DATE : 20-03-1996 1996-(102)-CRLJ -2613 -DEL
JUDGE(S) : Mohd Shamim  P K Bahri  DELHI HIGH COURT

JUDGMENT
MOHD. SHAMIM, J. :- Convict/appellant (hereinafter referred to as the appellant for the sake of convenience) has approached this Court through the present appeal with a request for setting aside the impugned judgment and order dated September 29, 1992 whereby the learned Sessions Judge found him guilty under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life with a fine of Rs. 500/- In case of failure to clear the fine the appellant was further directed to undergo rigorous imprisonment for one month.
2. It would be necessary to state in brief the facts which led to the present appeal in order to fully and properly appreciate the points raised by the appellant. The facts as adumbrated in the report under Section 173, Cr.P.C., F.I.R. and in the statements of the witnesses examined by the prosecution are as follows : that Constable Sube Singh (PW 2) was posted at P.S. Nangloi during the intervening night of 1st/2nd July 1988. He was on emergency duty along with S.I. Raghbir Prasad (PW 12). An information was received at 3.30/3.45 p.m. with regard to a murder having been committed at house No. E-194, Shiv Ram Park, within the area of PS Nagloi. The same was recorded vide D.D. No. 3A dated February 2, 1988 as a corollary whereof Shri Bharat Singh (PW 14), SHO, PS Nangli along with S.I. Raghbir Prasad and other Constables left for the place of occurrence, alluded to above. Inspector Bharat Singh met over there one Bholar (PW 7). On being questioned with regard to the occurrence Bholar stated that he was a resident of village Shara, District Panipat (Haryana). Aslam alias Makkar (hereinafter referred to as the deceased) was the son of his brother-in-law. He was married to one Jannat, a co-accused (since dead) near about two years ago. Smt. Jannat was the daughter of PW 1 Jami-ud-din. However, after the marriage she returned to her parents after a stay of one day only at the house of her husband. He along with the elder brother of the deceased known as Karim-ud-din again approached Jami-ud-din (PW 9) alias Jammu to send his daughter along with them to the house of her in-laws. However, PW 4 Jami-ud-din did not accede to their request and said that she would be sent after the harvesting season was over. Consequently both of them again called on him with the abovesaid request. This time they met over there one Islam-ud-din i.e. the appellant. The appellant challenged them and declared as to how they would take Jannat alias Shaku along with them. On the refusal of Jami-ud-din to send his daughter they got suspicious and tried to enquire as to what was the reason as to why she was not being sent. On enquiries they came to know that Jannat alias Shaku was having illicit relations with the appellant. It led to some altercation also. Thereafter they again returned to their houses. Later on Jami-ud-din (PW 4) called on them to the first week of June 1988 with an invitation to the marriage of his son Rattan Khan (PW 3) which was to come off on 28th/29th June, 1988. He along with the deceased went to the house of PW 4 Jami-ud-din on June 28, 1988. After attending the marriage they sought leave of Jami-ud-din to leave for their houses whereupon PW 4 asked them to take Jannat alias Shaku along with them. Jannat alias Shaku, however, on being asked to leave for the house of her in-laws declined to accompany the deceased. She bluntly told that she would stay with the appellant. Meanwhile, a police constable came and informed that Jannat alias Bhaku had presented some complaint before the police authorities. The deceased went to the office of the police on being summoned by them. After having returned from the police officer the deceased informed him that Jannat alias Shaku, co-accused had agreed to go along with her husband on July 2, 1988. After having taken their supper he along with the deceased and one Chhotu slept on the roof of the house, adverted to above. They went on talking till 12.00 in the night. It was nearabout 2.00 a.m. that he heard the sound of foot steps of someone. He opened his eyes and saw that the appellant was standing by the side of the cot of the deceased. He saw that the appellant was removing the bed sheet with which the deceased had wrapped himself. On enquiry as to what was the matter the appellant hit the deceased with a knife on his abdomen. The deceased shrieked, stood up, tried to wake but fell on the cot of Chhotu (PW 8). The appellant fled from the spot along with knife. He raised an alarm. He tried to chase the appellant. The appellant, however, succeeded in making good his escape. The said statement of Bholar (Ex. PW/2A) was sent to the police station by Inspector Bharat Singh (PW 14) along with his endorsement (vide Ex. PW 10/A) whereupon the F.I.R. was recorded by ASI Ishwar Singh (PW 10) vide Ex. PW 10/B.
