K.D. Sharma, J.
1.This is an appeal filed by Lachha and Harta against the judgment of the Sessions Judge, Udaipur, dated 2nd July, 1976, whereby Lachha appellant was convicted under Sections 394/34 and 397, I.P.C. and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month on the first count and on the second to undergo rigorous imprisonment for seven years. By that very judgment, Harta also was convicted under Section 394 I.P.C. and sentenced to undergo rigorous imprisonment for four years and to. pay a fine of Rs. 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month.
2. The prosecution case against the appellants was as follows: On 17th September, 1975, at about 7 p.m. one Bhima was going from his house to his fields which were situated near village Salariya. In the way near Khera-ki-Khadari both the appellants met Bhima and made an assault on him. Lachha appellant had a lathi with him, with which he caused injuries to Bhima, while Harta appellant forcibly took currency-notes of Rs. 127/-, out of the pocket of Bhima's bush-shirt. Bhima raised an out cry, which attracted Deeta and Pema to the place of occurrence. At the sight of these pet sons the appellants ran away from the spot. Deeta and Pema brought Bhima injured to Udaipur, where he was medically examined by Dr. G.L. Dad on 19th September, 1975. The Doctor found the following injuries on his body:
1. bruise 2 cm x 1 cm, reddish blue colour, below lower lip left side with slight swelling. There is mobility with tenderness of left side of lower gums from the central portion of the mandible i. e. symphysis;
2. diffused swelling with tenderness over parotid region and bruise 2 cm x 1 cm. below it. There is difficulty in articulation of lower jaw.
Both the injuries were caused by a blunt weapon. The Doctor advised X-ray examination of both the injuries on the body of Bhima. The injuries were accordingly X-rayed and were found grievous, as there were fractures of the mandible at the symphysismenti and near the angle. A written report of this incident was made by Bhima Ram to the Superintendent of Police, Udaipur, on 30th September, 1975. The Superintendent of Police, Udaipur, forwarded the report to the Station House Officer, Bekaria, for registration of a criminal case. Bhima Ram produced the written report before Vijai Singh, Head Moharir of police station, Bekaria, as late as on 17th October, 1975 at 11.45 a.m Vijai Singh registered a criminal case under Sections 392 and 399, I.P.C on the basis of the Written report made by Bhima and made usual investigation into the matter. On 18th October, 1975, he inspected the site, prepared a site plan and recorded the statement of Bhima. Thereafter, the case was investigated by the Station House Officer, Bekaria, who arrested Lachha and Harta appellants, under memo of arrests Exs. P. 8 and P 9. Harta produced currency-notes of Rs. 67/-, before the Station House Officer, which were taken into possession by the latter and kept in an envelope. Likewise, Lachha produced currency notes of Rs. 60/-, before the Station House Officer, which were also taken into possession by the latter. After collecting other necessary evidence, the investigating other filed a challan against both the appellants under Section 394 and 397, I.P.C in the court of the Additional Munsiff-Magistrate, No. 2, Udaipur. The learned Magistrate, upon finding a prima facie case exclusively triable by the court of Sessions, committed both the appellants to the court of the Sessions Judge, Udaipur, for trial, under the aforesaid sections. The Sessions, Judge tried Lachha and Harta appellants and found Lachha guilty of the offence under Sections 394/34 and 397, I.P.C. The Sessions Judge therefore, convicted and sentenced both the appellants in the manner stated above. Aggrieved by their convictions and sentences, appellants have preferred this appeal to this Court.
3. I have carefully perused the record and heard Mr. N.N. Mathur For the appellants and Mr. S.S. Bhandawat, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellants that the trial court committed an error in basing the appellants' conviction upon uncorroborated testimony of a single witness Bhima, especially when his evidence was not trust-worthy on merits. In support of his above contention, Mr. N.N. Mathur learned Counsel for the appellants relied upon an authority of the Supreme Court Badri v. State of Rajasthan : 1976CriLJ496 . Mr. S.S. Bhandawat, on the other hand, argued that as a general rule courts can act on the evidence of a single witness, though not corroborated by any other evidence. According to him, corroboration is required only when it is insisted upon by statute or where the nature of the evidence of the single witness is such as cannot be relied upon without being corroborated by some independent source.
