S.K. Mal Lodha, J.
1. By his judgment dated April 16, 1980, the learned Additional Sessions Judge (2), Hanumangarh convicted the accused Mahendra Singh under Sections 302 and 450, IPC and sentenced him to imprisonment for life with a fine of Rs. 500/- on the first count and five years rigorous imprisonment with a fine of Rs. 500/- on the second Count. Sentences were directed to run concurrently. The accused has come-up in appeal to challenge his conviction.
2. Briefly stated, the prosecution case, which in short and simple, is as follows: Aduram Kumbhkar aged about 40 years the deceased-victim in the case was living with his wife Mst. Parmeshwari(PWl) in the Dhani he had raised in the field situate in Mauja Surewala P.S. Tibi district Ganganagar. The accused is also a resident of the same village. In the forenoon of Oct. 20, 1974, Aduram went with Jaggasingh (PW 7) to village Surewala in order to get his motor-bearing repaired. Accused Mahendra Singh met them in the village. He asked Aduram to provide wine to him. Aduram refused to do so saying that he neither takes the drinks nor offers to anybody. This annoyed the accused. There was an exchange of hot words and altercation between the two. Jaggasingh (PW7) intervened and separated them. The accused threatened to settle the accounts in future. Aduram returned to his house, took his meals and retired in the Bethak to have a nap. His wife Mst. Parmeshwari (PW 1) went to provide fodder to the cattle standing under a Pipal tree situate nearby in the Dhani. While she was working there, the accused came with a Kassi in his hand and straight-away went in the Bethak where Aduram was sleeping. The accused started striking blows to Aduram with his Kassi Aduram raised cries. Mst. Parmeshwari (PW 1) went running to the Behak The accused still then continued to inflict blows. Thereafter he ran away towards the canal taking the Kassi with him. Mst. Parmeshwari (PW 1) also raised cries and a number of persons, viz., Laxman Butaram Darbarasingh and others came there. Some of them had seen the accused running away. Aduram, due to the infliction of injuries, became unconscious There was profuse bleeding from his wounds and the clothes he was wearing got drenched with it. Some persons went to the police out-post brought Police Constable Kashiram (PW 14) and the local Vaidhya Dharampal (PW 6) to the place of occurrence. Dharampal (PW 6) provided the First Aid to Aduram and pricked an injection to him. He advised Mst. Parmeshwari and others to take Aduram for treatment to Sangariya Hospital Mst. Parmeshwari and others took Aduram in a jeep to Sangariya. Ramjilal (PW 2) went to Police Station, Tibi and verbally lodged report Ex.P 1 of the occurrence at about 8.15 P.M. on the same day. The police registered a case under Section 307 and 452, IPC. The usual investigation ensued. When Aduram was taken to Sangariya Hospital, his injuries were examined by PW12 Dr. S.M. Sahi at about 5.00 P.M. He noticed the following injuries on his person:
(1) Incised wound 55' x 1-1/4' by bone deep starting from left side of face extending upto middle of occipital region cutting post lobule of left ear, face seems to have been pulled to right side
(2) Incised wound 3.3' x 0.2' x muscle deep on left maxillary region
(3) Incised wound 0.6' x 0.15' x muscle deep on left mandible region
(4) Three parallel incised wounds one below the other uppermost wound was 1 2' x 0.1' x skin deep; middle one 1' x 0.1' x skin deep, lowest one 1 2' x 0.1' x skin deep on left side of neck and shoulder region superiorly
(5) Incised wound 2.3' x 0.2' x Skin deep on right forearm anteriorly lower third
(6) Incised wound 1.6' x 0.2' x bone deep on right ring finger posterio medially
(7) Incised wound 0.4' x 0.1' x skin deep or right middle finger posteriorly on trunucle.
The doctor was of the opinion that all the injuries were caused by some sharp weapon. X-ray examination was advised for injuries No. 1,2 and 6 to ascertain their nature. The injury report issued by him is Ex. P 8. At Sangariya, the condition of Aduram did not improve and it was advised to take him for treatment of Ganganagar. He was consequently taken to Ganganagar and was admitted in the General Hospital for treatment. Despite medical treatment, Aduram did not survive and passed away at about 8.50 A.M. on October 24, 1974. Due to his death, the police added Section 302, IPC during investigation PW 11 Nisar Ahmed, Sub-Inspector Police, P.S. Kotwali Ganganagar went to the hospital, and prepared the inquest report of the dead body of Aduram The autopsy of his dead body was conducted by Medical Jurist Dr. M.D. Agrawal (PW 10). He noticed the following ante-morteai injuries on the victim's dead body:
(1) Stitched wound (transverse) 5' x stitched on the left side of neck extending from left occipital region to over left angle of mandible passing just below the left ear lobule
(2) Stitched wound (oblique) 3' x stitched on left side of face from left maxillary region to just below the left mandibular angle
(3) Stitched wound (obliquely transverse) on the left side of neck just below the mandibullar angle 1/2' x stitched
(4) Multiple abrasions on left side of neck on lateral dorsal aspect
(5) Lacerated wound l-1/4' x skin deep (transverse) on the posterio-superior aspect of left shoulder
(6) Stitched wound 2' x stitched (obliquely vertical) on the anterior aspect of the junction of middle and lower third of right fore-arm
(7) Stitched wound (vertical) 1-1/2' x stitched on the dorsal-medial aspect of distal and middle phallanges of right ring finger
(8) Incised wound 2/3' x 1/8' x skin deep (transverse) on the dorsal aspect of proximal inter phallangeal joint of right middle finger
(9) Laceration of lower lip 3/4' x 1/8' x 1/4' on the mucus surface with dark dried clotted blood on it.
