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CASE NO.:

Appeal (crl.) 914 of 2006

PETITIONER:

NAMDEO

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 13/03/2007

BENCH:

C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

C.K. THAKKER, J.

The present appeal is filed against the judgment

and order passed by the High Court of Judicature at

Bombay (Nagpur Bench) on March 29, 2005 in Criminal

Appeal No. 262 of 2001 by which the High Court

dismissed the appeal against an order of conviction

recorded by the Sessions Judge, Buldana on July 23,

2001 in Sessions Case No. 19 of 2001 convicting the

appellant for an offence punishable under Section 302 of

Indian Penal Code (IPC).

Short facts leading to the present appeal are that

the deceased Ninaji Rupaji Ghonge was a resident of

Deodhaba, Taluk Malkapur, District Buldana. He was

residing with his son Sopan (PW6). His other sons were

staying separately. Deceased Ninaji possessed she goats,

sheep and she buffalos. The appellant-accused Namdeo

was also residing in a nearby house. Relations between

the deceased Ninaji and the accused Namdeo were

strained. The reason was the belief entertained by the

accused. Namdeo harboured a suspicion that she goats

and sheep belonged to him died due to some disease and

the deceased Ninaji and his friends were responsible for

the death of those animals as deceased Ninaji had played

a witch craft. This resulted in accused Namdeo abusing

the deceased and administering threat to kill. PW6-

Sopan, son of the deceased, however requested village

people to settle the dispute between his father and the

accused. Accordingly, some responsible persons

intervened, called both of them and advised not to

quarrel.

On October 25, 2000 between 8.00 to 9.00 p.m., a

she buffalo of accused Namdeo died. Deceased Ninaji,

after taking his meal, was sleeping on the wooden cot in

the backyard of his house. On the same night, at about

2.00 to 3.00 a.m., PW6-Sopan (complainant) heard

shouts of his father calling 'Bapa re Bapa re'. On hearing

the cry, PW6-Sopan and his wife rushed towards the

backyard of his house where Ninaji was sleeping and

noticed that the accused Namdeo was assaulting him.

PW6-Sopan saw the accused administering axe blow on

the head of his father Ninaji, in the light of electric bulb.

On seeing Sopan, the accused Namdeo fled away from

the place taking axe in his hand. Sopan chased him, but

the accused disappeared in the darkness and Sopan

could not catch him. PW8-Raju Prahlad Sonune, who

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was a neighbour, also heard the shout of Ninaji and came

there. He also tried to catch the accused Namdeo but

could not succeed. Sopan and Raju returned to the

backyard where Ninaji was lying. They noticed two

injuries one on the head and another near his right eye

and they were bleeding. Meanwhile neighbours had

gathered. Ninaji was then taken to Dr. Suresh Wagh

(PW7). According to the prosecution, Dr. Suresh Wagh-

PW7 asked Ninaji as to what had happened and the latter

told him that accused Namdeo had assaulted him with

axe. Dr. Suresh Wagh gave one injection to Ninaji and

asked Sopan to take Ninaji to the hospital at Malkapur

for better treatment. Sopan and his friends brought

Ninaji to Malkapur in a jeep at about 6.30 a.m. in the

following morning at the hospital of Dr. Suhas Borle

(PW3), who advised to take Ninaji to 'Advance Critical

Center' at Malkapur and accordingly he was taken there.

Dr. Suhas Borle examined Ninaji and applied stitches to

his wounds. However, at about 8.00 a.m. on that day,

Ninaji succumbed to the injuries in the hospital itself. At

about 8.15 a.m., Dr. Suhas Borle sent report to police

station, Malkapur about the accidental death of Ninaji. A

case was registered at Malkapur police station being

Accidental Death Case No. 24 of 2000. At about 12.00

noon, PSI Diwakar Pedgaonkar (PW10) and other police

officers came to Advance Critical Center, prepared

inquest panchnama of the dead body of Ninaji and seized

the quilt, kerchief from dead body and sent the dead

body for autopsy. Then, complainant Sopan went to

Malkapur rural police station and gave oral information

which was reduced to writing and the same was treated

as complaint (Ex.38).

