Gopal Kishan Sharma, J.
1. Shivsingh and Tejsingh accused appellants have preferred this appeal against the judgment of the Sessions Judge, Jhalawar, dated 30th November, 1982, convicting them of the offence Under Section 302/34, IPC and sentencing each of them to impisonment for life and a fine of Rs. 50/-and in default of payment of fine, to further undergo 1 month's R.I.
2. One Madan Singh lodged a report on 19th October, 1981, at about 10-30 AM, at PS Gangadhar, wherein he stated that one Dungarsingh (deceased) was his real uncle, and that on 18th October, 81. Nainsingh who was also his uncle, came to him and informed him that Dungarsingh was lying dead on the 'Med' of the field. The neck and the feet of Dungarsingh were tied with a 'Safa' and he was full of blood. The shoes and the 'Darati' were lying near the dead body. At this, he (Madansingh) came to village Maksi along with Nainsingh, and from there, he took Harisingh, Chander-singh, Kanchansingh and Bhagwansing his father, and came to the field of Dungarsingh, and there he saw that Dungarsingh was lying dead. Harisingh asked him to report the matter to the police. But, as it was night he did not come to police station. He has further stated that in village Maksi. Harisingh told him that 7-8 days before that date Manna had committed rape on the wife of Shivsingh and that a case had been lodged to this effect against Manna Bagri, and that, Manna Bagri had told Shivsingh that Dungarsingh also had committed rape on his wife. He has further stated that Harisingh also told him that Dungarsingh left the village and went to his father-in-law house in Village-Jamunia, and from there, he came to Sarwar with Harisingh and on Friday night, he returned to village Maksi, and that, on Sunday morning, he went his field to work and also to bring some grass. His wife requested him not to go to the field. But, he went away. Till the evening, Dungarsingh did not return. Then, a search was made, but to no effect He (Madansingh) has also alleged in the report that on account of enmity about the wife of Shivsingh, his uncle Dungarsingh, had been murdered by them. On this report, a case Under Sections 302, 147, 148 & 149, IPC was registered and the matter was investigated. After completing the investigation, the police submitted a challan against Shivsingh and Tejsingh. Both the accused were charged with the offence Under Section 302/34, IPC. After trial, the learned Sessions Judge found both the accused persons guilty of the offence Under Sections 302/34, IPC and sentenced each of them as mentioned above The accused persons pleaded not guilty and contested their trial. No defence evidence was produced on behalf of the accused persons.
3. It is not disputed that Dungarsingh died on account of the injuries found on his body. After the report and during the I investigation, postmortem examination was conducted on the dead body of Dungarsingh. The said post mortem report is EX. P. 12. In the opinion of the doctor, the cause of the death was strangulation. The post mortem examination was conducted at the spot near the village Maksi, on 19th Oct., 1981, at about 4-30 PM. According to the said report, the front of the neck was contused along with extra variation of blood underneath the skin and in the muscles along with fracture of thyroid cartiage, and there were contusions on the back and the left side of the chest and left forearm. The clotted blood was present around both the ears, nostrils and mouth. The face was congested blue and the tongue was protuding bitten. The eye-balls were proctuding and the pupils were dilated, and blood-stained tooth was coming out of the mouth and the nostrils. Thus, from the post mortem report, it is clear that Dungarsingh died on account of strangulation. So, this is not a case of natural death, but of homicide.
