Yakub
Ismailbhai Patel Vs. State of
Gujarat [2004]
Insc 506 (31 August 2004)
K.G. Balakrishnan & Dr. AR. Lakshmanan Dr. AR. Lakshmanan, J.
The present criminal appeal arises out of the judgment and order dated
29.08.2003 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal
No.
327 of 1998 wherein the High Court confirmed the conviction of the Appellant
along with two other co-accused for offence under Section 302 read with Section
34 of the I.P.C. and sentenced them to imprisonment for life.
The brief facts of the present case are as under:
On 25.08.1995 at about 13.15 hrs. the Ahmedabad Railway Police received a
Vardhi from one Abdulmajid that a knife blow has been inflicted on Nazim at
Kankaria Loco Shed. On the strength of the said entry, Police Sub-Inspector
went to the scene of occurrence, prepared inquest report of dead body and also
drew panchanama of scene of occurrence. In the meantime, at about 17.40 hrs.
complaint was given by Munna @ Gheti Mohamadshafi Shaikh. In the said complaint,
it is stated that he happens to be a friend of Nizamuddin Ismailbhai (deceased)
for the last 15 years and the said Nizamuddin has been allotted one quarter in
B scale colony of Kankaria railway colony, but he was not residing there. He
gave the quarter to his relative.
Nearby the quarter of Nizamuddin, Yakubbhai Patel (accused No.1) was
residing. The Complainant also used to visit the said quarter along with
Nizamuddin. On 24.08.1995, there was altercation and quarrel in between accused
No.1 and deceased in respect to the said quarter, as he wanted to get it
evicted. On 25.08.1995, the day of the incident, while the said Munna @ Gheti
was returning from the house of his friend, somewhere near Kankaria railway
colony, he saw accused No.1 and accused No.2 along with other person. They were
running. There was Jamaiya (kukari) in the hands of accused Nos.1 and 2.
Therefore, he went towards the fuel room of diesel shed, where he saw the dead
body of Nizamuddin in a pool of blood lying near the railway track. One Raju
was also there. In the inquiry, he could gather from the said Raju that accused
No.1 and 2 along with one another person had inflicted injuries on the person
Nizamuddin and thus has resulted into death. The said Munna had also seen the
injury on the throat and on the face of Nizamuddin.
During investigation, police recorded the statements of witnesses,
panchanamas were drawn in respect of the clothes of the deceased, discovery of
weapons at the instance of the accused persons and post mortem note of the
deceased was collected.
Incriminating articles were also collected for having scientific
examination. Police arrested accused Nos. 1 and 2 and Tapan @ Tondi Shashdhar
accused No.3 on 19.09.1995. After completion of investigation, accused came to be
charge-sheeted on 16.12.1995 before the Metropolitan Magistrate, Court No.5,
Ahmedabad. The said charge-sheet was for the alleged offences punishable under
Sections 302 and 304 of the I.P.C. and Section 135 of the Bombay Police Act. It
was numbered as Criminal Case No. 2833 of 1995. The Metropolitan Magistrate, in
turn, committed the said Criminal Case No. 2833 of 1995 of his file to the
Court of Sessions Ahmedabad on 01.02.1996 and it was numbered as Sessions Case
No. 101 of 1996. Charge was framed against all the three accused. They pleaded
not guilty to the charges and claimed to be tried.
The prosecution, in order to prove the charge against the accused, examined
14 witnesses and also relied on documentary evidence which consisted of FIR,
Panchanama of place of incident, recovery of weapons panchanama from the
present appellants. The appellants have also examined D.W. 1 Munna @ Gheti
Mohammadsami Shaikh and produced documentary evidence.
After the prosecution case was over, the appellants were questioned with
regard to the evidence led by the prosecution against them and their statements
were recorded under Section 313 of the Code. In their further statements, all
the appellants have denied the alleged part played by them in the commission of
the offence.
However, they gave application to examine the Complainant Munna @ Gheti
Mohammadshafi Shaikh as defence witness.