On the basis of the above report, offence vide Crime

No. 94 of 2000 was registered under Section 302 IPC. PSI

Diwakar himself took over the investigation of the case.

He went to village Deodhaba, where the offence was

committed. He prepared sketch of scene of offence in

presence of panchas. He found the blood lying on the

earth at the place and one wooden cot also. One pillow

stained with blood was on the cot. He collected samples

of blood smeared earth and simple earth and attached

the pillow and wooden cot under the panchanama. He

noticed that one electric bulb was near one room in that

house. It was tested and found operating. Supplementary

statement of complainant Sopan and of other witnesses

were recorded. After completion of investigation, charge

sheet was submitted against the accused in the Court of

Judicial Magistrate, Malkapur who committed the case to

the Sessions Court, Buldana.

The prosecution, in all, examined 10 witnesses in

support of the case. PW6-Sopan is the son of deceased

Ninaji and a star witness. He is complainant also. He

stated that he was sleeping in his house along with his

wife on the night of October 25, 2000 after taking meal.

His father slept on a wooden cot (charpai) in the backyard

of the house. At about 2.00 or 3.00 a.m., he heard shouts

of his father calling 'Bapa re Bapa re'. Immediately, he

and his wife rushed towards the backyard and saw that

the accused Namdeo was assaulting his father Ninaji

with axe. He specifically stated that he and his wife

witnessed the incident in the light of electric lamp.

Namdeo fled away from the place along with axe in his

hand. Though the witness chased the accused, but he

disappeared in darkness. He further stated that PW8-

Raju was behind him when he was chasing the accused.

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After disappearance of accused, both of them i.e., Sopan-

PW6 and Raju-PW8, returned to his house. At that time,

Ninaji was saying that he was assaulted by the accused

Namdeo. Ninaji was bleeding from the injuries sustained

by him.

The evidence of PW6-Sopan was corroborated by

PW8-Raju. He stated that he is a neighbour of deceased

Ninaji and his house is situated at a distance of only 30

feet from the house of deceased Ninaji. He also stated

that house of accused Namdeo is situated at a distance of

about 25 feet from his house. According to him, the

relations between the accused Namdeo and the deceased

Ninaji were strained. Regarding the incident, he stated

that he was sleeping in the courtyard of his house on the

day of the incident and at about 3.00 a.m., he heard the

shouts to the effect 'Bapa re Bapa re', 'Namya assaulted'.

On hearing the shouts, he rushed to the house of Ninaji

and saw that accused Namdeo was coming out of the

house of Ninaji and PW6-Sopan was following him i.e.

running behind him. The witness also started running

behind Sopan. He deposed that he witnessed this in the

electricity light. According to him, there were two injuries

on Ninaji, one on head and another near right ear.

PW7-Dr. Suresh Wagh stated that on inquiry, the

injured (deceased) Ninaji told him that it was the accused

Namdeo who assaulted him with an axe. The injuries

sustained by Ninaji were duly proved by the evidence of

PW7-Dr. Suresh Wagh, PW3-Dr. Suhas Sopan Borle and

PW4-Dr. Laxminarayan Ashokchand Jaiswal who effected

autopsy of dead body of Ninaji on October 26, 2000.

The trial Court, on the basis of the above evidence,

held that it was proved that Ninaji died of homicidal

death. So far as the guilt of the accused is concerned, the

trial Court held that from the evidence of PW6-Sopan

(complainant), son of deceased, it was clear that he had

witnessed the incident in electric light. His evidence was

corroborated by PW8-Raju who not only heard the shout

'Bapa re Bapa re', 'Namya assaulted' but Ninaji also told

the witness that it was the accused who caused him

injuries. The Court also held that when injured

(deceased) was taken to the house of PW7-Dr. Suresh

Wagh, Ninaji informed the Doctor that it was the accused

who had assaulted him.

During the investigation, the axe was also recovered

at the instance of accused Namdeo by the Investigating

Officer. The prosecution had examined PW9\027Nivrutti

Patil who was a panch witness. The accused had made a

statement that he had concealed the axe beneath the

fodder of his cattle shed and he would produce it.

