JUDGEMENT :

SHREE CHANDRASHEKHAR, J.

1. The appellant has been convicted and sentenced to RI for life and a fine of Rs. 2,000/- under section 302 IPC for committing murder of Mulwa Devi.

2. The case of the prosecution is that Sobrati Mian had illicit relationship with Mulwa Devi. In the evening of 27th July, 2008, at about 6:30 PM, Sobrati Mian came to house of the informant. At that time, Mulwa Devi was cooking food. A quarrel started between Sobrati Mian and Mulwa Devi and suddenly Sobrati Mian struck a tangi blow on the head of Mulwa Devi. The informant tried to apprehend him but somehow he managed to escape. On the basis of statement of Doman Ram recorded at 8:30 AM on 28th July, 2008 at Sadar Hospital, Hazaribag, Sadar (Muffasil) P.S. Case No. 690 of 2008 was registered against Sobrati Mian and two unknown persons. After the investigation a charge-sheet was submitted against the appellant under section 302/34 IPC and he has faced the trial on the charge of committing murder of Mulwa Devi.

3. During the trial, the prosecution has examined altogether ten witnesses out of whom PW-5, PW-6, PW-7 and PW-8 are related to the deceased and the appellant has examined himself as DW-1.

4. PW-9, Dr. K.K. Verma who has conducted the post-mortem examination on 28th July, 2008 has found fracture of right parietal bone of the head of Mulwa Devi of the size of “3 inches x ¼ inch”, brain deep. He has also observed surgical stitches over the said injury and found that fist of both hand of Mulwa Devi were half clinged. In his estimation the time elapsed since death was 4 to 36 hours and the cause of death was shock and haemorrhage due to the head injury.

5. Mulwa Devi has suffered a homicidal death has not been challenged by the appellant, however, the case set up by the defence is that the informant who was suffering humiliation due to illicit relationship between the appellant and his wife has killed her and falsely implicated the appellant in this case.

6. PW-5 and PW-7 are closely related to Mulwa Devi, the deceased. PW-5 is father of Mulwa Devi and PW-7 is her husband. They are the eye-witnesses in this case and their evidence has been challenged on the ground of their close relationship with the deceased. In “Waman Vs. State of Maharashtra” reported in (2011) 7 SCC 295, the Hon’ble Supreme Court has observed that merely because the witnesses are related to the complainant or the deceased their evidence cannot be thrown out and if their evidence is found to be consistent and true, the fact of being relative cannot by itself discredit their evidence. A word of caution, however, has been indicated by the Hon’ble Supreme Court in a series of judgements, one being in “Sawarn Singh Vs. State of Punjab” reported in ( 1976) 4 SCC 369, wherein the Hon’ble Supreme Court has observed that the evidence of an interested witness does not suffer from any infirmity as such but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care.

7. PW-5 has stated in his examination-in-chief that at about 6:00 PM he was sitting in the house of his daughter. The appellant who was carrying a tangi came there and holding Mulwa Devi by her hair started assaulting her and when his daughter protested he assaulted her on her head with tangi. However, in his cross-examination he has admitted that in the evening around the time of occurrence he had gone to the shop of Raghuni Yadav for tobacco and when he came back to the house of his daughter he found the informant crying. On such evidence, PW-5 cannot claim to be an eye-witness and, therefore, the case of the prosecution against the appellant would now depend on a solitary witness, PW-7.

8. In “Takdir Samsuddin Sheikh v. State of Gujarat” reported in (2011) 10 SCC 158, the Hon’ble Supreme Court has observed that:

“This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wh