The Additional Sessions Judge, after appreciating the oral and documentary
evidence and arguments advanced by the respective counsel for the prosecution
as well as the defence, held that on the day of incident i.e. 25.08.1995 all
the appellants had common intention to kill the deceased. It was further held
that the deceased Nizamuddin died a homicidal death. In the light of this, the
Additional Sessions Judge convicted all the appellants and sentenced them, as
stated above, which has given rise to the appeal before the High Court. The
High Court, after considering the entire evidence and the facts and
circumstances of the case, found themselves in complete agreement with the
reasoning and findings of the Sessions Judge and dismissed the appeal and gave
liberty to the trial Court to proceed against the witness Munna @ Gheti under
Section 344 of the Cr.P.C. Aggrieved by the order of the High Court, the
appellant has preferred the special leave petition before this Court. Leave was
granted on 12.01.2004.
We heard Mr. Huzefa Ahmadi, learned counsel appearing for the Appellant ably
assisted by Mr. Nakul Dewan and Mr. Ejaz Maqbool and Mr. Madhukar, learned
counsel for the Respondent ably assisted by Ms. Sadhana Sandhu and Ms.
Hemantika Wahi. We have been taken through the pleadings, the evidence let in
and the documents produced by learned counsel appearing on either side.
Mr. Huzefa Ahmadi, learned counsel appearing for the appellant, made the
following submissions:
a) the Courts below have relied upon the sole testimony of PW-2 and,
therefore, no reliance can be placed on the statement of PW-1;
b) the Courts have disbelieved the statement of PW-1 and have based the
conviction solely on the ocular testimony of PW-2;
c) No other eye-witness supports the case;
d) In any event, it is evident that the statements of PW-1 and PW-2, far
from establishing their respective presence near the railway tracks are, in
fact, contradictory. In order to establish the above contention, learned
counsel for the appellant drew our attention to the following extract from the
judgment of the High Court:
"Thereafter, he saw the body of deceased Nizamuddin lying in a pool of
blood. He saw Raju standing near the body for Nizamuddin. Raju told the witness
that Yakub Patel and other accused persons gave blow to Nizamuddin and ran
away. Subsequently, Raju and witness went to police station to lodge complaint
which is given mark 10/1.
The witness came after some time and he saw the body of Nizamuddin at a
distance of 200 ft. from the office. He did not see any blood on way to his
office. Munna @ Geti was standing near deceased Nizamuddin before witness went
there." According to learned counsel for the appellant, the following is
evident from the above extract:
? There is clear dichotomy between the statements of PW-1 and PW-2 as
regards who was there first at the railway tracks near the body;
? If, indeed, the sole eye-witness PW-2 is to be believed, then it is PW-1
who reached the railway tracks first and not vice versa. Therefore, PW- 1's
statement that he had seen three persons running away while he was approaching
the railway tracks and that he was told by PW-2 that said persons killed the
deceased is wholly unbelievable.
Learned counsel for the appellant further submitted that no T.I. Parade was
conducted for accused No.1. Learned counsel also pointed out the discrepancy
between medical and ocular evidence. It was submitted that while the witnesses
deposed that the accused had used jamiyas/kukaris which are blunt edged
weapons, the medical evidence and the wounds show that sharp edged weapons were
used.
Learned counsel drew our attention to pages 17, 19, 22 and 23 of Volume-I of
the paper-book.
It was further submitted that the weapon of offence was alleged to be
kukari/jamiya which is a blunt weapon whereas the medical evidence shows that
there were as many as 24 wounds caused by the sharp edged weapons. It was,
therefore, submitted that the High Court in view of the discrepancy between the
medical and ocular evidence ought not to have relied upon the ocular evidence
to convict the accused.
The learned counsel brought to our notice the following discrepancies in the
case of the prosecution:
STATEMENT OF PW-2:
The case of PW-2 is that on the request of the deceased, he accompanied the
deceased to his office in order to enable the deceased to file a sick note.
However, PW-2 had stated in his deposition that the deceased had not signed the
muster roll, which the High Court has recorded as under:
"When they went to diesel shed on scooter, Nizamuddin did not sign the
muster roll".
