Important point
Conviction can be based on sole ­testimony of eye witness though other eye witnesses turned hostile if testimony of such sole witness is found to be reliable.

Judgment

Arijit Pasayat, J.—Conviction for offence punishable under Section 302, Indian Penal Code, 1860 (for short ‘IPC’) made by learned Ses­sions Judge, Kota, having been confirmed by a Division Bench of the Rajasthan High Court, Jaipur Bench, this appeal has been preferred by the accused.

2. Factual scenario as unfolded during trial is as follows :

On 26.4.1994, septuagenarian Lattor Lal (hereinafter referred to as ‘the deceased’) lost his life at about 7.30 a.m. He was going with his cows in front of one Madan Lal’s house. According-appellant Chittar Lal gave him a knife blow resulting in instantaneous death. This incident was witnessed by Dhan Raj (PW 3), Shiv Prakash (PW 5), Nathu Lal (PW 6) and others. Son of the deceased, Heera Lal (PW 1) lodged the report at the police station at about 8.15 a.m. On being told that accused was coming towards the house of Heera Lal (PW 1), his mother closed the door. When he went to the roof, he saw accused who had a knife in his hand was running towards the hospital. He reached the spot and found his father dead. The background motive for the assault was said to be execution of a Will of one house by Moti Lal, father of the accused in favour of his daughter Smt. Ganga Bai (PW 16), who later on sold the house to Bharat Kumar (PW 8) (brother of the informant). Accused did not like the transaction and had developed animus towards the deceased. On registration of the First Information Report, investigation was undertaken and charge sheet was filed. Post-mortem was conducted by Doctor (PW 18), who found two stab injuries; one in pleural cavity along with ­fracture of mid sternum V arranged and other 3/4" x 1/4" deep into abdominal cavity 4", 2" left to umbilicus. The case was committed to the court of Sessions Judge, Kota and trial was held by it. Prosecution examined 18 witnesses to further its version. Accused pleaded innocence.

3. During trial two witnesses who claimed to be eye-witnesses (PWs 5 and 6) made departure from the statements made during investigation. However, Dhanraj (PW 3) implicated the accused.

4. The Trial Court relying on his evidence held the accused guilty of offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life.

5. In support of the appeal, learned counsel for the appellant submit­ted that evidence of PW3 could not have been relied upon as his name did not find place in the FIR. Additionally on the sole testimony of a young boy of 15, the conviction could not have been made. The evidence of PW3 is not cogent and credible and lacks reliability. His presence at the spot of occurrence is doubtful. The incident was claimed to have taken place at about 7.30 a.m. when he was supposed to be in the examination hall. He was student of class VI and it is hard to believe that he secured 20 marks in the oral examination, as claimed by him. On the contrary it appears that the marks were secured by him at the examination held on that date. If he appeared at the examination; question of his having seen the incident does not arise.

6. None appeared for the State of Rajasthan when the matter is called.

7. Evidence of the person whose name did not figure in the FIR as witness does perforce become suspect. There can be no hard and fast rule that the names of all witnesses more particularly eye-witnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan vs. State of Rajasthan (2001(6) SCC 296) mere non-mention of the name of an eye-witness does not render prosecution version frag­ile. The information was not lodged by an eye-witness. Mental condi­tion of a person whose father has lost life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW 3’s name is plausible. Additionally it is to be noted that in the present case the statement of PW 3 was recorded on the same date of incident, immedi­ately after the investigation process was set into motion. Therefore, the plea that PW 3’s testimony is dou