A.K. Mishra, J.:— This is an appeal U/s.383 of the Cr.P.C. preferred by the appellant-convict against the conviction U/s.302 of the Penal Code, 1860 (in short ‘the I.P.C.’) and sentence to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand), in default to undergo rigorous imprisonment for 3 (three) years vide judgment passed in S.T. Case No. 2/4 of 2006 dated 19.12.2006 passed by the learned Adhoc Addl. Sessions Judge, Champua, Keonjhar.
2. Prosecution case, in short, is that on 1.8.2005 at about 6 P.M. in village Roida Camp, the accused dealt ‘Dauli’ blows to the deceased causing bleeding injuries. The informant-son along with others on being informed took the deceased to hospital but he was declared dead. On that night written F.I.R. was lodged resulting registration of Barbil P.S. Case No. 174 dated 2.8.2005. Investigation was ensued. The accused was found in the village. He was arrested with ‘Dauli’ and one knife. The inquest over the dead body was made. Post-mortem (vide Ext.6) was conducted by Dr. N. Mahunta, he was expired on 23.08.2005. P.W.8-Dr. A.K. Dash gave opinion that the injuries found could be caused by the seized “Dauli”. The Investigating Officer had sent all those seized articles including that “Dauli” for Chemical Examination to S.F.S.L., Rasulgarh under Ext.13 but no report was exhibited. The statement of one independent witness-P.W.7 was recorded U/s.164 of the Cr.P.C. vide Ext-5 being sponsored by the Investigating Officer. After completion of investigation, P.W.9-Investigating Officer submitted charge-sheet. Basing upon which cognizance was taken by the learned JMFC, Barbil. The case was committed to the Court of Session. Accused faced trial for offence under Section 302 of the I.P.C.
3. In the trial, the accused took the plea of denial as well as insanity U/s. 84 of the IPC. The prosecution examined nine witnesses in all. Defence examined none. P.W.1 is the informant whose brother and mother are P.W.3 and P.W.6. P.W.4 is the witness to the seizure and inquest. P.W.5 is a witness to the seizure. P.W.2, a post-occurrence witness, is declared hostile. P.W.7 is an eye-witness. P.W.8 as stated above a Doctor who has not conducted post-mortem but proved the port-mortem report-Ext.6. P.W.9 is the Investigating Officer. The F.I.R., Inquest Report, Spot Map, statement U/s.164 of Cr.P.C. etc. are exhibited vide Exts.1 to 12. But what is not exhibited is the report of the Chemical Examination from S.F.S.L. The seized weapon of offence ‘Dauli’ was also not produced during trial.
4. Learned trial court concluded that the death of the deceased was homicidal in nature and the plea of insanity was not acceptable for want of medical evidence. He believed the eyewitness-P.W.7 and convicted and sentenced the accused supra.
5. Learned counsel for the appellant Mr. C. Sahu would buttress the following submissions:—
i. The sole eye-witness-P.W.7 is not reliable as the medical evidence disclosing six incised injuries is contradictory to ocular evidence that the accused dealt three blows.
ii. When the medical evidence is contradictory to the ocular testimony, the non-production of the seized weapon of offence and Chemical Examination Report creates doubt about the real perpetrator of the murder.
iii. The conduct of the accused that he was wandering with a ‘Dauli’ and did not flee away after commission of crime is sufficient to hold that accused was an insane and is entitled to be given the benefit of doubt.
6. Learned Addl. Govt. Advocate, Mrs. S. Pattanaik does not dispute the fact that weapon of offence is not produced in the court. She fairly submits that for the discrepancy with the medical evidence with ocular testimonies, the ocular testimonies of P.W.7 should be given primacy and no interference is called for.
7. We carefully perused the materials on record. the case is based upon the evidence of the sole eye-witness-P.W.7. He has categorically stated that prior to the occurrence the accused was moving in front of the house on road by holding ‘Dauli’. He requested him to hand over ‘Dauli’ as children were fearing. The accused told him that he would not assault anybody. By then the deceased came on that way and accused obstructed him and dealt one blow to the backside of neck. The deceased fell down. Thereafter, the accused gave another two blows. While the deceased was lying on the ground being dead, the accused was moving there holding the ‘Dauli’ and thereafter one Durga Oram (not examined) came and called the accused towards the hotel. This witness has also disclosed that he was apprehending that as accused was mad previously and the accused had no dispute with anybody. He has admitted to have given statement U/s.164 of Cr.P.C. vide Ext.5.
8. If this evidence of sole eye-witness is compared with the medical evidence, it will be found that as per the post-mortem report-Ext.6, the Doctor found 7 injuries including 6 incised wounds. The other injury is one abrasion on the right shoulder. The post-mortem report was proved by Doctor-P.W.8, who has not conducted postmortem but has given his opinion seeing the weapon offence ‘Dauli’ vide Ext.7 that all the injuries could be possible by that weapon. P.W.8 has stated that by the time he gave opinion, the weapon of offence was rusty and blood-stained.
9. Ext-12, the forwarding report for forensic examination reveals that one ‘Dauli’ and one knife were sent for chemical examination. The said examination report is not received. When the medical evidence is contradictory to the ocular testimony advanced by the sole eye-witness, the non-production of seized weapon and the examination report as to whether that weapon had contained any blood stain is potential to make a dent in the credibility of sole eyewitness. In such circumstance, corroboration is essential to base conviction. Prosecution has failed to provide any corroboration from any other source.
10. In Vadivelu Thevar v. The State of Madras, AIR (1957) SC 614, the Hon'ble Supreme Court has observed as under:—
“On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outways the testimony of a number of other witnesses of indifferent character.
(2) 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, tat corroboration should be insisted upon for example, in the case of a child witness, or of a witness show evidence is that of an accomplice or of an analogues character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this a musch depends upon the judicial discretion of the Judge before whom the case comes.
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 loo 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 a fact, to call any particular number of witnesses.”
This Court further observed as under:
“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 guilty depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only coulde 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 cases 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 may be proved by the testimony of a single witness, the innocence of the accused person may be established on the testimony of the single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution.”
11. Now descending to facts when the sole eyewitness is not reliable, the absence of motive creates a doubt. Accused has not attempted to maintain secrecy, nor acted in a prearranged way.
12. The totality of the prosecution evidence reveals that the charge is not proved beyond reasonable doubt even though the accused is not given the benefit U/s.84 of the I.P.C. Because of this, we are unable to sustain the conviction and sentence passed.
13. In the result, the conviction of the appellant U/s.302 of the IPC and sentence passed thereon vide judgement dated 19.12.2006 by the learned Adhoc Addl. Sessions Judge (F.T.), Champua is set aside.
14. The appellant is set at liberty forthwith from jail unless he is required in any other case.
15. Accordingly, the appeal is allowed.
16. LCR be returned immediately to the lower court.
S.K. Mishra, J.:— I agree.
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