Judgment:
Garg, J.
1. This appeal has been preferred by the accused appellant against the judgment and order dated 8.6.87 passed by learned Additional Sessions Judge, Barmer in Sessions Case No. 9/87 whereby the learned Additional Sessions Judge, convicted the accused appellant for offence under Section 304(II) I.P.C. in place of 302 I.P.C. and sentenced him to 4 years' R.I.
2. This appeal arises in the following circumstances :
(i) On 3.10.86 at about 8.30 p.m., P.W. 1 Harkha Ram lodged a written report Ex.P/1 with the police Station Ramsar stating that enmity between the family of P.W.1 Harkha Ram and that of accused appellant was going on and many cases were also pending in the Court and, therefore, accused appellant wanted to cause harm to the complainant party. On 3.10.86, his uncle's son Dhura Ram (hereinafter referred to as deceased) went to jungle for the purpose of grazing 'Rewar'. At about 2.30 p.m., seeing the deceased alone, the accused appellant gave beating to the deceased with an intention to kill him and hearing the cries of the deceased, P.W. 6 Rekha Ram reached on the spot and he saw that the accused appellant was beating the deceased with lathi and when P.W. 6 Rekha Ram intervened in the matter, the accused appellant ran away after leaving the deceased in injured condition. Thereafter, P.W. 6 Rekha Ram came in the village and informed P.W.1 Harkha Ram. Upon this, P.W.1 along with P.W.2Jesa Ram and P.W.3 Thakar Ram went on the spot, where the deceased also told that he was beaten by lathi by the accused appellant and at that time, blood was oozing out from his mouth and he was vomiting also and when he was brought to Dhani, he succumbed to his injuries.
3. On this report Ex.P/1, police chalked out regular FIR Ex.P/9 and started investigation.
4. During investigation, post mortem of body of the deceased was got conducted by P.W. 7 Dr. M.M. Purohit on 4.10.86 and the post mortem report is Ex.P/8.
5. The accused appellant was got arrested on 8.10.86 through fard Ex.P/13.
6. After usual investigation the police submitted challan against the accused appellant for offence under Section 302 I.P.C. in the Court of Magistrate from where it was committed to the Court of Additional Sessions Judge, Barmer.
7. That on 2.2.87, the learned Additional Sessions Judge framed charge for offence under Section 302 I.P.C. against the accused appellant who pleaded not guilty and claimed trial.
8. During trial, 8 witnesses were produced by the prosecution and thereafter statement of accused appellant under Section 313 Cr.P.C. was recorded and four witnesses were examined in defence.
9. After conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 8.6.87 convicted the accused appellant for offences under Section 304(II) I.P.C. in place of Section 302 I.P.C. and sentenced him as stated above inter alia holding :
That it was not clear as to how the incident took place and since there was earlier report by one Mohabbat Ram against the deceased, therefore, he came to the conclusion that act of the accused was covered by the provision of Section 304(II) I.P.C. in place Section 302I.P.C.
10. Aggrieved from the said judgment, this appeal has been filed by the accused appellant.
11. In this appeal, following submission has been made on behalf of the accused appellant :
Since in this case, there is only one sole eye witness i.e. P.W.6 Rekha Ram, therefore conviction cannot be based on the sole testimony of P.W. 6 Rekha Ram and further more, he is an interested witness as he is relative of the deceased, therefore, no reliance should have been placed on the testimony of P.W. 6 Rekha Ram and findings of conviction on the basis of testimony of P.W. 6 Rekha Ram should be set aside.
(ii) That if the Court places reliance on the testimony of P. W.6 Rekha Ram even then the case does not travel beyond provisions of Section 325 and 323 I.P.C. and conviction of the accused appellant for offence under Section 304(II) I.P.C. was wrongly recorded by the learned additional Sessions Judge and thus, the appeal should be allowed in this manner.
12. On the contrary, the learned P.P. has opposed the submission made by the learned counsel for the appellants and submits that the judgment and order passed by the learned trial Judge are based on proper appreciation of evidence and do no call for interference. Hence the appeal be dismissed.
13. I have heard both.
14. To appreciate the above contention, first medical evidence in the present case has to be seen.
15. The post mortem report of the deceased is Ex.P/8 and there is no dispute on the point that the incident took place on 3.10.86 and on the same evening the deceased died. To prove the post mortem Report Ex.P/8, P.W.7 Dr. M.M. Purohit has been produced by the prosecution.