The statement of PW-2 is, however, belied by the fact that the muster roll
was signed by the deceased. The High Court has recorded this as under:
"As per muster roll exh. 66 it is clear that on 25.08.1995 the deceased
was present on his duty." He would submit that in view of the High Court
noting the discrepancy, it ought not to have continued to place reliance on the
statement of PW-2.
It was further submitted that PW-2 is not an employee of the railway and
otherwise not a person who would ordinarily be at the scene of the offence. It
was his submission that because the deceased was sick, at 7.30 AM he took the
deceased to drop a sick note. The case of the prosecution is that both the
persons were at one office for two and a half hours and then in another office
for another two and a half hours and were, therefore, together from 12.30 AM to
1.00 PM when the alleged incident took place.
According to learned counsel for the appellant, it is inconceivable to
believe that:
i. A person who is sick and needs to be taken to office by a friend in order
to drop a sick note, will continue to remain present in office;
ii. Even if the deceased had, in fact, decided to stay on, it is
unbelievable that his friend would continue to remain with him and not attend
to his daily work.
iii. Lastly, it is not as if the case of the prosecution is that the
deceased had changed his mind about the sick note, or that he was feeling
better on reaching his office. PW-2 has stated that the deceased did not sign
the muster roll, a fact which has not proved to be untrue.
SCENE OF THE OFFENCE:
In the deposition of PW-12, Police Sub-Inspector, the scene of the offence
has been stated to be between two railway tracks. According to learned counsel
for the appellant, this is contrary to the deposition of PW-2, who states that
the deceased was attacked in the diesel shed 200 meters away. Learned counsel
invited our attention to appreciate the deposition of PW-12, the Investigating
Officer.
He has admitted that Fuel Room, gate of Fuel Room and the tracks of railway
are distinct places. He volunteers that though, it may be called distinct, but
it is nearby.
He has admitted that no blood sample was obtained from the Fuel Room. He has
admitted that he has not shown date and time of preparation of report exh. 48
when he reached at Loco Diesel Shed, dead body was not there. Dog squad was
available however no trace was found out.
According to the learned counsel for the appellant, there is no explanation
of how the body came to be found 200 meters away. No investigation was done on
that behalf and even the dog squad could not determine the trace. Therefore, it
is submitted that the prosecution version is not believable.
NO OTHER EYE-WITNESS SUPPORTS THE CASE:
Learned counsel for the appellant submitted that PW-2 in his deposition has
stated that there were four other railway employees who were present at the
scene of offence and, therefore, their deposition becomes necessary for
unfolding the narrative.
In the present case, out of the four other alleged eye-witnesses, the
prosecution only called upon PW-3 and PW-9 to depose as eye-witnesses and even
these two eye- witnesses did not support the case of the prosecution. Thus it
is submitted that the failure of the prosecution to call all material witnesses
leads to an adverse inference against the prosecution under Section 114:
illustration (g) of the Indian Evidence Act.
THE STATEMENT OF P.W.1 IS UNRELIABLE:
The learned counsel for the Respondent submitted that the statement of PW- 1
supports the case in identifying the accused persons. It was also his
submission that the statement of PW-1 established the presence of PW-2 at the
scene of the offence.
According to learned counsel for the appellant, the said submission is
devoid of merits for the following reasons:
a) the Courts below have relied upon the sole testimony of PW-2 and, therefore,
no reliance can be placed on the statement of PW-1 at this stage;
b) the Courts have disbelieved the statement of PW-1 and have based the
conviction solely on the ocular testimony of PW-2;
c) In any event, it is evident that the statements of PW-1 and PW-2, far
from establishing their respective presence near the railway tracks are, in
fact, contradictory.
The learned counsel for the appellant made two legal propositions for
consideration of this Court:
(1) THE TESTIMONY OF A SINGLE EYE-WITNESS MUST BE ENTIRELY RELIABLE FOR A
CONVICTION:
According to Mr. Huzefa Ahmadi, the test for relying on the testimony of a
sole eye-witness is based on the rule of caution, expounded by this Court in a
catena of judgments. He placed reliance on the following judgments:
1) Joseph vs. State of Kerala, (2003) 1 SCC 465 which prescribes that the
evidence of other witnesses must corroborate the single eye-witness.
