationship with Ramdin and to achieve her plan of remarriage, the appellant has been firstly implicated in this crime, it is settled that sole testimony of eye-witness can form basis of conviction but it should be of a sterling character. In the case where the testimony is not beyond suspicion we have to look for corroboration. We do not find any corroborative evidence on record. It is difficult to believe P.W. 13. Pyarelal, who is a relation of the deceased and was also on inimical terms with the accused that on hearing the pistol shot he rushed to the place of incident with such speed that could be to see the assailant running away with pistol in his hand. It has to be assumed that the incident might have taken place only a few minutes and it appears impossible for P.W. 13 who was not residing in the same house to have reached the spot so as to be able to see the assailant running away with a pistol in his hand. So far as the recovery of pair of Chappals is concerned, even if they are held to be belonging to the accused there is evidence on record that he was on visiting terms and was carrying a secret illicit relationship with P.W. 19, Maya. The recovery of Chappal is also not conclusive to be taken as a corroborative evidence. We find that it is extremely unsafe to hold the appellant guilty on the sole testimony of P.W. 19 Maya. The defence has made out a possibility of false implication of the accused-appellant in the crime. We, therefore, allow this appeal and acquit the accused by giving him benefit of doubt. Accused-appellant is in jail. He be set at liberty, if not required in connection with any other offence.