3. The place of occurrence was got photographed through HC Sajjan Kumar vide Ex. PW 13/A-1 to Ex. PW 13/A-8. He prepared the rough site plan (vide Ex. PW 14/A) with correct marginal notes. He also conducted the inquest proceedings. The inquest report is Ex.PW 3/B. He recorded the statements of the witnesses during the inquest proceedings (vide Ex.PW 14/C and Ex. PW 14/D). The body was sent for post-mortem through constables Sube Singh and Prem Singh. The application for post-mortem is Ex.PW 5/B. The post-mortem on the dead body of the deceased was conducted by Dr. Barua (PW 5). The report of the post-mortem is Ex.PW 5/A. Inspector Bharat Singh during the course of investigation took into police custody from the spot a dari Ex. P4, a sheet (chadar) Ex. P5 and a cot Ex. P. 6 which were found to be blood-stained. We lifted blood from the spot with the help of cotton. All the said articles were separately packed and sealed with the seal of “RP” and were taken into possession vide memo Ex.PW 7/B.
4. The appellant was arrested at the instance of PW 7 Bholar. The appellant made a disclosure statement (vide Ex.PW 7/A). He led the policy party to a room and got recovered the dagger (Ex. P3) which was slightly blood stained after digging the earth from the floor of the said room. The pointing out memo is Ex.PW 12/A. The sketch of the dagger was prepared vide Ex.PW 12/B. The same was taken into police custody vide memo Ex.PW 12/C.
5. The co-accused Mst. Jannat was also arrested on the same day. All the exhibits which were taken into police custody were subsequently sent to the CFSL for analysis. The reports of the Chemical Analyst are EX.PX, PY and PZ. After completing all the formalities a charge-sheet was submitted against the appellant and his co-accused Mst. Jannat alias Shaku before the Magistrate concerned. The learned Magistrate committed the appellant and the co-accused Mst. Jannat to the Court of Session for standing their trial under S. 302, Indian Penal Code.
6. Mst. Jannat alias Shaku died during the pendency of the proceedings before the Court of Session.
7. The learned Sessions Judge after appraisal of the evidence led by the prosecution as well as the evidence led by the appellant in his defence came to the conclusion that the prosecution has succeeded in bringing home the guilt to the appellant. He thus found him guilty under S. 302, Indian Penal Code, and sentenced him to imprisonment of life and a fine of Rs. 500/- as referred to above.
8. Learned counsel for the appellant Mr. Suri has contended that there is absolutely no evidence against the appellant to warrant a finding of conviction. Thus according to the learned counsel, the learned Additional Sessions Judge was not correct in his view that the appellant was guilty under S. 302, Indian Penal Code. The learned counsel has further argued that there is the solitary statement of PW 7 Bholar only against the appellant. Bholar is inimically disposed towards the appellant. Hence his statement was required to be scrutinised with with great care and caution and it was not safe to rely on his statement unless it was corroborated by other independent evidence on record. The next limb of the argument advanced by the learned counsel for the appellant in his connection is that the presence of Bholar (PW 7) at the scene of occurrence is very much doubtful and there is absolutely no evidence to show and prove that in fact Bholar was present at the time of the alleged commission of the crime.
9. The learned Public Prosecutor, Mr. Butalia, has urged to the contrary.
10. It is the statement of PW 7 Bholar that he saw with his own eyes the appellant standing by the side of the cot of the deceased armed with a knife. He further goes on to state that the appellant stabbed the deceased with the said knife. The deceased immediately thereafter succumbed to the injuries sustained at the hands of the appellant. Learned counsel for the appellant Mr. Suri has contended that there is the only solitary statement of PW 7 Bholar with regard to the fact that it was appellant who gave the knife blow on the abdomen of the deceased. There is absolutely no other evidence placed on the record in support of the above statement. The thrust of the argument of the learned counsel is that in the above circumstances it would be highly unsafe to convict a person under S. 302, Indian Penal Code, on the basis of the said statement. According to the learned counsel, in case of grave offences like the one under S. 302 of the Indian Penal Code a duty has been cast on the shoulders of the Court to be more vigilant and cautious while placing reliance on the testimony of a particular witness as the consequence which flow therefrom may lead to the infliction of very serious types of punishment, such as imprisonment for life or death penalty.
11. There is no dispute with the said proposition of law that in case of the sole ocular witness with regard to commission of a particular crime the Courts should be on their tiptoe and guard and must scrutinise the evidence with greater care and caution. However, there is no such principle of law that conviction cannot be based on the solitary statement of a witness. Had that been the position of law in that eventuality there must have been a provision to that effect in the Code of Criminal Procedure or in the Evidence Act which lays down the law with regard to the appreciation of evidence. In this connection the provisions of S. 134 of the Evidence Act can be adverted to with profit. It is in the following words :-
“No particular number of witnesses shall in any case be required for the proof of any fact.”
