V.R. Newaskar, J.
1. Appellants Bhuwan and Nakdiya were prosecuted before the Additional Sessions Judge, Alirajpur, for the murder of Ramsingh on the 14th of April 1965 at the village Bardala. They were found guilty, the former under Section 302, I.P.C. and the latter under Section 302 read with Section 34, I.P.C. and were sentenced to life imprisonment.
2. Both appealed. Appeal of Bhuwan is No. 447 of 1965 and that of Nakdiya is No. 448 of 1965. Both these appeals are heard together and are being disposed of by this judgment.
3. Material facts leading to the prosecution of the appellants are as follows;
4. Deceased Ramsingh owned a 'tada' tree situated in the field of Bhuwan from which toddy used to be tapped. Ramsingh complained that the appellant Bhuwan often stealthily tapped toddy from his tree. On the 14th of April 1965 Ramsingh came to the house of Dedu at about 1 P.M. after tapping toddy from his 'Tada' tree. Just then Bhuwan and Nakdiya happened to go there. Bhuwan at that time waa armed with a 'Paliya.' Prosecution case is that Bhuwan, on seeing Ramsingh, twisted his moustaches and gave him a filthy abuse. He then gave a blow to Ramsingh with the 'paliya' in his hand. Ramsingh, on receipt of the blow, got up. Bhuwan held his hand and asked Nakdiya to join the fight from his side. Nakdiya complied and lifting a wooden part of a plough called 'choda' he dealt several blows to Ramsingh. Dedu, on seeing the fight and the ugly turu it had taken, ran to the house of Patel Ratansingh to whom he narrated this incident. He also had spoken about it to Raymal whom he had met in the way and had requested him to tell about it to Amarsingh the brother of Ramsingh.
Later Amarsingh and Dedu both went to the Police Station where Amarsingh lodged a report naming both the appellants as the assailants of Ramsingh who was found to be dead. On receipt of the information the Police reached the spot. Inquest was held over the dead body and there, after it was sent for post-mortem examination to Dr. Gotre who conducted the autopsy and found that the deceased had two injuries on the back 5' and 2' in length on the upper part near the back-bone. These injuries were verticle. There was also an incised wound 8' long on the left leg at its lower 1/8 part and one punctured wound on the left of the bask of head. On internal examination it was disclosed that the left lung had been punctured to a depth of 2'. Cause of death was slated to be due to wound on the left lung, bleeding in thorax, fracture of rib, all resulting in shock, coma and respiratory embarrassment Injury to the lung was sufficient in the ordinary course of nature to cause death.
5. The police, after investigation, put up the case against the two appellants Bhuwan and Nakdiya.
6. The appellants denied their complicity in the murder.
7. The prosecution examined at the trial the only eye-witness Dedu. They produced corroborative evidence of Amarsingh alias Amria. Raimal and Ratansingh.
8. Dedu in his examination-in-chief stated about the coming of Ramsingh at the place after tapping the 'tada' tree for having a smoke followed by the advent of Bhuwan and Nakdiya and twisting of his moustaches and giving a blow with his Paliya to Ratnsingh. On receipt of the blow, according to him, Ramsingh got up. He had also a Paliya in his hand. Bhuwan caught hold of his hand and asked Nakdiya as to why he was merely looking on instead of participating on his behalf. Nakdiya thereupon, according to him, caught hold of a 'choda' of a plough lying in his court-yard and beat Ramsingh. In his cross, examination the witness gave further details. According to him at Brat Bhuwan twisted his moustaches. Ramsingh thereupon gave a filthy abuse to him and asked nim why was be twisting his moustaches. Bhuwan replied saying that he had formed a habit of doing so.