4. The learned counsel for the accused appellants has argued that there is no eye witness in this case, and that the entire case depends on the statement of Shankersingh PW9, who, according to the prosecution, was present at the spot when the accused persons inflicted injuries to Dungarsingh So, according to him, the entire case is based on the statement of Shanker Singh only. With regard to this witness, it was argued that he is a concocted and made out witness, and that, his name does not appear in the FIR. He also argued that had Shankersingh been present at the spot at the time when the incident occurred and had he gone with Dungarsingh to his field, as stated by Mst. Balakbai PW 8, wife of deceased Dungarsingh, his name ought to have been mentioned in the report, Ex. P 15. It was further argued that at the time of cremation, Shankersingh was present where the police constables were also present, but Shankersingh did not tell any body that he had seen the accused persons beating Dungarsingh. Shankersingh who is alleged to have been present at the spot at the time of beating and who ran away from the field, did not tell this fact to any body. He ought to have come to the village and informed Mst. Balakbai, wife of the deceased, Dungarsingh that her husband was being beaten by the accused appellants, ' Apart from this, he had also met Balwantsingh, father-in-law of Dungar Singh deceased. But, to him also, he did not tell that Dungarsingh was being beaten by Shivsingh and others. So, arguing on this point, the learned counsel for the accused appellants gave much stress that Shankersingh PW 9 is a false and made out witness, and no reliance should be placed on his testimony. According to him, the entire case depends on the deposition of this witness, and that, the learned Sessions Judge has erred in believing this witness and recording the conviction of the two accused appellants on the basis of the solitary statement of this, witness, Shankersingh PW 9.
5. Shanker Singh PW 9 has stated that he was residing at village Jamunia and had come to Maksi village to take some money from Sardar Singh, because, he had purchased some land and was in shortage of money. Dungar Singh was his brother-in-law. So, he went to Dungar Singh and took him to Sardar Singh. Sardar Singh met them, but on that day no money was paid to Shanker Singh and he was asked to come after 10-12 days. He (Shanker Singh) then returned with Dungar Singh. The next day at about 8 AM, he and Dungar Singh came to the field of Dungar Singh. Dungar Singh was cutting grass with a 'Darati'. He has also stated that while he and Dungar Singh were going to field, the accused appellants along with some other persons met them in the way and they were drunk. Shiv Singh and Tej Singh were having Lathis in their hands. While Dungar Singh was cutting grass, Shiv Singh and Tej Singh came out from the field of Sardar Singh armed with Lathis and started beating Dungar Singh with the Lathis. Seeing this beating, he ran away from the field and went to his village, Jamunia. The next day, he was to appear before the court of SDO, Agar (M.P.). So, he went to Agar and returned on 20th November, 1982 to Jamunia at about 4.30 P.M. Nandubai Bairagi told him that Shivsingh and Tejsingh had murdered Dungarsingh. He then came to Maksi village and attended the funeral of Dungarsingh.
6. By reading the statement of Shankersingh PW 9, it seems that he is not a reliable witness. He has stated that he was present when Shiv Singh started beating to Dungarsingh. He did not raise any cry to save Dungarsingh. A number of persons working at the adjacent fields. Had he called those persons, Dungarsingh might have been saved. Then, he himself did not try to rescue Dungarsingh, but ran away from the place of incident to his own village Jamunia. He could have gone to the house of Dungarsingh and informed his wife about the beating. Then, again at Jamunia, he did not tell any body that Dungarsingh had been beaten by Shivsingh and Tejsingh. He went to Agar the next day and after attending the court case, came back to his village, Jamunia, where he was told by Nandubai Bairagi that Tejsingh and Shivsingh had murdered Dungarsingh. At that time also, he did not tell Nandubai that Dungarsingh was beaten by Shivsingh and Tejsingh as he was present at the field when the incident took place. This shows that this witness, Shankersingh PW 9 only heard about the incident at his village through Nandubai Bairagi. So, his own version that he was present at the field at the time when the incident took place, appears to be a false one.
7. The learned counsel for the accused appellants has then argued that according to the prosecution, Shankersingh PW 9 is the eye witness in this case but, his statement was not recorded by the police immediately, but it was recorded after so many days, which creates doubt in the fact that Shankersingh is an eye witness to the incident.