11-A. It is fully manifest from above that no particular number of witnesses has been laid down under the Evidence Act to prove a particular fact. A fact can be proved by a single witness is there is only one witness who has witnessed the said fact. The only condition precedent for placing reliance on the testimony of such a witness is that the statement of the said witness should inspire confidence and must be credit-worthy in the circumstances of a given case. There may be three types of witnesses in case :
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
12. It is abundantly clear from above that the testimony of the oral witnesses can be divided into three categories, as mentioned above for the purposes of the appraisal of their evidence. A Court of Law would not face any problem while dealing with the testimony of a wholly reliable witness. In case of such type of a witness the Court need not look for any corroboration from any quarter whatsoever. The Court can simply say that the said witness is truthful witness and as such, worthy of placing reliance. Similarly, there would be no problem for a Court of Law while dealing with the evidence of a witness who is a liar and thus not worthy of placing any reliance. The Court in such cases may straightway observe that the said witness being un-truthful his testimony is liable to be flung to the winds and straightway to be rejected.
13. This brings us to the third type of witness who is neither wholly reliable nor completely un-reliable. The question precariously perched on the tip of the tongue in such cases would be how to treat the statements of such cases would be how to treat the statements of such type of witnesses ? It is here that the Courts of Law stand in need of guidance. Our reply to the above question is that while dealing with the statements of such of the said witnesses the Courts would be on their tiptoe and guard and would scrutinise statements of such witness with utmost care and caution. The statements of the said witnesses cannot be relied upon unless they are corroborated by other testimony on record either in the form of statement of a witness or some documentary proof in connection therewith.
14. Their Lordships of the Hon’ble Supreme Court while faced with a similar situation in case entitled Kartik Malhar v. State of Bihar, (1995) 8 JT (SC) 425 : (1995 AIR SCW 4540) cited with approval the earlier observations of the said Court in Vaidivelu Thevar v. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000). “….. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following proposition may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of single witness though uncorroborated. One credible witness outways the testimony of a number of other witnesses of indifference 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, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous 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 matter like this and much depends upon the judicial discretion of the judge before whom the case comes.
In view of theses consideration, 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 ….. 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 …..”
15. It is crystal clear from above that the Court is concerned with the quality of the evidence of a particular witness in a particular set of circumstances. If the statement of particular witness is credit-worthy and inspires confidence in a given set of circumstances then there is no impediment in the way of the Court to act upon it and base the conviction thereon.
16. The next contention urged for and on behalf of the appellant is that PW 7 Bholar cannot be said to be an eye-witness by any stretch of imagination. According to the learned counsel he could not have been present at the scene of occurrence. The learned counsel has in this connection argued that as per the case of the prosecution Bholar came to the house of Jami-ud-din (PW 4) in order to attend the marriage ceremony of the son of Jami-ud-din known as Rattan Khan (PW 3) which was to be solemnised on 28/29th June, 1988. Surprisingly enough no document has been place on record to substantiate the said contention that in fact any marriage took place on the abovesaid date. Neither any invitation card nor any extract from Nikah Register nor any photograph was placed on the file in support of the above version. Hence the presence of Bholar at the time of occurrence is highly redolent of suspicion.
17. The contention of the learned counsel we feel is devoid of any force. Admittedly, Jami-ud-din (PW 4), his son Rattan Khan (PW 3), whose marriage is alleged to have been solemnised, and Bholar (PW 7) come of a lower strata of society. They are very poor persons. They can hardly afford to indulge in such types of luxuries as printing of the invitation cards for their (sic) and relations particularly when it is a hard nut to crack for them to eke out their existence. Thus there is nothing strange if no invitation cards were printed and extended to Bholar. In any case, we do not find it to be a suspicious circumstance sufficient enough to cast doubt on the authenticity of the statement of PW 7 Bholar.
18. Learned counsel has then contended that admittedly the deceased was a relation of Bholar (PW 7). Bholar came to the house of Jami-ud-din in Qamruddin Nagar, Nangloi, along with the deceased in order to attend the marriage ceremony of Rattan Khan (PW 3), son of Jami-ud-din. The deceased and Mst. Jannat were called to the Police Headquarters, Delhi in connection with a complaint made by coauccused Mst. Jannat to the police for the purposes of an enquiry by them. Thus it is very strange as to why Bholar (PW 7) did not accompany the deceased to the Police Headquarters. The argument advanced by the learned counsel is that had Bholar been present over there he would have definitely accompanied the deceased. The learned counsel thus wants us to infer therefrom that Bholar was not present on the date of the occurrence. Hence he could not have seen the same.
