Alil Mollah
& Anr Vs. State of West Bengal [1996] INSC 822 (18 July 1996)
Anand,
A.S. (J) Anand, A.S. (J) Thomas K.T. (J)
CITATION:
1996 SCALE (5)471
ACT:
HEAD NOTE:
O R D
E R
This
appeal by special leave is directed against the judgment of the High Court
dated 29th April, 1987 upholding the judgment of the trial
court dated 19th
September, 1985
whereby the appellants were convicted for an offence under Section 302/34 IPC
and sentenced to imprisonment for life.
On 4th February, 1982 at about 5.30 p.m. one Elem Bux Molla, owner of a brick kiln at Dhib Dhipa
was on his way to Dhib Dhipa Bazar for taking tea and snacks when he was
accosted by 4-5 persons, including the appellants herein.
Appellant
No.1 fired upon him with his gun as a result of which he fell down. Appellant
No.2 slit the throat of Elem Bux with a knife and after raising slogans 'Inquilab
Zindabad' all the miscreants including the appellants fled away. According to
the prosecution story PW.3 and PW.6, both employees of Elem Bux, witnessed the
occurrence. Din Mohammad, PW.1, another employee of the deceased heard the
sound of gun shots coming from the side of Dhib Dhipa Bazar and he run towards
that place from the field where he was working. On reaching Harwa-Lauhati Road he saw some 4-5 persons running
away towards the north along Boalghata Road
shouting slogans 'Inquilab Zindabad'. At a little distance he found his master Elem
Bux lying in a pool of blood with his throat slit. Some other persons were
present at a distance. PW.3 was also seen there and then PW.1 immediately
rushed to Police Station Bangar and lodged First Information Report at about 8.30 p.m. In the First Information Report he stated that
"some unknown miscreants" had committed the murder of Elem Bux. On
receiving the information, the police officer on duty, PW.12, after registering
the formal First Information Report took up the investigation in hand. He left
for the place of occurrence at about 10.00 p.m. On reaching the place of occurrence he found the dead body lying on the
road. Many people had collected there. He seized a number of incriminating
articles from the spot including some empty cartridges etc. He held inquest on
the dead body of Elem Bux and sent the dead body for post-mortem examination.
On completion of the investigation, charge sheet was filed against the
appellants for an offence under Sections 302/34 IPC. The trial court, as
already noticed, convicted them for the offence under Section 302/34 IPC and
sentenced them to suffee life imprisonment. The appellants unsuccessfully
challenged their conviction and sentenced before the High Court.
Both
the trial court and the High Court , disbelieved PW.6 Tassiruddin Molla whom
the prosecution had set up as one of the eye witnesses. Both the courts,
however, relied upon the testimony of Altab Molla, PW.3. The conviction of the
appellants is based upon the testimony of a single eye witness, PW.3. Both the
courts found PW.3 to be a reliable witness and his evidence sufficient to
convict the appellants.
Learned
counsel for the appellants submitted before us that PW.3 was not a wholly
reliable witness and his conduct was so unnatural that it would be unsafe to
rely upon his testomony to uphold the conviction of the appellants.
Learned
counsel, in this connection, pointed out that though PW.3 was an employee of
the deceased, after seeing the ghastly assault on his master, he not only did
not go to the police but did not even disclose what he had seen to anybody at
his home or in the village or even at the place of his work till the next day
and that too only after his statement was recorded by the police during the
afternoon of the next day i.e. 5th February, 1982. Mr. Puri, learned counsel
appearing for the respondent on the other hand argued that since PW.3 has been
relied upon by both the trial court and the High Court, this court need not, in
this appeal by special leave, go into the correctness of the findings recorded
by the courts below on the basis of appreciation of evidence. It is submitted
that from the evidence of PW.3 the offence against the appellants stood amply
established.
We
have given our thoughtful consideration the respective submissions made at the
Bar.
That
the entire case revolves around and rests on the testimony of PW.3 only is not
in doubt. It is now well established that conviction can be based on the
testimony of a single eye witness provided the court finds from the scrutiny of
his evidence that he is a wholly reliable witness. Where, however, the court is
of the opinion that the single eye witness is only partly reliable, prudence
requires that corroboration of his testimony in material particulars should be
sought before recording conviction. It is in the light of these-well settled
principles that we shall examine the testimony of PW.3.
On his
own showing PW.3 was an employee of the deceased. He was present, according to
his testimony, when the deceased was assaulted by the appellants. He admits
that after committing the crime the appellants and their associates fled away.
The witness, however, not only did not raise any alarm when his master was
being assaulted, he did not go near his employer even after the assailants had
fled away to see the condition in which the employer was after having suffered
the assault. According to him he got frightened and fled away to his home. He
also admitted in his cross--examination that neither at his home nor in the
village did he disclose what he had seen in the evening of 4th February, 1982 to any one. Though in the morning
of the following day, the witness went to the brick fields of the
deceased-employer and many of his co-employees were also present there, he
admitted that he did not disclose the occurrence to anyone of them and went on
to concede that even to the Manager of the brick-fields he gave the information
about the occurrence only 2-3 days after the occurrence. His statement was
recorded by the police on the next day in the afternoon. This conduct of the
witness that he did not tell anyone about the occurrence till the next day
appears to be rather unnatural and creates an impression that he had not
witnessed the occurrence. The witness however tried to take shelter on the plea
that he was "frightened" and therefore till he appeared before the
police, he did not pick up courage to inform anyone either in the village or on
the brick-fields regarding the occurrence. This plea does not impress us. From
the statement of the investigating officer, PW.12, we find that after having
visited the scene of occurrence, he went to the village where the witness
resides, on the night of 4th
February, 1982 and
remained there till 5th
February, 1982.
It is
not understandable why the witness who was in the village did not appear before
the investigating officer, when he was camping in the village throughout the
night or even the next morning. No explanation whatsoever has been offered by
him. PW 3, in view of his unexplained silence, delayed statement to the police
and relationship with the deceased, thereof, does not appear to us to be a
wholly reliable witness. There is no corroboration of his evidence from any
other independent source either. In the absence of any corroboration of his
testimony we find it rather unsafe to rely upon the evidence of PW.3 only to
uphold the conviction and sentence of the appellants. Indeed both the courts
below have relied upon the statement of PW.3 and found him to be a reliable
witness but unfortunately neither the trial court nor the High Court have
adverted to the admissions made by the witness in his cross-examination, which
we have noticed above. Though this Court sitting in appeal by special leave
does not normally re-appreciate the evidence, which has been appreciated by the
two courts below unless there are compelling reasons but with a view to satisfy
our judicial conscience we have examined the statement of PW.3 critically and
are of the opinion that the appreciation of his evidence by both the courts
below was not proper as admissions made by him in his cross- examination which
materially detracted from his reliability were not at all noticed by the courts
below thereby resulting in miscarriage of justice. To perpetuate an error is no
virtue but to ractify it is a compulsion of judicial conscience. We find
ourselves unable to agree with the findings recorded by the courts below with
regard to the reliability of PW3. There is no corroboration of his evidence to
connect the appellants with the crime. In our considered view, on the basis of
critical analysis of the evidence on the record, we are of the opinion that the
case against the appellants has not been proved beyond a reasonable doubt.
Consequently, this appeal succeeds and is allowed. The conviction and sentence
of the appellants is hereby set aside. The appellants are on bail. Their bail
bonds shall stand discharged.
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