"When there is a sole witness to the incident his evidence has to be
accepted with an amount of caution and after testing it on the touchstone of
the evidence tendered by other witnesses or evidence as recorded. Section 134
of the Indian Evidence Act provides that no particular number of witnesses
shall in any case be required for the proof of any fact and, therefore, it is
permissible for a court to record and sustain a conviction on the evidence of a
solitary eyewitness. But, at the same time, such a course can be adopted only
if the evidence tendered by such witness is cogent, reliable and in tune with probabilities
and inspires implicit confidence. By this standard, when the prosecution case
rests mainly on the sole testimony of an eyewitness, it should be wholly
reliable. Even though such witness is an injured witness and his presence may
not be seriously doubted, when his evidence is in conflict with other evidence,
the view taken by the trial court that it would be unsafe to convict the
accused on his sole testimony cannot be stated to be unreasonable.
Particularly, when the trial court had given cogent reasons to acquit the
accused, the High Court ought not to have interfered with the same merely
because another opinion is possible and not that the finding concluded by the
trial court was impossible. The High Court did not follow the aforesaid standard
but went on to analyse evidence as if the material before them was given for
the first time and not in appeal.
(Paras 12 & 13) 2) Suresh Chaudhary vs. State of Bihar, (2003) 4 SCC 128
In the above case, this Court while setting aside the sentence of conviction of
two Courts below advocated the Rule of Caution.
3) The Rule of Caution has also been advocated by this Court in Shahbuddin
Abdul Kahlik Shaikh vs. State of Gujarat, 1995 Supp (2) SCC 441.
4) The aforesaid judgments are based on the judgment of this Court in
Vadivelu Thevar etc. vs. The State of Madras etc., AIR 1957 SC 614 wherein this
Court has divided the appreciation of evidence into three categories, namely:
(1) wholly reliable;
(2) wholly unreliable; and (3) Neither wholly reliable nor wholly unreliable
and thereafter stated that 'it becomes the duty of the court to convict, if it
is satisfied that the testimony of a single witness is entirely reliable'.
5) The above view emerges from the view of the Privy Council in Mohamed
Sugal Esa vs. The King, AIR 1946 PC 3.
"In England where provision has been made for the reception of unsworn
evidence from a child it has always been provided that the evidence must be
corroborated in some material particular implicating the accused. But in the
Indian Act there is no such provision and the evidence is made admissible
whether corroborated or not. Once there is admissible evidence a Court can act
upon it; corroboration, unless required by statute, goes only to the weight and
value of the evidence. It is a sound rule in practice not to act on the
uncorroborated evidence of a child, whether sworn or unsworn, but this is a
rule of prudence and not of law." Mr. Ahmadi, in view of the above
judgments and of the facts stated above, submitted that the statement of PW-2,
sole eye-witness fails to meet the test of 'entire reliability' and, therefore,
cannot be the basis for convicting the accused and that the testimony of PW-2
to the effect that there were other employees present at the time of the
occurrence is belied by the evidence of two of the said employees, who have
deposed otherwise and, therefore, the evidence of the other two witnesses far
from corroborating the sole eye-witness account in fact belies it.
The learned counsel for the appellant then concentrated on the second legal
proposition, namely, non-production of material witnesses leads to an adverse
inference against the prosecution:
It was contended that it is the duty of the prosecution to produce all
material witnesses and failure thereof leads to an adverse inference under
Section 114, illustration (g) of the Indian Evidence Act, 1857.
This Court in Habeeb Mohammad vs. The State of Hyderabad, [1954] SCR 475 at
490 extracting from the judgment of the Privy Council in Stephen Senivaratne
vs. The King, AIR 1936 PC 289 stated as under:
"Witnesses essential to the unfolding of the narrative on which the
prosecution is based, must, of course, be called by the prosecution, whether in
the result the effect of their testimony is for or against the case for the
prosecution." The above two judgments have been relied upon by this Court
in the case of State of U.P. and Anr. vs. Jaggo Alias Jagdish and Ors. 1971 (2)
SCC 42.