Memorandum of statement (Ex.44) was prepared and the

accused led the panch and PSI Diwakar to the cattle shed

from where the axe stained with blood was found.

PW10\027PSI Diwakar sent muddamal axe to Chemical

Analyzer, Nagpur which was found to have human blood.

No blood group, however, could be ascertained.

On the basis of the above evidence, the trial Court

held that it was proved beyond reasonable doubt that it

was accused and accused alone who had caused injuries

to the deceased which resulted in his death. The accused

was, therefore, convicted for an offence punishable under

Section 302 IPC and was awarded imprisonment for life.

The appeal filed by the accused before the High

Court was dismissed observing that the trial Court had

not committed any error and the judgment and order did

not deserve interference. The said order is challenged

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before this Court.

We have heard learned counsel for the parties.

The learned counsel for the appellant contended

that the entire case of the prosecution is based on

solitary testimony of eye witness Sopan, son of the

deceased. He is thus an 'interested' witness. In absence

of any corroboration, it would not be safe to place implicit

reliance on his testimony who could not have seen the

assailant in the dark night. It was further contended

that though several persons had come at the place of

offence, none was examined except Raju\027PW8, who was

also not an eye witness. It was submitted that oral dying

declaration said to have been made by the deceased

Ninaji either before PW8-Raju or PW7-Dr. Suresh Wagh

cannot be relied upon in the light of the fact that the

injured was in critical condition and died within a short

time. It was finally submitted that even if the case of the

prosecution is believed, only a single blow was given by

the accused and the case would not be covered under

Section 302 IPC but would fall under Section 304, Part II

IPC and the order of conviction and sentence requires to

be modified.

The learned advocate for the State supported the

order of conviction and sentence. According to him, both

the Courts considered the evidence in its proper

perspective and no fault can be found when they held the

accused guilty. Regarding nature of offence, it was

submitted that an axe blow was administered on the vital

part of the body i.e. head which resulted in death of the

deceased which was rightly held to be a case of an

offence of murder. A prayer was therefore made to

dismiss the appeal.

Having heard the learned counsel for the parties, in

our opinion, no interference is called for in exercise of

power under Article 136 of the Constitution. It is no

doubt true that there is only one eye witness who is also

a close relative of the deceased, viz. his son. But it is

well-settled that it is quality of evidence and not quantity

of evidence which is material. Quantity of evidence was

never considered to be a test for deciding a criminal trial

and the emphasis of Courts is always on quality of

evidence.

So far as legal position is concerned, it is found in

the statutory provision in Section 134 of the Evidence

Act, 1872; which reads;

134. Number of witnesses.\027No

particular number of witnesses shall in any

case be required for the proof of any fact.

Let us now consider few leading decisions on the

point.

Before more than six decades, in Mohamed Sugal

Esa Mamasan Rer Alalah v. The King, AIR 1946 PC 3 :

222 IC 304 (PC), one M together with his brother E

caused murder of his half-brother A. The trial Court

convicted M and sentenced him to death acquitting his

brother E. The conviction was confirmed by the appellate

Court. It was contended before the Privy Council that the

conviction was solely based on unsworn evidence of a girl

aged about 10-11 years. The trial Court found her

competent to testify, but was of the view that she was not

able to understand the nature of an oath and, therefore,

oath was not administered. It was contended by the

accused that no conviction could be recorded on a

solitary witness and that too on an unsworn evidence of a

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tender-aged girl of 10-11 years without corroboration.

Considering the question raised before the Judicial

Committee, leave was granted.

Their Lordships considered the legal position in

England and in India. It was held that such evidence is

admissible under Indian Law "whether corroborated or

not".

Lord Goddard, speaking for the Board stated:

"\005Once there is admissible evidence a Court

can act upon it; corroboration, unless required

by statute, goes only to the weight and value of

the evidence. It is a sound rule in practice not

to act on the uncorroborated evidence of a

child, whether sworn or unsworn, but this is a

rule of prudence and not of law. In a careful

and satisfactory judgment the Judge of the

Protectorate Court shows that he was fully

alive to this rule and that he applied it, and

their Lordships are in agreement with him as

to the matters he took into account as

corroborative of the girl's evidence."