19. We are sorry we are unable to agree with the contention of the learned counsel. A close scrutiny of the statement of PW 7 Bholar reveals that he was never asked as to why did he not accompany the deceased to the Police Headquarters. Thus, he was not given an opportunity to explain his absence, if any.
20. Furthermore, admittedly, Bholar is a labourer, illiterate persons shudder even at the name of the police. They will go to any extent to avoid the presence of the police unless they are compelled and impelled to do so. A member of the public would not like to face the police as he considers it a humiliation. Thus there is nothing strange if he did not go to the Police Headquarters particularly when his presence was not at all required over there.
21. The learned counsel has then led us through certain documents, such as, pointing out memo (Ex. PW 12/A), the seizure memo (Ex. PW/12/B) with regard to the seizure of the knife (Ex.P 3), and the personal search memo (Ex.PW 14/E) and has contended that the said documents which were prepared immediately after the occurrence do not bear the signatures of PW 7 Bholar. He thus wants us to conclude therefrom that Bholar was not present in the village on the date of the occurrence. Hence he could not have seen the same.
22. The contention of the learned counsel we feel is devoid of any merit. It is true that the said documents do not bear the signatures of Bholar. However, we are unable to draw an inference therefrom in regard to the absence of Bholar from the scene of occurrence. Admittedly, it was not put to the Investigating Officer, Inspector Bharat Singh (PW 14) as to why did he not obtain the signatures of Bholar on the said documents. Had this question been put to him he would have given an explanation for the same. Admittedly, the signatures of Bholar appear on Ex.PW 7/B i.e. the seizure memo with regard to different things taken into possession from the spot. Similarly, the signatures of Bholar are there on Ex.PW 7/A i.e. the disclosure statement made by the appellant leading to the recovery of the knife. Thus the said documents point out in unequivocal terms that Bholar was very much present on the date of occurrence dated July 2, 1988. Hence he could have very well seen the incident.
23. It has then been urged that Bholar, the only ocular witness in the instant case, is inimically disposed towards the appellant as according to the learned counsel, his (Bholar’s) son was engaged to the daughter of the aunt of the appellant, but the said engagement did not materialise and was broken by him (Bholar). Thus the learned counsel argues that it would not be safe to place reliance on the statement of PW 7 Bholar. The learned counsel in support of his argument has led us through the observations of the Hon’ble Supreme Court as reported in Badruddin Rukonddim Karpude v. State of Maharashtra, AIR 1981 SC 1223 : (1981 Cri LJ 729). “………. After hearing learned counsel for the parties we find ourselves at one with learned counsel of the appellants that implicit reliance cannot be placed on the testimony of Shahbuddin (PW 1) and Ismail (PW 5) both of whom are not only deeply interested in the deceased but have also been shown to have made. during the course of their testimony, improvements in the prosecution story propounded by them at the investigation stage, and that in material particulars. We need not give the details of those improvements as they have been already adverted to by the learned trial Judge and it is conceded by learned counsel for the state that the depositions of these two witnesses do suffer from that defect. In this view of the matter we propose to look for assuring circumstances for their testimony in the case of each of the appellants and to confirm the conviction of only those of the latter whose guilt as testified to by Shahbuddin (PW 1) and Ismail (PW 5) finds support from reliable evidence.”
24. The contention of the learned counsel we feel does not hold any water. These is no evidence on record to show with regard to the said matrimonial engagement in between the daughter of the aunt of the appellant and son of Bholar (PW 7) except a suggestion which was made to him during his cross-examination which was denied by him.
25. Admittedly the appellant led evidence in defence and examined three witnesses. Thus the appellant could have examined certain witness on the said point also. Furthermore, on being asked during the course of his statement under S. 313, Cr.P.C. as to why the witnesses have deposed against him, he was simply contended himself by stating that they are false and interested witnesses. Thus, he was nowhere stated in his statement under S. 313, Cr.P.C. that PW 7 Bholar was hostile and inimically disposed towards him. In the above circumstances we do not see any reason, whatsoever, not to believe PW 7 Bholar.