4. I have considered the above contentions. There is no illegality in convicting a man on the evidence of solitary witness if the court implicitly relies upon it. What weighs with the court is the quality of the evidence and not its quantity. No. invariable rule can be laid down as to how many witnesses are required to prove the guilt of an accused in a particular case. Reference in this connection may be made to the following observations made by their Lordships of the Supreme Court in Badri v. State of Rajasthan (supra):
11. This Court had to deal with the case of a solitary witness in Vadilvelu Thevars v. State of Madras : 1957CriLJ1000 . Oral testimony was classified in that case into three categories, namely, (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. While there is no difficulty about the first two, with regard to the third category this Court observed:
'It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
12. Since under the Evidence Act. no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. 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.
Hence, the appellants could be legally convicted on the evidence of solitary witness Bhima if the conscience of the court was satisfied that the version given out by him at the trial was true and reliable. The pertinent question that arises for determination, therefore, is whether in the particular circumstances of this case it was safe to convict the appellants on the evidence of Bhima. In order to decide this question, it is necessary to scrutinise his testimony with care and caution with a view to ascertaining whether it is trust-worthy on merits. Bhima P.W. 3 stated on oath in the trial court that at about 6.30 p m. he started from his house for going to his-field. In the way he met both the appellants asked him where he was going He replied, that he was returning from his house. Lachha appellant at that time had a lathi in his hand with which he inflicted blows on the body of Bhima. The blows fell on the left side of his neck and right side of his mandible. Bhima had currency-notes of Rs. 127/- , in the pocket of his bush-shirt, which were taken out of it by Harta appellant. He raised a hue and cry which attracted Deeta and Pema to the place of occurrence. At the sight of Deeta and Pema, both the appellants ran away from there. Pema and Deeta then removed Bhima to his shop at Khadar, where he stayed during the night In the morning, he was taken to General Hospital, Udaipur, on a cart. He was admitted in the hospital as an indoor patient and stayed there for about twenty days. After he was discharged from the hospital, he made a report of the occurrence to the Superintendent of Police, Udaipur. The prosecution examined Pema P.W. 4 to corroborate the testimony of Bhima. Pema claimed to be an eye-witness to the occurrence. His evidence in the trial court was that he heard the cries of Bhima near Khera-Ki-Khadari, while he along with Deeta was going to his house. On hearing the cries he and Deeta rushed to the place of occurrence and saw Lachha appellant having a thick short stick. The blows fell on the neck and mandible of Bhima. He further saw Harta appellant forcibly taking currency-notes of Rs. 127/-, out of the pocket of the bush-shirt of Bhima. The evidence of Pema was disbelieved by the trial court for the simple reason that he was not mentioned as an eye-witness to the occurrence in the report lodged by Bhima with the police after twenty days. According to the trial court, Pema falsely assumed the role of an eye-witness, because if he had been present at the spot at the time of the occurrence, his name would have been surely mentioned by Bhima in his report and in his subsequent statement before the police. Apart from this, Pema admitted in his cross-examination that he did not personally see Harta appellant forcibly taking currency-notes out of the pocket of the bush-shirt of Bhima and that Bhima had informed him about the robbery. Hence I agree with the trial court that Pema's testimony cannot be used as a corroborative piece of evidence.