In Vadivelu Thevar v. State of Madras, 1957 SCR

981 : AIR 1957 SC 614, referring to Mahomed Sugal, this

Court stated;

On a consideration of the relevant

authorities and the provisions of the Indian

Evidence Act, the following propositions may

be safely stated as firmly established :

(1) As a general rule, a court can and may

act on the testimony of a single witness

though uncorroborated. One credible

witness outweighs the testimony of a

number of other witnesses of indifferent

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 a matter

like this and much depends upon the

judicial discretion of the Judge before

whom the case comes.

Quoting Section 134 of the Evidence Act, their

Lordships stated that "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."

The Court proceeded to state;

It is not seldom that a crime had been

committed in the presence of only one witness,

leaving aside those cases which are not of

uncommon occurrence, where determination

of guilt depends entirely on circumstantial

evidence. If the Legislature were to insist upon

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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.

If such a testimony is found by the court to be

entirely reliable, there is no legal impediment

to the conviction of the accused person on

such proof. Even as the guilt of an accused

person may be proved by the testimony of a

single witness, the innocence of an accused

person may be established on the testimony of

a single witness, even though a considerable

number of witnesses may be forthcoming to

testify to the truth of the case for the

prosecution.

The Court also stated;

There is another danger in insisting on

plurality of witnesses. Irrespective of the

quality of the oral evidence of a single witness,

if courts were to insist on plurality of witnesses

in proof of any fact, they will be indirectly

encouraging subornation of witnesses.

Situations may arise and do arise where only a

single person is available to give evidence in

support of a disputed fact. The court naturally

has to weigh carefully such a testimony and if

it is satisfied that the evidence is reliable and

free from all taints which tend to render oral

testimony open to suspicion, it becomes its

duty to act upon such testimony. The law

reports contain many precedents where the

court had to depend and act upon the

testimony of a single witness in support of the

prosecution. There are exceptions to this rule,

for example, in cases of sexual offences or of

the testimony of an approver; both these are

cases in which the oral testimony is, by its

very nature, suspect, being that of a

participator in crime. But, where there are no

such exceptional reasons operating, it becomes

the duty of the court to convict, if it is satisfied

that the testimony of a single witness is

entirely reliable.

In the leading case of Shivaji Sahebrao Bobade v.

State of Maharashtra, (1973) 2 SCC 793, this Court held

that even where a case hangs on the evidence of a single

eye witness it may be enough to sustain the conviction

given sterling testimony of a competent, honest man

although as a rule of prudence courts call for

corroboration. "It is a platitude to say that witnesses

have to be weighed and not counted since quality matters

more than quantity in human affairs."

In Anil Phukan v. State of Assam, (1993) 3 SCC 282

: JT 1993 (2) SC 290, the Court observed; "Indeed,

conviction can be based on the testimony of a single eye

witness and there is no rule of law or evidence which

says to the contrary provided the sole witness passes the

test of reliability. So long as the single eye-witness is a

wholly reliable witness the courts have no difficulty in

basing conviction on his testimony alone. However,

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where the single eye witness is not found to be a wholly

reliable witness, in the sense that there are some

circumstances which may show that he could have an

interest in the prosecution, then the courts generally

insist upon some independent corroboration of his

testimony, in material particulars, before recording

conviction. It is only when the courts find that the single

eye witness is a wholly unreliable witness that his

testimony is discarded in toto and no amount of

corroboration can cure that defect."

In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614

: JT 1995 (8) SC 425, referring to several cases, this

Court stated; "On a conspectus of these decisions, it

clearly comes out that there has been no departure from

the principles laid down in Vadivelu Thevar case and,

therefore, conviction can be recorded on the basis of the

statement of a single eye witness provided his credibility

is not shaken by any adverse circumstance appearing on

the record against him and the court, at the same time,

is convinced that he is a truthful witness. The court will

not then insist on corroboration by any other eye witness

particularly as the incident might have occurred at a time

or place when there was no possibility of any other eye

witness being present. Indeed, the courts insist on the

quality, and, not on the quantity of evidence."

