Jail Crl. Appeal No. 259 of 1988

19th August, 1992.

Petitioner Counsel: Miss. Sanju Panda, s
Respondent Counsel: Mr. G. K. Mohanty, Addl. Standing Counsel, .

Cases Cited:
1989 Cri LJ 288,AIR 1988 SC 2153 [Para 7]
1987 Cri LJ 706,AIR 1987 SC 826 (Relied on) [Para 7]
1975 Cri LJ 1500,AIR 1975 SC 1727 [Para 7]

JUDGMENT

PASAYAT, J. :-In this appeal from the Sub-Jail, Jaypore, Koraput, eight persons, each one of them hereinafter described as the 'accused', question the legality of their conviction made and sentence awarded by learned Addl. Sessions Judge, Koraput, Jaypore. The accused persons faced their trial being charged for offence punishable under S. 302/34 of the Indian Penal Code, 1860 (in short, the 'IPC') on the allegation of intentionally causing death of Padmasai Suna (hereinafter described as the 'deceased') by assaulting him by various weapons in furtherance of their common intention. The accused persons were found guilty under S. 302/34, IPC, convicted thereunder and sentenced to undergo imprisonment for life.

2. Shorn of unnecessary details, prosecution case is as follows :

On 15-6-1987 in the morning at village Tihiliguda under Papadahandi police station, the deceased and his brother Dhansai Suna, the informant (P.W. 3) were sowing paddy seedlings in front of their house. After sometime, accused Nandu alias Salimdhar Nayak came there, requesting the deceased to accompany him to his house to take back the cash and rice. The deceased called his wife Kanak Dei Suna (P.W. 1) to accompany him, and both of them accompanied accused Nandu to his village Kaliaguda. At about noon, P.W. 1 came running and told P.W. 3 and others that the accused persons have killed the deceased. She stated that Kanhaisingh Nayak assaulted the deceased with an axe, and other accused persons did so with lathies. The deadbody was lying in the courtyard of Kanhaisingh Nayak. At this Dhansai Suna went towards the house of Kanhaisingh Nayak, kept himself concealed behind a mango tree and saw his brother lying dead with bleeding injuries. He also saw that Kanhaisingh and Kusa Nayak were armed with an axe each and others were armed with lathies, and they had surrounded his deceased brother. Out of fear, Dhansai Suna came back and informed his other brother Ramsai Suna (P.W. 2) and came to Mydalpur Out Post and orally reported the incident. The same was reduced to writing by the A.S.I. of Police who read over and explained the same, Dhansai Suna admitted it to be correct and put his signature. Since a cognizable case under S. 302/34, IPC was made out, necessary entries were made and investigation was taken up. Certain material objects were seized and after completion of investigation, charge sheet was submitted.

3. Accused persons denied the occurrence. According to accused Kanhaisingh, deceased and his brother Dhansai Suna had entered into his house with a spear and lathi respectively to commit theft. When their presence was noticed by his wife, she shouted hearing which accused Kusa came there. Padmasai stabbed him by a knife and when accused Kanhaisingh arrived, he saw

Padmasai Suna running away by whirling the axe. According to accused Nandu alias Salimdhar Nayak, he was not present at the spot and the other accused persons also took plea of alibi.

4. In order to establish its case, prosecution examined ten witnesses. Defence also examined two witnesses. Accused Nandu tries to prove about his presence at Bank on the date of occurrence. On consideration of evidence of the witnesses, learned trial Judge found accused persons guilty and convicted and sentenced them as aforesaid.

5. In support of appeal, Miss Panda, learned counsel for petitioners has submitted that defence plea is more probable and learned trial Judge has erred in not accepting the same. It is further submitted by her that evidence of the Doctor clearly rules out the assault by lathies as attributed to the accused persons except accused Kanhaisingh. Further, Kanak (P.W. 1) has stated that Ramsai (P.W. 2) was present in the house of accused Kanhaisingh for sometime. This aspect has hot been stated by Ramsai. On the evidence of sole alleged eye witness conviction should not have been made. Learned counsel for State however, submitted that learned trial Judge has elaborately discussed the evidence and there is no scope to warrant any interference.

6. It is relevant at this juncture to refer to the evidence of P.W. 1, the sole eye witness as claimed by the prosecution. Her evidence to the extent that accused Kanhaisingh dealt axe blows on the head and neck of the deceased gets ample corroboration from the evidence of the Doctor (P.W. 7). Though she was subjected to lengthy cross-examination, nothing contradictory has been elicited from her so as to impeach the credibility of her evidence. On the evidence of solitary eye witness, conviction can be maintained. In this context, S. 134 of the Indian Evidence Act, 1872 is relevant. This Section lays down in clear terms that no particular number of witnesses is necessary for proof or disproof of a fact. The result is that in any case, the testimony of a single witness, if believed is sufficient to establish any fact. S. 134 follows the maxim that evidence is to be weighed and not counted. Any hard and fast rule that a particular number of witnesses should be required to prove a particular offence would hamper the administration of justice, as in many cases it may not be practicable to get more than one witness. All that the Court is concerned with, is the quality and not quantity of the evidence. Learned trial Judge was right in the analysis that accused Kanhaisingh had caused fatal injuries on the head of the deceased by an axe.

7. So far as the other accused persons are concerned, we find that evidence of P.W. 1 does not get any corroboration from the evidence of P.W. 7. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated as the variable, keeping the medical evidence as the constant. (See State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 : (1989 Cri LJ 288). If the evidence of the witness is however totally inconsistent with the medical evidence, this is a vital defect and unless reasonably explained, is sufficient to discredit the evidence of the witness. (See Ram Narain v. The State of Punjab, AIR 1975 SC 1727 : (1975 Cri LJ 1500); Amar Singh v. State of Punjab, AIR 1987 SC 826 : (1987 Cri LJ 706). Medical evidence like any other evidence has to be decided on the touchstone of acceptability and reliability. In the instant case, the Doctor has specifically stated that there were only cut injuries. These injuries have been attributed to the assaults by accused Kanhaisingh by an axe. Since a cut injury is not possible by a lathi, it cannot be said that the prosecution has been able to establish its case against the accused persons other than accused Kanhaisingh. The evidence of Kanak (P.W. 1) to the effect that the accused persons except Kanhaisingh had

assaulted by lathies is totally inconsistent with the material evidence.

8. In the ultimate result, appeal by accused Kanhaisingh Nayak fails and is dismissed. So far as other accused persons namely, Kuse Nayak, Sadana Nayak, Narasing Nayak, Dinabandhu Nayak, Nandu alias Salimdhar Nayak, Laba Nayak and Kanhu Jani are concerned the appeal is allowed and conviction made and sentence awarded by learned Addl. Sessions Judge are set aside and they be set at liberty forthwith, unless their presence in custody is required in connection with any other case.

D. M. PATNAIK, J. :- 9. I agree,

Order Accordingly