5. However, the evidence of Bhima so far as it relates to infliction of. injuries on his body with a lathi by Lachha appellant is corroborated by medical evidence. Dr. G.L. Dad, P.W. 1, examined Bhima on 19-9-1975, i e. after two days of the occurrence. He found two injuries on his body caused by a blunt weapon. Out of the two injuries, ore was a bruise below the lower lip left side with slight swelling and another was a diffused swelling with tenderness over parotid region and bruise 2 cmx 1 cm below it. Both the injuries were X-rayed by the Radiologist Dr. Rameshwar Shrimali who detected fractures of the mandible at the symphysis-menti and rear the angle upon X-ray examination Dr. G.L. Dad definitely stated in his cross-examination that injury on his right parotid could be caused by a forcible blow with a blunt hard weapon. A question was put to him in cross-examination whether these injuries could be caused by a fall. He gave an answer that in case a man falls then there should be some injuries on the tip of the nose and forehead, if he receives an injury by fall on the chin. There was no injury on the tip of the nose and forehead of Bhima. It is proved by the evidence of Dr. G.L. Dad and Dr. Rameshwar Shrimali that he sustained two grievous injuries on his body with a blunt object, the duration of which was within two to three days on the date of examination, i. e. 19-9-1975 at 10 a.m. The learned Counsel for the appellants could not succeed in assailing the medical evidence of these two witnesses and I see no reason to disbelieve it.
6. Mr. N.N. Mathur, learned Counsel for the appellants, vehemently contended before me that the evidence of Bhima, so far as, it relates to the causing of injuries to him by Lachha appellant is not free from infirmities. According to him, Bhima did not say in his statement Ex. D 1 recorded by the police curing the course of investigation that Lachha had a lathi in his hand or that he was beaten by Lachha with a lathi. Bhima, no doubt, was confronted with and contradicted by his statement Ex. D. 1 by the police, wherein he did not mention that Lachha had a lathi in his hand with which he inflicted blows on his body, but in his statement before the police he definitely stated that Lachha made an assault on him and gave him a severe beating. Hence, his evidence at the trial cannot be safely held to be inconsistent on this point with his previous statement, which he gave before the police in the course of investigation. No other material discrepancy was pointed out by the learned Counsel for the appellants between his statement it the trial and his previous statement before the police. The learned Counsel for the appellants could not succeed in showing that Bhima had any enmity with or personal grudge against Lachha appellant prior to this occurrence. There is nothing of the record to show or suggest that Bhima was actuated by some ulterior motive to falsely implicate Lachha in the commission of the crime. Consequently, I have no hesitation in holding that Bhima's evidence is true and reliable, so far as, it relates to infliction of injuries on his body by Lachha appellant with a lathi at the time and place alleged by the prosecution.
7. Mr. N.N. Mathur, learned Counsel for the appellants, further urged that the case against the appellants was a concocted one as Bhima deliberately did not make a report to the police about the occurrence till 30 9-1975. According to him, there was unexplained delay of about twenty days in lodging a report of the incident with the police which throws considerable doubt on the prosecution story. The above contention has no force, because Bhima gave a reasonable explanation for the delay in making the first information report of the occurrence to the police. The explanation was that he could not make a report of the incident to the police earlier than 30-9-1975 as he was admitted as an indoor patient in the hospital for twenty days for treatment of his injuries. According to him he made a written report to the Superintendent of Police, Udaipur, as soon as he was discharged from the hospital after twenty days. The above explanation was rightly believed by the trial court and I see absolutely no reason to take a different view. Mr. Mathur further urged in this behalf that Bhima did not produce the written report before the Station House, Officer, Bekaria, till 17th October, 1975, although it was given to him by the Superintendent of Police with a forwarding note on the very day, i e. on 30th September, 1975. The above contention also is of no material significance. It is no doubt true that Bhima did not produce the written report before the Station House Officer, Police Station, Bekaria, earlier than 17th October, 1975, but late production of the report is not of material significance in the case as no addition or alteration has been made in the contents of the report and as Bhima gave an explanation that on account of having fallen sick he failed to produce the written report before the Station House Officer earlier than 17th October, 1975. Taking all these facts and circumstances into consideration. I agree with the trial court that the delay in making the first information report to the police is not fatal to the prosecution case.