16. P.W. 7 Dr. M.M. Purohit states that on 4.10.86 as medical jurist, Government Hospital, Barmer, he conducted post mortem of the deceased and found following injuries on his person:
1. Abrasion- 10 cm x 10 cm on the lt. elbow.
2. Lacerated -wound 2 cm x 2cm x 2cm on lt. Shoulder
3. Abrasion - 10 cm x 10 cm. on Rt elbow on posterior side.
4. Abrasion- 4cm x 4cm on interior side of Rt. elbow.
5. Abrasion- 1 cm, x 1 cm. on Rt. Wrist
6. Abrasion- 3cm. x 3 cm. on Rt. hypo chodriam transverse in length.
7. Abrasion- 2 cm. x 2 cm. on lt. lumber region.
8. Abrasion- 1 cm x 1 cm below the cembliars.
9. Abrasion- 3cm. x 2 cm on Lt. scratal region.
10. Lacerated wound - 3cm x 3cm x 1 cm on the Rt. scapular region on the upper end.
11. Bruise - 15cm. x 6 cm. on Rt. buttock.
12. Lacerated wound - 2cm. x 2cm bone deep on the middle of Rt, leg,
13. Lacerated wound- 1cm. x 1cm. x 1 cm. on Lt. toe.
14. Bruise - 15cm x 15cm on It side of Buttock.
15. Bruise- 10cm x 10cm on the rt. side of back.
16. Bruise- 8 cm. x 8 cm on the Lt scapular region.
17. Bruise- 10cm x 80 cm on Rt. Scapular region at lower and Middle part of chest on the back.
17. P.W. 7 Dr. M.M. Purohit has further opined that he found fracture of 9th and 10 ribs and the cause of death as opined by P.W.7 Dr. M.M. Purohit was haemorrhage in Rt. Pleural cavity and haematoma of Rt. lung and injury to lung.
18. Thus, from the post mortem report Ex.P/8, it is clear that the deceased received as many as 17 injuries on his body and he died on the same day and, therefore, in the above circumstances, the death of the deceased may be classified as homicidal.
19. The next question to be considered is whether the above injuries on the person of the deceased was caused by the accused appellant or not.
20. In the report Ex.P/1 there is specific mention of the fact that P.W.1 Harkha Ram was informed by P.W.6 Rekha Ram that the deceased was beaten by the accused appellant with lathi.
21. P.W.6 Rekha Ram in his statement has clearly stated that after hearing cries of the deceased, he went on the spot and he saw that the deceased was being beaten by the accused appellant with lathi and condition of the deceased at that time was serious one. He further stated that then he informed P.W.1 Harkha Ram. This witness has been examined at length, but nothing has come out in the cross-examination which affects his veracity and it does not appear that P.W. 6 Rekha Ram has given the statement to implicate the accused appellant falsely.
22. The statement of P.W.6 Rekha Ram further gets corroboration from the medical evidence which is found in the statement of P.W.7 Dr. M.M. Purohit and not only this, statements of P.W.1 Harkha Ram, P.W.2 Jesa Ram and P.W.4 Thakar Ram also support the statement of P.W.6 Rekha Ram on the point that after the incident P.W.6 Rekha Ram informed the first informant P.W. 1 Harkha Ram and thereafter P.W.1 Harkha Rarn along with P.W.2 Jesa Ram and P.W.3 Thakar Ram went on the spot where the deceased was found and from the statements of P.W.1 Harkha Ram and P.W.6 Rekha Ram it is also clear that the deceased also told that he was beaten by the accused appellant. In these circumstances, the injuries which have been mentioned in the post mortem report Ex.P/8 on the person of the deceased were caused to him by the accused appellant and none else.
23. Simply because in this case there is only one eye witness, the testimony of P.W.6 Rekha Ram cannot be doubted. According to Section 134 of the Evidence Act no particular number of witnesses shall in any case be required for the proof of any fact. In India the evidence has to be weighted and not counted. The Hon'ble Supreme Court in the case of Mikiyath Singh v. State of Punjab, 1991 (2) Crimes SC 191 has held as under :
'It is settled law that corroboration is not rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of solitary witness. The occasion for the presence at the lime occurrence, opportunity to witness the crime, the normal conduct of the witness to the victim, his predisposition towards the accused, are some of the circumstances to be kept in view to weight and accept the ocular evidence of a witness. It is not the quantum of the evidence, but its quality and credibility of the witness that leds assurance to the court for acceptance.'