Cranium and spinal cord:--Sub-calaneous soft tissue of scalp was congested all over brain and mencleanes were congested all over. There was intra careliral haemorrhage more so in the area of uncus
Pleurae-there were bilateral adhesion, Heart was full on both sides. Small intestines were healthy and contained partially digested food material and gas.
3. In the opinion of Dr. Agrawal, the cause of death of Aduram was head injury with intra cereberal haemorrahage and shock. He was also of the opinion that the internal injury alone was sufficient in the ordinary course of nature to causa death. The post-mortem examination report prepared by him is Ex. P6. The accused was arrested on October 26, 1974 and in consequence of the information furnished by him, the weapon of offence namely, Kassi was recovered. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Hamumangarh, who, in his turn, committed the case for trial to the court of Sessions. The learned Additional Sessions Judge framed charges under Sections 302 and 450, IPC against the accused. The accused pleaded not guilty and claimed the trial. Denouncing the whole prosecution, story as a false and fabricated piece of concoction, ha claimed absolute innocence. In his statement recorded under Section 313 Cr. PC he stated that he was casually visited with feats of insanity. Before proceeding with the trial, the accused was got medically examined. As per report Ex P 1 of Superintendent, Psychiatric Centre, Jaipur, he was found quite sane. The trial proceeded. In support of its case, the prosecution examined 15 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, both the charges were taken as duly proved against the accused. The accused was consequently convicted and sentenced, as mentioned at the very out-set. Aggrived against his conviction, the accused has taken this appeal.
4. We have heard the learned Amicus Curiae and the learned Public Prosecutor. We have also gone through the case file carefully.
5. In assailing the conviction of the accused, the first contention raised by Mr. Kumbbat is that there is no independent witness speaking about the occurrence. The accused was convicted on the solitary statement of the victim's wife Mst. Parameshwari (PWl). She was a highly interested person. As such, it would not be safe to base the conviction on the testimony of her evidence. It was argued that though a conviction can be based on the testimony of a single witness, the witness must be of sterling worth. It was contended that PW 1 Mst. Parmeshwari does not belong to this category of the witness. We have given our thoughtful consideration to the contention and find no force in it.
6. It is true that the prosecution case hinges entirely on the testimony of PW 1 Mst. Paremeshwari. It is also true that she is the widow of the deceased victim. But the testimony of a witness cannot be thrown away overboard on the sole ground of his/her being a close relative of the deceased victim. The fact that an eye witness is a close relative of the deceased-victim does not detract from the evidentiary value to be attached to his testimony. The relationship is only an element to be taken into consideration while assessing and evaluating the evidence. The relationship merely requires that the evidence should be scrutinized more critically and carefully.
7. We have carefully gone through the statement of Mst. Parmeshwari (PW 1) and find no reason to distrust what she testified on oath. She stated that after taking the food, her husband Aduram retired in the Bethak to have a nap. She went to the cattle to provide fooder to them. That place is situate quite near to the Bethak. While she was working there, the accused suddenly came with a Kassi and straight away went in the Bethak. There he started inflicting blows to Aduram with his Kassi. Aduram raised cries. She went running towards the Bethak and saw the accused landing blows to Aduram. She also raised cries. The accused them ran away towards the canal She has given a graphic picture of the incident. Her presence on the spot is quite natural and beyond any suspicion. The occurrence had taken place in her own Dhani where she was expected to be present. She has no ill-will or enmity against the accused. No reasons have been subscribed before us as to why she would depose falsely against the accused. Normally, a close relative of the deceased does not spare the real assailant and does not substitute an innocent person in place of the real culprit. The possibility of false implication completely disappears if the assailant is only one. Mst. Parmeshwari (PW 1) was cross-examined at length but nothing could be elicited from her which may make her testimony unworthy of belief or credence. She has acquitted herself with success in her cross-examination. There is nothing in her statement which may induce us that she has been falsely introduced as an ocular witness of the occurrence. The trial court placed implicit faith on what she testified. On a careful reading of her statement, we are unable to take a view different from that taken by the learned Additional Sessions Judge.