8. As for the offence of robbery committed by the appellants, Mr. N.N. Mathur has strenuously contended that this part of the prosecution story is entirely concocted and false. According to him, there is no reliable evidence on the record to show that the currency-notes of Rs. 127/-, were forcibly taken out of the pocket of the bush-shirt of Bhima by Harta appellant in the same transaction in which hurts were caused to Bhima by Lachha. The above contention is not devoid of substance. As staled earlier, Bhima's evidence so far as it relates to forcibly taking out of the currency-notes from his pocket by Harta is concerned, is not corroborated by any other reliable evidence - direct or circumstantial. Bhima staled in his cross examination that he had twelve currency-notes of the denomination of Rs. 10/- each, one currency-note of Rs. 2/-, in the pocket of his white coloured bush shirt, which he was wearing at the time of the occurrence. He had brought this money from Malva-ka--Kheda. He did not produce any person from Malva-ka-Kheda in court to show that this amount was given to him by that person at Malva-ka-Kheda. Apart from this, this part of his evidence does not find corroboration even from his witness Pema, who clearly admitted in his cross examination that he did not see Harta appellant taking this sum out of the pocket of the bush-shirt of Bhima. Deeta, D.W.I, whose presence at the spot at the time of occurrence was admitted by Bhima himself, clearly stated in his cross-examination that Bhima upon being questioned by him did not tell that he was robbed of Rs. 127/-, by Harta appellant. Hence, in my opinion, removal of the currency-notes of Rs. 127/-, from the pocket of Bhima by Harta appellant has not been satisfactorily proved by the prosecution.
9. There is another circumstance which throws considerable doubt on the story of forcible removal of currency-notes from the pocket of Bhima by Harta appellant. In order to substantiate its case of robbery, the prosecution has led evidence of recovery of currency-notes of Rs. 67/-, and Rs. 60/-, from Harta and Lachha appellants respectively at the time of their arrests on 30th October, 1975, but the recovery of the currency-notes is highly suspicious in the circumstances of this case. The occurrence took place on 17th September 1975. It is not believable that the two appellants would be carrying gains of robbery, i.e. the currency-notes of Rs. 127/-, into their pockets during the whole of the period of about one month & thirteen days that elapsed between the date of occurrence and the date of recovery without spending a single pie out of the said money. The recoveries made by the Investigating Officer do not inspire confidence, especially when the currency notes recovered from the appellants were unidentifiable and did not tally with the denominations of the currency-notes alleged to have been taken out from the pocket of Bhima. As the offence of theft of the currency-notes from the pocket of Bhima is not established by the prosecution beyond reasonable doubt, the conviction of the appellants for robbery cannot stand. The prosecution has no doubt proved beyond reasonable doubt that Lachha appellant was responsible for voluntarily causing grievous hurts to Bhima. He is, therefore, liable to be convicted under Section 325, I.P.C. only. There is no proof that Harta caused any injury to Bhima or that he took part in the assault committed on Bhima by Lachha or that he instigated Lachha in any manner to beat Bhima. In the absence of any evidence pertaining to common intention, Harta appellant cannot be held responsible for the individual act committed by Lachha appellant in voluntarily causing grievous hurts to Bhima. The assault on Bhima was not a premeditated one. It transpires from the evidence of Bhima itself that Lachha, all of a sudden, inflicted two blows on his neck and mandible with a lathi. There is no evidence, direct or circumstantial, led by the prosecution to show that the two appellants had a pre-arranged plan or a common intention to beat Bhima or to cause grievous injuries to him. Unless it is satisfactorily proved by the prosecution that there was meeting of minds between the two appellants prior to the assault made on Bhima by Lachha, Harta cannot be held vicariously responsible for the two grievous injuries caused to Bhima by Lachha.
10. The result of the above discussion is that I partly accept the appeal of Lachha and while setting aside his convictions and sentences under Sections 394/34 and 397, I.P.C. acquit him of the said charges, but convict him under Section 325, I.P.C. only and sentence him to undergo rigorous is imprisonment for eighteen months and to pay a fine of Rs. 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month. Lachha, appellant, is already in Jail. He shall serve out the sentences to him by this Court. However, the period of detention, if any, undergone by him during investigation, inquiry or trial of this case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him and his liability to undergo imprisonment, on such conviction, shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
11. The appeal of Harta is, however, accepted, his conviction and sentence under Section 394, I.P.C. are set aside and he is acquitted of the said offence. Harta is in Jail. He shall be released forthwith, if not required in connection with some other offence.