In Chittar Lal v. State of Rajasthan, (2003) 6 SCC

397 : JT 2003 (7) SC 270, this Court had an occasion to

consider a similar question. In that case, the sole

testimony of a young boy of 15 years was relied upon for

recording an order of conviction. Following Mohamed

Sugal and reiterating the law laid down therein, this

Court stated:

"The legislative recognition of the fact that no

particular number of witnesses can be

insisted upon is amply reflected in Section 134

of the Indian Evidence Act, 1872 (in short

'Evidence Act'). Administration of justice can

be affected and hampered if number of

witnesses were to be insisted upon. It is not

seldom that a crime has been committed in the

presence of one witness, leaving aside those

cases which are not of unknown occurrence

where determination of guilt depends entirely

on circumstantial evidence. If plurality of

witnesses would have been the legislative

intent cases where the testimony of a single

witness only could be available, in number of

crimes offender would have gone unpunished.

It is the quality of evidence of the single

witness whose testimony has to be tested on

the touchstone of credibility and reliability. If

the testimony is found to be reliable, there is

no legal impediment to convict the accused on

such proof. It is the quality and not the

quantity of evidence which is necessary for

proving or disproving a fact."

(emphasis supplied)

Recently, in Bhimappa Chandappa v. State of

Karnataka, (2006) 11 SCC 323, this Court held that

testimony of a solitary witness can be made the basis of

conviction. The credibility of the witness requires to be

tested with reference to the quality of his evidence which

must be free from blemish or suspicion and must

impress the Court as natural, wholly truthful and so

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convincing that the Court has no hesitation in recording

a conviction solely on his uncorroborated testimony.

From the aforesaid discussion, it is clear that Indian

legal system does not insist on plurality of witnesses.

Neither the Legislature (Section 134, Evidence Act, 1872)

nor the judiciary mandates that there must be particular

number of witnesses to record an order of conviction

against the accused. Our legal system has always laid

emphasis on value, weight and quality of evidence rather

than on quantity, multiplicity or plurality of witnesses. It

is, therefore, open to a competent court to fully and

completely rely on a solitary witness and record

conviction. Conversely, it may acquit the accused in

spite of testimony of several witnesses if it is not satisfied

about the quality of evidence. The bald contention that

no conviction can be recorded in case of a solitary eye

witness, therefore, has no force and must be negatived.

It was then contended that the only eye witness\027

PW6-Sopan was none other than the son of the deceased.

He was, therefore, 'highly interested' witness and his

deposition should, therefore, be discarded as it has not

been corroborated in material particulars by other

witnesses. We are unable to uphold the contention. In

our judgment, a witness who is a relative of the deceased

or victim of a crime cannot be characterised as

'interested'. The term 'interested' postulates that the

witness has some direct or indirect 'interest' in having

the accused somehow or other convicted due to animus

or for some other oblique motive.

Before more than half a century in Dalip Singh v.

State of Punjab, 1954 SCR 145 : AIR 1953 SC 364, a

similar question came up for consideration before this

Court. In that case, the High Court observed that

testimony of two eye witnesses required corroboration

since they were closely related to the deceased.

Commenting on the approach of the High Court, this

Court held that it was 'unable to concur' with the said

view. Referring to an earlier decision in Rameshwar

Kalyan Singh v. State of Rajasthan, 1952 SCR 377 : AIR

1952 SC 54, their Lordships observed that it was a

fallacy common to many criminal cases and in spite of

endeavours to dispel, "it unfortunately still persists, if not

in the judgments of the courts, at any rate in the

arguments of counsel".

Speaking for the Court, Vivian Bose, J. stated:

"A witness is normally to be considered

independent unless he or she springs from

sources which are likely to be tainted and that

usually means unless the witness has cause,

such as enmity against the accused, to wish to

implicate him falsely. Ordinarily, a close

relative would be the last to screen the real

culprit and falsely implicate an innocent

person. It is true, when feelings run high and

there is personal cause for enmity, that here is

a tendency to drag in an innocent person

against whom a witness has a grudge along

with the guilty, but foundation must be laid for

such a criticism and the mere fact of

relationship far from being a foundation is

often a sure guarantee of truth".