It was submitted that while the prosecution is not necessarily required to
call upon each and every witness, it is bound to call all witnesses who are
material to the unfolding of the narrative and failure to do so, leads to an
adverse inference. In the present case, the other two eye-witnesses did not
support the prosecution and it can thus be inferred that the other
eye-witnesses would also not support the version of the prosecution and in
these circumstances, the Courts below have erred in relying upon the sole
statement of PW-2 for convicting the accused.
Concluding his argument, Mr. Huzefa Ahmadi, submitted that the accused have
spent over seven years in jail and if this Court is to allow the present
appeal, it would only be trite to allow the appeal qua accused Nos. 2 and 3 who
were unable to approach this Court. For this, the learned counsel for the
appellant, relied on the judgment of this Court in Suresh Chaudhary's case
(supra) wherein relying on precedents, the Court stated as under:
"This Court in a catena of cases has held where on the evaluation of a
case this Court reaches the conclusion that no conviction of any accused is
possible, the benefit of doubt must be extended to the co-accused similarly
situated though he has not challenged the order of conviction by way of an
appeal. [See Bijoy Singh vs. State of Bihar, (2002) 9 SCC 147]. This Court
while rendering the above judgment has placed reliance on some other judgments
of this Court in Raja Ram vs. State of M.P., (1994) 2 SCC 568, Dandu Lakshmi
Reddy vs.
State of A.P., (1999) 7 SCC 69 and Anil Rai vs. State of Bihar, (2001) 7 SCC
318 wherein this Court had taken a similar view. Following the above dictum of
this Court in the judgments noticed by us hereinabove, we are of the opinion
since we have come to the conclusion that no conviction of any accused is
possible based on the prosecution case as presented, it becomes our duty to
extend the benefit of acquittal in these appeals also to a non-appealing
accused, therefore, Sona @ Sonwa Chaudhary who is the first accused before the
Sessions Court in Sessions Trial No. 417 of 1993 and who was the first
appellant before the High Court in Crl. A. No. 88 of 1995 will also be
acquitted of all the charges of which he is found guilty by the two courts
below".
Concluding his argument, learned counsel submitted that the prosecution has
failed to prove the case beyond reasonable doubt and, therefore, the accused
appellant ought to be acquitted.
Learned counsel for the State of Gujarat Mr. Madhukar while justifying the
judgments of the Courts below submitted that the body of the evidence produced
by the prosecution against the appellant consisted of the following:- 1.
Testimony of eyewitness to the incident (PW-2);
2. Motive;
3. Evidence relating to Recovery of weapons at the instance of the accused;
4. Medical evidence;
5. Absence of accused from railway duty and their arrest only after 24 days
of incident;
After narrating the case of the prosecution and the evidence and documents
produced, he submitted that it has come in the evidence of PW-1 and PW-2 that
both the witnesses were known to the deceased as well as the appellant accused
and the testimony of both these witnesses has been relied upon by the trial
Court and the High Court to base the conviction of the appellant.
He invited our attention to paras 20, 21 and 29 of the High Court's order
and paras 50-53 of the trial Court's order of PW-2 Akbar Khan @ Raju. This
witness is an eye-witness to the incident. The two other eye-witnesses who were
examined by the prosecution turned hostile during the trial and thus this
witness was rendered in the position of being the sole eye-witness. We have
perused the evidence of PW-2. It has given in his testimony that on the fateful
day of the incident, he escorted the deceased to the railway office in order to
enable him to place a sick note in the railway office.
PW-2 has specifically stated in that while he has present in the railway
office, the appellant along with the co-accused threatened and attacked the
deceased with sharp dangerous weapons on his neck. It is the version of PW-2
that on witnessing this ghastly attack, he ran away from the spot out of fear.
He came back from the hiding after sometime and saw the dead body of the
deceased while PW-2 was near the body.
He has stated to have met PW-1. In fact, PW-1 who is also the Complainant
was accompanied by PW-2 to the Police Station for lodging of the complaint.
