1988 Supreme(MP) 399

IN THE HIGH COURT OF MADHYA PRADESH
R. C. Lahoti, J.
Suresh - Appellant
Vs.
State of M. P. - Respondent
Cr. A. No. 66 of 1985 (G)
Decided On : 12-07-1988

Headnote:(1) Evidence Act, 1872 – S. 134 – sole eye witness – modulation for deliberate purpose of seeking conviction – entails discarding his testimony.

       (2) Indian Penal Code, 1860 – S.301 offence under – single blow – victim naming one accused and also suspecting one her – accused entitled to acquittal.

       (3) Evidence Act, 1872 – S.27 – recovery of pharsa after 15 days – stained with human blood not proved – recovery is of no use.

        Short Note

       The accused/appellant has been held guility of an offence punishable under section 307 I.P.C. and sentenced to rigorous imprisonment for four years. The charge against him was that on the night intervening 15th and 16th July 1984 at village Jora he caused hurt by Pharsa on the neck of Nandu (P.W. 1) with intention of causing his death and thereby attempted to cause his death.

       2. Held: Nandu (P.W. 1) during his statement had deposed that he was asleep when he suffered a Pharsa blow on his neck. He opened his eyes and stood up: he could see the accused appellant armed with Pharsa in the moon light. The accused ran away. The sound raised by him brought of the house his sons and daughters – in – law followed by village people. He further stated that having suffered injuries be was not able to speak and hence could not name Suresh as his assailant to his family members or the village people. He did net state a single word about having caught – hold of the Pharsa and about suffering two injuries in his both the hands. When cross – examined, he stated that a dispute between him and the father of the accused was going on because the land on which his house stood was initially given by the father of the accused and he was insisting on resuming the land.

       3. Nandu (P. W. 1) is a sole witness to the commission of the crime. Though, there is no bar of basing a conviction on the testimony of a single witness and it is well established that it is not the quantity of the quality of the evidence which matters, as held in Badri v. State of Rajasthan (AIR 1976 S.C. 560), in each case, the Court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. Their Lordships cautioned that an effort at modulation by a sole witness for the deliberate purpose or seeking conviction may entail discarding of his testimony.

       4. It is, therefore, to be seen whether Nandu (P.W. 1) is a witness of sterling character; whether his testimony does not suffer from any infirmity and hence it would be safe to rest the finding of guilt of accused thereon.

       5. Nandu (P. W. 1) was confronted with his police statement, Ex. D/l recorded on 29 – 7 – 1984, the earliest occasion when he could speak. After naming the accused Suresh as the assailant, he added in the next breath TATHA MITHUA BARAR SE KHET JAMIN KA JHAGDA CHAL RAHA THA ISLIYE MUJHE MITHUA PAR SHAK HAI". On the same day, a statement in the nature of dying – declaration was recorded by Dr. Pradeep Khare of J. A. Hospital, Gwalior in the shape of questions and answers, which is Ex. D/2. Question No. 6 was: "who assaulted you" Nandu answered; "SURESH AHIR NE MARA". Question No.9 was: "Whether he had suspicion on anyone else" The answer was "MITHUA BARAR KI SHANKA HAI" These two statements do go to show that even on 29 – 7 – 84 Nandu was not sure that it was the accused Suresh alone and no one else who dealt the Pharsa blows on him. If only he had correctly identified the assailant as accused Suresh, there was no reason for him to express suspicion on Mithua Barar. In cross – examination, he stated that a dispute about his field was going on with Mithua. Barar. It appears that the injured Nandu had at least two enemies with animosity of equal strength. With one he had a dispute about the house and with the other he had a dispute about the agricultural land. In all probability the incident being a case of single blow, caused while he was fast asleep, he could not identify the assailant. Between 16 – 7 – 84 and 29 – 7 – 84, his family members naturally had simple opportunity of being close to him and their mind must have started working on the guess as to who could have been the assailant. Suspicion must have fallen on two enemies. It got fixed on one, but the possibility of the other one having made the assault also could not be excluded positively in the gueS. That is why though the accused Suresh was named as the assailant yet suspicion with equal vigour was expressed about Mithua Barar also as the likely assailant.

       6. Vidhyaram (P.W.7), son of Nandu, was also confronted with his earlier Police statement, Ex. D/3. Initially he stated that he was aroused by a sound of GHARR GHARR but his police statement portion marked, 'A' to 'A' was "AWAJ AAI 'LALLA' LALLA' SOI MERI ANKH KHUL GAI'. If this is correct, then the injured was in a position to speak soon after sustaining injuries and could have named the assailant if only he had identified him. Taking into consideration all the above said features of the case, it will not be possible to accept the testimony of Nandu (P. W. 1) as one of streling value.

       7. In so far as the recovery of Pharsa, Art. 'A' is concerned, it does not positively link the accused with the commission of the crime. The recovery took place about a fortnight after the date of the incident. The report of Forensic Science Laboratory, Sagar Ex. P/12, confirm the presence of blood on the Pharsa. Art, 'N but does not say that it was human blood. It appears that the report of Serologist, Calcutta, was also sought for, but the result is not known. In the absence of material to show that the Pharsa was stained with human blood, not to talk of grouping the recovery of Pharsa does not take the prosecution case any further. AIR 1976 SC 560 followed. Appeal allowed.