24. Where the evidence of sole eye witness did not suffer from any serious infirmity, his evidence should not be discarded and conviction can be based on his testimony. For this, a judgment of Hon'ble Supreme Court in the case of Balbir Singh v. State of punjab, AIR (SC) 2231 may be referred to.
25. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions of law may be safely stated :
(i) As a general rule, a court can and may act on the testimony of a single witness, though uncorroborated. One credible witness out-weight the testimony of a number of other witnesses of indifferent character.
(ii) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness whose evidence is that of an accomplice or of an analogous character.
(iii) Whether corroboration of the testimony of single witness is or in not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
26. Since in the present case, evidence of P.W.6 Rekha Ram does not suffer from any basic infirmity and his name is mentioned in the report Ex.P/1 which was lodged by P.W. 1 Harkha Ram on the same day and his statement further gets corroboration from the medical evidence and other evidence, therefore in such circumstances, if the learned additional Sessions Judge has placed reliance on the testimony of P.W.6 Rekha Ram, by doing so, he has committed no mistake and thus, the evidence of P.W.6 Rekha Ram is reliable to prove the fact that the injuries on the person ofdeceased were caused by the accused appellant. Therefore, it is held that the injuries on the person of deceased were caused by the accused appellant and the findings of learned Additional Sessions Judge in this respect are liable to be confirmed one and statement of P.W.6 Rekha Ram is found reliable.
27. The next question which arises for consideration is whether by causing above injuries, what offence the accused appellant has committed.
28. The learned Additional Sessions Judge came to the conclusion that by causing the injuries on the person of the deceased as mentioned in the post mortem report Ex.P/8, the accused appellant committed offence under Section 304(II) I.P.C. in place on Section 302 I.P.C. and it is to be seen whether these findings of the learned Additional Sessions Judge are correct one or not.
29. The learned counsel for the accused appellant has argued that the case does not travel beyond provisions of Section 325 I.P.C. as there was no intention on the part of the accused appellant to kill the deceased and further more it is not clear as to why beating was given to the deceased by the accused appellant.
30. To appreciate the above contention, it may be stated here that from the post mortem report Ex.P/8 and looking to the injuries which are found on the body of the deceased, it appears that he received as many as 17 injuries and P.W.7 Dr. M.M. Purohit also found fractures in ribs and most of the injuries were found on the elbow joint, shoulder, lumber region, scapular region, legs, buttocks and chests. There is also no dispute in this case that the deceased died on the same day and it is not a case of single injury, but it is a case of 17 injuries along with fracture of ribs.
31. The word 'Culpable homicide' has been defined in Section 299 I.P.C. Section 299 is divided into three parts. The first part refers to the act by which the death is caused by being done with the intention of causing death. That part corresponds to the first part of Section 300. The second part of Section 299 speaks of the intention to cause such bodily injury as is likely to cause death. This has corresponding provisions in Clause II 'Secondly and 'Thirdly' of Section 300 I.P.C. Section 304 Part I covers cases which by reason of the exception under Section 300 are taken out of the purview of Clauses (1), (2) and (3) of Section 300, but otherwise would fall within it and also clauses which fall within the second part of Section 299 corresponds to clause 'Fourthly' of Section 300, Section 304, Part II I.P.C. covers those cases which fall within the Third part of Section 299 but do not fall within the Fourth clause of Section 300.
32. In Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577 the Hon'ble Supreme Court has made a distinction very well between a case falling under Section 304 Part I or 304 Part II in the following manner :
'A question now arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death, then he would be guilty under part I. On the other hand if before the application of any of he Exceptions of Section 300 it is found that he was guilty of murder within the meaning of Clause '4thly', then in question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not part I.'
33. When the element of intention is missing and there is knowledge in such case, the injury inflicted would be covered under Part II of Section 304 I.P.C. So where the accused has knowledge, but no intention that such blow was likely to result in death, it would be held that the offence committed would be culpable homicide not amounting to murder punishable under Part 11 of Section 304 I.P.C. Hence, the case of the accused appellant is covered by Clause IV of Section 300 I.P.C.