8. We have considered this argument. Shankersingh PW 9 has stated that he was present at the cremation ground when Dungarsingh was cremated. But, he did not tell any body that he had seen the accused appellants beating Dungarsingh. So, when Shankersingh was present and available to the police, his statement Under Section 161, Cr. PC should have been recorded by the police immediately. When the statement of Smt. Balak Bai PW 8 is looked into, it is found that from the house, Dungarsingh and Shanker Singh both had left together for the field. So, Shankersingh PW 9 was the only material witness, who had witnessed the incident. The report of the incident was lodged by Madansingh. Mst. Balakbai PW 8 has not narrated this fact to Madansingh that Shankersingh and Dungarsingh both had gone from the house to the field.
9. Madansingh PW 6 has stated that whatever Mst. Balakbai PW 8 had informed him, he mentioned that fact in the FIR. In the FIR, Ex. P. 16, there is no mention to this effect that Shankersingh and Dungarsingh both had gone together to the house, and that when the accused beat Dungarsingh, Shankeringh was present at the spot. This shows that it was a subsequent thought to create an eye-witness, and thus, Shankersingh PW 9 has been made eye witness in this case, by the prosecution. Had Shanker Singh accompanied Dungarsingh to his field and had he witnessed the actual beating, Mst. Balakbai PW 8 would have told this fact to Madan Singh PW 6, who would have mentioned it in the FIR.
10. This is an important aspect that the incident took place in presence of Shankersingh. Mst. Balakbai PW 8 knew it that Dungarsingh and Shankersingh both had gone to the field together. So, she should have told this fact to Madansingh who could have mentioned it in the FIR. This shows that Shankrsingh PW 9 was not at all present at the spot when the incident took ploce. He being a relative of the deceased, has been subseqently made an eye witness in this case, and this is the reason that he had not stated this fact of beating by the accused appellants to anybody in the village. Even at the time of funeral, Shankersingh did not tell any body that he was present when the incident took place. At the time of cremation, the head constable and other police constables were present. So, Shankersingh could have told them that he had seen the actual beating to the deceased by the accused appellants. This is the reason that he was examined late by the police Under Section 161, Cr. P.C. All these aspects indicate that Shankersingh PW 9 is not a reliable and trust worthy witness. He is a concocted and made out witness in this case, and the entire story about his presence at the spot when the incident took place, has been fabricated. This shows that Shanker is a most uncredible and unrelable witness; and the learned Sessions Judge has committed a great error in believing the solitary evidence of this witness.
11. The learned counsel for the accused appellants has also brought to our notice certain portions of the statements of Mst. Balakbai PW 8 and Shankersingh PW 9, where they both have disowned their own statements recorded Under Section 161, Cr. PC by the police. The statements during investigation were recorded by the Investigating Officer, who has proved that they were correctly recorded. Both the witnesses have denied the portions mentioned in their statements recorded Under Section 161, Cr. PC. This further shows that both these witnesses are most unreliable witnesses.
12. The learned Sessions Judge has based the conviction of the accused appellants on the solitary statement of Shankersingh, PW 2. No doubt, conviction can be passed on a solitary statement of a person, but, that statement should be of sterling worth. In the present case, as already mentioned above, the statement of Shankersingh PW 9 is the solitary statement is most unreliable and untrustworthy, and therefore, passing conviction on the basis of such a statement would not be correct. We, therefore, do not agree with the conclusion arrived at by the learned Sessions Judge. He could not appreciate the evidence on record in its right perspective and incorrectly relied on the statement of Shankersingh PW 9 which is not a statement of sterling worth.
13. Hence, we are of the opinion that the learned Sessions Judge has committed error in believing the statement of Shankersingh PW 9 and convicting the accused appellants. The case against both the accused appellants has not been proved beyond reasonable doubt.
14. In the result, the appeal of both the accused appellants, is accepted. They both are acquitted of the offence Under Section 302/34, IPC They are in jail. They be released forth with if not required in any other case. The judgment of the learned Sessions Judge, Jhalawar, dated 30th Nov. 1982 is accordingly set aside.