(emphasis supplied)

The Court, no doubt, uttered a word of caution:

"However, we are not attempting any

sweeping generalisation. Each case must be

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judged on its own facts. Our observations are

only made to combat what is so often put

forward in cases before us as a general rule of

prudence. There is no such general rule. Each

case must be limited to and be governed by

its own facts". (emphasis supplied)

In Darya Singh & Ors. v. State of Punjab, (1964) 3

SCR 397 : AIR 1965 SC 328, this Court held that

evidence of an eye witness who is a near relative of the

victim, should be closely scrutinized but no corroboration

is necessary for acceptance of his evidence.

Speaking for the Court, Gajendragadkar, J. (as His

Lordship then was) stated:

"There can be no doubt that in a murder case

when evidence is given by near relatives of the

victim and the murder is alleged to have been

committed by the enemy of the family, criminal

Courts must examine the evidence of the

interested witnesses, like the relatives of the

victim, very carefully. But a person may be

interested in the victim, being his relation or

otherwise, and may not necessarily be hostile

to the accused. In that case, the fact that the

witness was related to the victim or was his

friend, may not necessarily introduce any

infirmity in his evidence. But where the

witness is a close relation of the victim and is

shown to share the victim's hostility to his

assailant, that naturally makes it necessary for

the criminal Court to examine the evidence

given by such witness very carefully and

scrutinise all the infirmities in that evidence

before deciding to act upon it. In dealing with

such evidence, Courts naturally begin with the

enquiry as to whether the said witnesses were

chance witnesses or whether they were really

present on the scene of the offence. If the

offence has taken place as in the present case,

in front of the house of the victim, the fact that

on hearing his shouts, his relations rushed out

of the house cannot be ruled out as being

improbable, and so, the presence of the three

eye-witnesses cannot be properly characterised

as unlikely. If the criminal Court is satisfied

that the witness who is related to the victim

was not a chance-witness, then his evidence

has to be examined from the point of view of

probabilities and the account given by him as

to the assault has to be carefully scrutinised.

In doing so, it may be relevant to remember

that though the witness is hostile to the

assailant, it is not likely that he would

deliberately omit to name the real assailant

and substitute in his place the name of enemy

of the family out of malice. The desire to

punish the victim would be so powerful in his

mind that he would unhesitatingly name the

real assailant and would not think of

substituting in his place the enemy of the

family though he was not concerned with the

assault. It is not improbable that in giving

evidence, such a witness may name the real

assailant and may add other persons out of

malice and enmity and that is a factor which

has to be borne in mind in appreciating the

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evidence of interested witnesses. On principle,

however, it is difficult to accept the plea

that if a witness is shown to be a relative

of the deceased and it is also shown that

he shared the hostility of the victim

towards the assailant, his evidence can

never be accepted unless it is corroborated

on material particulars." (emphasis

supplied)

In Dalbir Kaur (Mst.) v. State of Punjab, (1976) 4 SCC

158 : AIR 1977 SC 472, the accused killed his own father

and real brother over a property dispute. Eye-witnesses

to the 'gruesome, brutal and unprovoked' double-murder

were near relatives of the deceased. It was, therefore,

contended that they were 'interested' witnesses and their

evidence should not be accepted for holding the

appellants guilty.

Negativing the contention, upholding the order of

conviction, and referring to Dalip Singh, this Court

stated;

"There can be no doubt that having regard to the

fact that the incident took place at midnight

inside the house of Ajaib Singh, the only natural

witnesses who could be present to see the assault

would be Jaswant Kaur and her mother Shiv

Kaur. No outsider can be expected to have come

at that time because the attack by the appellants

was sudden. Moreover a close relative who is a

very natural witness cannot be regarded as an

interested witness. The term "interested"

postulates that the person concerned must have

some direct interest in seeing that the accused

person is somehow or the other convicted either

because he had some animus with the accused or

for some other reason. Such is not the case here.

In the instant case there is absolutely no

evidence to indicate that either Jaswant Kaur or

Shiv Kaur bore any animus against the accused."