26. The learned counsel further while an inadverting on the statement of PW 7 Bholar has argued that it is in the statement of Bholar that he heard the shrieks of the deceased. Hence he could not have seen the appellant stabbing the deceased. The argument of the learned counsel is devoid of any force. We are unable to appreciate as to what the learned counsel while advancing the said argument wants to canvass through the same. Almighty God has bestowed upon the homo sapiens different faculties in order to enable them to perform a variety of functions. They do so with the assistance and help of different members of the body. They see through their eyes whereas they hear through their ears. A man while witnessing a certain incident is not incapacitated thereby from hearing some thing. Thus there is nothing strange while witnessing the incident Bholar (PW 7) also heard the shrieks of the deceased which is some thing very natural on being injured by someone. Furthermore, the statement of Bholar finds support from the statements of PW 3 Rattan Khan and PW 8 Chhotu.
27. There is another side of the picture. It is in the statement of PW 3 Rattan Khan, real brother of co-accused late Mst. Jannat, and PW 4 Jami-ud-din, father-in-law of the deceased and father of Mst. Jannat co-accused, that the appellant had developed illicit connections with Mst. Jannat. He did not want that Mst. Jannat should live with the deceased and he wanted her to sever off all her relations with him. Thus it was but natural for him to have enmity with the deceased who happened to be the husband of Mst. Jannat. Thus he must have regarded the deceased as an obstruction in his relationship with the co-accused late Mst. Jannat. Consequently there was a motive for doing what the appellant did.
28. It is a well-established principle of criminal jurisprudence that motive plays considerable role in the commission of crime and the Courts are justified in looking for the motive in order to arrive at a correct conclusion. We are tempted here to cite a few lines from the observations of their Lordships of the Supreme Court as reported in Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322. “………. The motive behind a crime (in this case one punishable under S. 302, Indian Penal Code) is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence …..”
29. A faint argument was advanced by the learned counsel for the appellant that the doctor i.e. Dr. L. K. Barua (PW 5) who conducted the autopsy on the dead body of the deceased found that rigor mortis was complete all over the body. He has then referred to the statement of the doctor when he says that the rigor mortis passes off the body in 20-30 hours. Thus the learned counsel contends that the death in the instant case must have occurred much prior to the time which we find in the statement of the prosecution witnesses i.e. 2.00 a.m. Thus the statement of the doctor who is a medical expert sets at naught the prosecution version set out through the statements of PW 7 Bholar, PW 8 Chhotu Khan and PW 3 Rattan Khan.
30. We do no find any force in the contention of the learned counsel. A close scrutiny of the statement of Dr. L. K. Barua (PW 5) reveals that he has opined the time since death about 2 hours. The post-mortem was conducted at 4.30 p.m. on July 2, 1988. If we compute the time of the death from that particular point of time we can safely conclude that the death must have taken place at 2.00 a.m.
31. There is yet another aspect of the matter. The time of onset of rigor mortis varies according to the circumstances in which a man died and the climatic conditions and the condition in which the body was kept subsequent to his death. The death in the instant case took place during the month of June. Month of June is the hottest month of the season when even the walls and floors of the buildings spit fire. Thus in such climatic conditions the lime of onset of rigor mortis would be comparatively quicker than in the cold weather. In any case, much would depend upon the conditions in which the body was kept. If the body is kept in a cold storage or in an air-conditioned room in that eventuality the onset of the rigor mortis would take some time to commence. We are tempted to cite a few lines from the enthralling commentary on ‘Medical Jurisprudence and Toxicology’ by Modi. He has got this to say (at page 171) :-
“Time of Onset. – This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates and it may take two to three hours to develop. In India, it usually commence in one to two hours after death.
Duration. – In temperate regions, rigor mortis usually lasts for two to three days. In Northen India, the usual duration of rigor mortis is twenty-four to forty-eight hours in winter and eighteen to the investigations of Mackenzie in Calcutta the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours ……… When rigor mortis sets in early it passes off quickly and vice versa. In general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours about passes off in about 12 hours. If on examination the body is stiff, the head cannot be fixed towards the chest then in all probability the death might have occurred 6-12 hours or more before the time of examination.”
32. He has further observed at page 172, para (d) under the heading “Atmospheric Conditions :
“Rigor mortis commences slowly, but lasts for a long time in dry, cold air. On other hand, its commencement is rapid, and durations short, in warm, moist air. It comes on rapidly, and disappears late in bodies immersed in cold water.”
33. In the abovesaid circumstances we are unable to take a different view from the view taken by the learned lower court. We do not see any force in the present appeal. The same is liable to be dismissed. It is dismissed as such.
Appeal dismissed.
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