8. No doubt, she is the solitary witness of the incident. An accused can be convicted on the basis of the evidence of a single eye witness provided such a witness is of sterling worth. No particular number of witnesses is required to prove a fact. Evidence has to be weighed and not to be counted. It is the quality and not the quantity of evidence which proves the guilt or innocence of the accused. In order to base the conviction on the testimony of a solitary witness, the witness should be above reproach and his testimony should be such that it can be accepted and acted upon without any reservations. To us, PW 1 Mst. Parmeshwari appears to be a witness of sterling-worth and faith can be safely pinned on what she testified. We are, therefore unable to accept the contention of the learned amicus curiae that it would be unsafe to maintain the conviction of the accused on the testimony of this solitary witness Mst. Parmeshwari (PW 1).
9. There are then various circumstances affording ample corroboration the testimony of this witness Mst. Parmeshwari. She raised cries and disclosed the story before so many persons when they collected on the spot within a few seconds of the occurrence. PW 2 Ramjilal, PW 4 Jhandu, PW 5 Santosh, PW 6 Dharampal, PW 7 Jaggasingh and PW 8 Darbarasing have stated that when they reached the place of occurrence and saw the deceased lying in an unconscious condition with bleeding wounds over his body, Mst. Parmeshwari told them that her husband Aduram was assaulted, belabored and landed blows by the accused Mahendra Singh. These persons had collected on the spot within a few seconds of the incident. There was no time left to Mst. Farmeshwari PW 1 to invent a false story against the accused.
10. Some of the persons had also seen the accused running away from the place of occurrence. PW 4 Jhandhu, PW 5 Santosh and PW 8 Darbarasinah deposed that when hearing the cries, they rushed to the place of occurrence, they saw the accused running away towards the canal. All these witnesses are independent persons having no grudge against the accused. Their seeing the accused fleeing away from the place of occurrence towards the canal affords a material corroboration to the testimony of Mst. Parme-shwari (PW 1), The first contention of the learned amices curiae, thus, fails.
11. It was next contended by Mr. Kumbhat that the offence made out is not that under Section 302 but falls under Section 304, IPC. It was argued that the occurrence took place in the noon of October 20, 1974 and the accused breathed his last on October 24, 1974 i.e. nearly after five days, accused had no motive to kill Aduraru. All that was done by him was the out come of a thoughtless mind. He got infuriated and annoyed. There was, thus, no guilty intention on his part. We again find no substance in the contention. The deceased was inflicted as many as seven injuries with a Kassi which is sharp-edged weapon. The injuries were hit on a vital part like head Aduram became unconscious on the spot on the infliction of the injuries and never regained senses thereafter. According to Dr. Saini (PW 12), injury No. 1 was in itself sufficient in the ordinary course of nature to cause death. PW 10 Dr. Agrawal who conducted the post-mortem examination also stated that the internal injury intra-cereberal hemorrhage which was the result of external injury No. 1 alone was sufficient in the ordinary course of nature to cause death. The fact that the victim did not die instantaneously on the spot and struggled for life for four or five days, does not take out the case from Clause 3rdly of Section 300, IPC. The accused intentionally caused injuries on the vital part like head with a kassi. A Kassi is a dangerous instrument and can be easily wielded for deadly effects. The weapon used and the head chosen for the infliction of the injuries leave no room for any doubt that the accused intended to cause death of the victim.
12. The learned amicus curiae invited our attention to Kishoresingh and Ors. v. State of Madhya Pradesh (1977 Cr. LR (SC) 436) and Doongar v. State of Rajasthan (1984 Cr. LR 139), to which one of us was a party. We have gone through these decisions and none of them renders any help to the accused. In Kishoresingh's case, the death of the deceased took place a month after the occurrence. In Doongar's case, the intention to cause particular injury was missing. The deceased and the accused were real brothers. Thus, the decisions are clearly distinguishable on facts.
13. Since injury No. 1 of the deceased was sufficient in the ordinary course of nature to cause death, the case is covered by Clause 3rdly of Section 300 and the offence made out is punishable under Section 302 IPC.
14. A very feeble and faint attempt was made by Mr. Kumbhat to impress us that the accused was insane and of imbalanced mind at the time of the occurrence. There is nothing on record in support of this contention. As stated earlier, the accused was found sane on medical examination. The contention has, thus, no substance.
15. It was lastly argued that the period of detention undergone by the accused should be set-off under Section 428, Cr.PC against the term of imprisonment imposed on him. Mr. Kumbhat is right in his submission. The period of detention should be set-off Under Section 428 Cr.PC.
16. In the result, the appeal of accused Mahendra Singh is dismissed. His convictions and sentences are maintained. It is hereby directed that the period of detention, if any, undergone by him during the investigation, enquiry or trial before the date of conviction shall be set-off against the term of imprisonment imposed on him.