Ramsingh then again gave the same filthy abuse and warned him for drinking his toddy every day and said that he had come within his reach that day. So saying he raised his hand with a view to strike Bhuwan with the 'paliya'. Bhuwan then caught hold of that hand and asked Nakdiya not to look on but to rush to his rescue. Nakdiya, on thus being exhorted took up a 'choda' lying there with a view to save Bhuwan and gave one blow and ran away. He (the witness Dadu) too then ran away leaving both Bhuwan and Ramsingh fighting with each other. The witness was declared hostile by the prosecution who sought permission to cross-examine him and to admit his statement in the Committal Court to be brought on record under Section 288, Criminal P.C.
This was allowed and Dedu's statement under Section 288, Criminal P.C., was taken on record and read as evidence in this case. In that statement there was no reference to Ramsingh being armed with a 'Paliya', his having abused Bhuwan, blaming him for stealthily drinking toddy from his tree and raising his hand to strike at him. But it is not without significance that the counsel for the accused were otherwise busy in another Court when Dedu's statement in the Committal Court was recorded and could consequently not avail themselves of the opportunity to cross. examine the witness at that stage. We shall later consider the weight of Dedu's statements, admissibility of his earlier statement and propriety of basing the conviction of the two accused rejecting whatever be has stated which went to support the defence. For the present we shall refer to other evidence in the case.
9. Amriya alias Amarsingh brother of the deceased spoke about his dying declaration naming the accused as the assailants. The so-called dying-declaration does not find place in the first information report lodged by Amria at the Police Station Ex. P/2. In that report he had stated that he had been told about the incident first by Raimal and later by Dedu. As regards Ramsingh he had stated that when he had been [to Dedu's courtyard he found that his brother had faint respiration suggesting that he was not in a position to speak. Thus the dying-declaration, to which reference is made by Amariya, has no value as a reliable piece of evidence.
10. Raimal is another witness. He spoke about meeting with Dedu while he was going to the Patel to inform him about the incident. According to him Dedu asked him to inform Amaria and he did. He denied that on reaching the spot he found Ramsingh in a condition to tell him about his assailants. The witness was declared hostile and was cross-examined.
11. Khapri widow of Ramsingh was examined to speak about Ramsingh's dying declaration. Her statement cannot inspire confidence in view of what Dedu, Amariya and Raimal had stated. Besides this she was not examined by the Police during investigation and was produced for the first time at the trial. Ratansingh, Patel of the village, stated about Dedu having informed him about the assault on Ramsingh by Bhuwan and Nakdia. He also stated that when he reached the spot he found Ramsingh in senseless condition and was not in a position to talk.
12. It is thus clear that there is no evidence worth the name except that of the only eye. witness Dedu. His statement at the trial fully made out the defence that it was Ramsingh who first abused Bhuwan because of the latter having twisted his moustaches and wanting to strike him with his 'Paliya'. Bhuwan caught hold of his hand and called Nakdiya to rush to his help. He did and gave a blow to Ramsingh with a 'Choda' lying in the court-yard of Dedu. This gave opportunity to Bhuwan to get free and Strike at Ramsingh with his 'Paliya'. Thus the two accused, under the circumstances as narrated in this statement, acted in exercise of their right of self-defence for saving Bhuwan from being killed. The statement of Dedu in the Commit, ting Magistrate's Court can be read consistently with this statement. That statement did not give details of the incident which the statement at the trial did. Merely because those details were given it cannot be said positively that the wit. ness was won over particularly when be explained that he bad been asked by the Police Officer to speak that much and nothing more and there was unfortunately no cross-examination of the witness at that stage.
18. Assuming that the witness has exhibited leaning towards the accused at the trial stilt with a witness of such a sort conviction of the two accused cannot be safely based on his statement.
14. It is, no doubt, true that a conviction can be based on a solitary statement of a single witness in a murder case if that statement is considered reliable. But where a single witness has obviously changed there is no guarantee about the truthfulness of his statement unless there is corroboration of the prosecution case from other quarters.
15. For these reasons the conviction of both the accused is unsustainable.
16. The appeals are consequently allowed and both the appellants are acquitted. They shall be set at liberty at once.