34. From the facts of the present case, it appears that in this case, as per the statement of P.W.1 Harkha Ram, there was enmity between the complainant party and accused party and the deceased received 17 injuries on various parts of his body. It is also very much clear that on the head, no injury was caused by the accused appellant. In these circumstances, it can easily be said that the accused appellant had knowledge that by causing such injuries the death could result, but he had no intention to cause death of the deceased. Thus, the findings of learned Additional sessions Judge that the act of accused appellant falls under the provisions of Section 304(II) I.P.C. in place of Section 302 I.P.C. are liable to be confirmed one.
35. The argument of the learned counsel for the accused appellant that the act of the accused appellant does not fall beyond the provisions of Section 325 or 323 I.P.C. is not tenable because of the simple reason that in the present case many blows were given by the accused appellant on the person of the deceased and as per the statement of P.W.1 Harkha Ram, it is also clear that blood was oozing from his mouth and the deceased was vomitting also and he died on the same day and even before lodging the report. P.W.7 Dr. M.M. Purohit has also opined that cause of death was haemorrhage in Rt. Pleural cavity and haematoma of Rt. Lung and injury to lung. This also shows that death has resulted because of injuries received by the deceased. Thus, there is clear nexus between the death of the deceased the injuries received by him. Hence the argument of the learned counsel for the appellant that the present case would fall under the provisions of Section 325 I.P.C. stands rejected because of the reasons just stated above.
36. In support of his contention, the learned counsel for the accused appellant has placed reliance on the following judgments :
(1) G.S. Walia v. State of Punjab and Ors., 1998 (5) SCC 150
The facts of the present case stand distinguished from the facts of that case as in that case, no serious injury was found on the vital part of the body, while in the present case, there were fractures in the ribs and injuries to lungs also. Therefore, this authority would not be helpful to the accused appellant.
(2) Shyamji v. State of Rajasthan, 1993 Cr.L.J. 2458
So far as this authority is concerned, the same would not be helpful to the accused appellant as in that case only three simple injuries were found on the body of the deceased, while in the present case, 17 injuries with fractures in ribs were found on the body of the deceased.
(3) Gordhan & Janki Lal v. State of Raj., 1996 RCC (April) 222.
So far as this authority is concerned, the same would also not be helpful to the accused appellant as in the present case injuries are large in number than the injuries in that case.
(4) Sridevi v. State, 1974 Cr.L.J. (Allahabad) 126
The facts of the present case stand distinguished from the facts of that case as in that case, no serious injury was found on the vital part of the body, while in the present case, there were fractures in the ribs and injuries to lungs also. Therefore, this authority would not be helpful to the accused appellant.
37. Similar to the facts of the present case, there is a case of Hon'ble Supreme Court Sunda Ram v. State of Andhra, JT 2000 (10) SC 443. In that case, the accused of that case was convicted for offence under Section 304(II) I.P.C. in place of Section 302 I.P.C. and medical evidence of that case revealed that clotted blood was found in pleural cavityand lungs were perforated. Similarly in this case hemorrhage in Rt. Plural cavity and haematoma of Rt. Lung and injury to lung was found. Thus the present case is squarely covered by the case of Sunda Ram (supra) where the Hon'ble Supreme Court convicted the accused of that case for offence under Section 304(II) I.P.C. in place of Section 302 I.P.C.
38. Thus, the findings of the learned Additional Sessions Judge that the accused appellant committed offence of homicide not amounting to murder punishable under Section 304(II) I.P.C. in place of Section 302 I.P.C. are liable to be confirmed one and the appeal of the accused appellant against him conviction is liable to be dismissed.
On the Point of Sentence
39. It may be stated here that the accused appellant was sentenced to 4 years' R.I. for offence under Section 304(II) I.P.C. Since the learned Additional Sessions Judge has already taken lenient view in awarding sentence to the accused appellant, therefore, no further leniency is required.
For the reasons mentioned above, the present appeal filed by the accused appellant Kewla Ram is dismissed after confirming the judgment and order dated 8.6.87 passed by the learned Additional Sessions Judge, Barmer by which the accused appellant was convicted for offence under Section 304(II) I.P.C. in place of Section 302 I.P.C.
Since, the accused appellant is on bail, he shall surrender before the trial Court for serving out remaining period of sentence.