In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614,

this Court considered several leading cases on the point

and said:

"On a conspectus of these decisions, it clearly

comes out that there has been no departure from

the principles laid down in Vadivelyu Thevar's

case (supra) and, therefore, conviction can be

recorded on the basis of the statement of single

eye witness provided his credibility is not shaken

by any adverse circumstances appearing on the

record against him and the Court, at the same

time, is convinced that he is a truthful witness.

The Court will not then insist on corroboration by

any other eye witness particularly as the incident

might have occurred at a time or place when

there was no possibility of any other eye witness

being present. Indeed, the Courts insist on the

quality, and, not on the quantity of evidence".

(emphasis supplied)

Recently, in Harbans Kaur v. State of Haryana,

(2005) 9 SCC 195, the conviction of the accused was

challenged in this Court, inter alia, on the ground that

the prosecution version was based on testimony of

relatives and hence it did not inspire confidence.

Negativing the contention this Court said:

"There is no proposition in law that relatives are

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to be treated as untruthful witnesses. On the

contrary, reason has to be shown when a plea of

partiality is raised to show that the witnesses had

reason to shield actual culprit and falsely

implicate the accused."

From the above case-law, it is clear that a close

relative cannot be characterised as an 'interested'

witness. He is a 'natural' witness. His evidence, however,

must be scrutinized carefully. If on such scrutiny, his

evidence is found to be intrinsically reliable, inherently

probable and wholly trustworthy,conviction can be based

on the 'sole' testimony of such witness. Close relationship

of witness with the deceased or victim is no ground to

reject his evidence. On the contrary, close relative of the

deceased would normally be most reluctant to spare the

real culprit and falsely implicate an innocent one.

In the present case, PW6-Sopan is the son of

deceased Ninaji. The incident took place at the residence

of Ninaji as well as the witness (PW6-Sopan). It was night

time about 3.00 a.m. Obviously, therefore, his presence

in his own house was natural and he could not be said to

be a 'chance witness'. PW6 was sleeping in his own room

along with his wife and deceased Ninaji was in the

courtyard on his cot. That was also natural. There is

nothing unusual in his (PW6-Sopan) coming out of his

room when his father cried 'Bapa re Bapa re'. It was also

normal behaviour on the part of the son to chase the

accused as he had seen the accused administering axe

blow on the head of his father. Unfortunately, however,

due to darkness outside the house, the accused was

successful in making his escape. The testimony of PW6-

Sopan appears to both the Courts to be trustworthy and

reliable. In addition, the Court also found further

corroboration from the evidence of PW8-Raju who could

not strictly be said to be an eye witness but who saw the

accused coming out of the house of Ninaji with axe in his

hand. He referred to electric light in the courtyard where

deceased Ninaji was sleeping. He also stated that Ninaji

was saying that he was assaulted by Nanya, i.e. accused

Namdeo. Similar dying declaration was made by

deceased Ninaji before PW 7- Dr. Suresh Wagh as well.

Medical evidence of PW7\027Dr. Suresh Wagh, PW3\027Dr.

Suhas Borle and PW4\027Dr. Jaiswal further corroborates

the prosecution story and injuries sustained by Ninaji.

It, therefore, cannot be said that the Courts below had

committed an error in relying upon the sole testimony of

PW6-Sopan, particularly when it was corroborated in

material particulars with the testimony of PW8-Raju and

three Doctors. The contention raised by the accused,

therefore, cannot be upheld.

Finally, we are unable to uphold the argument of

the learned counsel for the appellant-accused that the

case falls under Section 304, II IPC. Considering the

nature of weapon used by the accused (axe) and the vital

part of the body (head) of the deceased chosen by him, it

was clear that the intention of the accused was to cause

death of Ninaji. PW 4 Dr. Jaiswal in his deposition

stated that injury No. 1 was sufficient in the ordinary

course of nature to cause death of the victim. In the

circumstances, both the Courts were right in holding that

the case was covered by Section 302 IPC.

For the foregoing reasons, we see no infirmity in the

orders passed by the courts below. The appeal deserves

to be dismissed and is accordingly dismissed. The order

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of conviction and sentence is hereby maintained.