The testimony of this witness, in our opinion, proves and corroborates the
presence of the Complainant PW-1 and vice-versa. PW-2 does not claim to have
seen the entire attack but has categorically deposed about having seen the
initial attack by the appellant and co-accused with sharp edged weapons on a
vital organ of the deceased, namely, the neck.
The testimony of PW-2, in our view, is wholly believable and worthy of
inspiring confidence but is also sufficient by itself to prove the case against
the appellant and that the credibility of this witness has not been impaired in
the cross-examination by the appellant. This witness has stuck to his police
statement and the subsequent examination in chief in Court where he identified
the appellant accused as well as the co-accused as the assailants of the
deceased. This deposition, in our view, proved the intention of the accused to
cause the death of the deceased inasmuch as he deposes that the assault was
directed at the neck of the deceased. It is also not the case of the appellant
that this witness was inimical to the appellant or that there was a reason for
PW-2 to implicate the appellants falsely. The factum of his friendship with the
deceased does not reduce PW-2 to the position of being an interested witness.
The learned counsel for the appellant has argued before this Court as well
as the Courts below that the conduct of this witness in not saving the life of
his friend, the deceased, renders him an improbable witness. In our view, the
act of this witness in running away to save his own life and not going forward
to help the deceased at the time of the incident is a most probable and natural
human conduct which most men faced in such situation would resort to. In our
view, the conduct of PW-2 in not having the courage to stop three persons armed
with deadly sharp edged weapons is not and cannot be a circumstance or a ground
to disbelieve his testimony particularly when the rest of his testimony is
tested with cross-examination.
Next we analyse the evidence of PW-1 Munna @ Gheti. Our attention was drawn
to the various paras in the trial Court's order and the High Court's order of
this witness. PW-1's evidence was relied upon by the trial Court and also by
the High Court. The most important feature of the testimony of this witness is
that he corroborates the presence of the eye-witness PW-2 at the spot. It is
submitted that in face of the specific deposition of this witness, the PW-2 was
present at the spot the doubts sought to be raised by the appellant in receipt
of the sick note of the deceased and the subsequent staying back at the office
are rendered irrelevant and insignificant.
PW-1 has deposed that he was known to the deceased and the appellant and
that there were altercation on 24.08.1995 between the appellant and the
deceased in respect of the railway quarter. It is the version of this witness
that on the day of the incident he saw the present appellant running away and also
saw the deceased in the pool of blood. Raju was present there. PW-1 has deposed
as prosecution witness that while he was returning from railway colony after
meeting his friend at about 12.00 noon accused Nos. 1 and 2 and one another
were being seen by him, they were running away. PW-1 has identified the
appellants and the co-accused in the Court. Thus, it is clear from the
testimony of Munnabhai @ Geti as a prosecution witness that although he is not
an eye-witness of the incident, yet he throws light on the conduct of the
accused on the day of the incident around the time of incident. His testimony
together with the testimony of Investigating Officer corroborates the presence
of PW-2 at the place of the incident.
Significantly this witness, later on filed an affidavit, wherein he had
sworn to the fact that whatever he had deposed before Court as PW-1 was not
true and it was so done at the instance of Police.
The averments in the affidavit are rightly rejected by the High Court and
also the Sessions Court. Once the witness is examined as a prosecution witness,
he cannot be allowed to perjure himself by resiling from the testimony given in
Court on oath. It is pertinent to note that during the intervening period
between giving of evidence as PW-1 and filing of affidavit in Court later he
was in jail in a narcotic case and that the accused persons were also fellow
inmates there.
It was argued by the learned counsel for the appellant that no
identification parade was conducted for the accused. The Investigating Officer
has stated in his testimony that the test identification parade was not
necessary in the instant case. This apart, both the witnesses PW-1 and 2 have
categorically stated in their deposition that they knew the appellant from the
past.
RECOVERY:
It is seen from the records that a weapon of offence has been recovered at
the instance of the appellant from his own house. The testimony of the panch
witness PW- 6 in respect of the recovery and the appellant's identity therein
has remained unshaken during extensive cross-examination and blood stains were
also seen on the said weapon recovered at the instance of the accused.
MEDICAL EVIDENCE:
We shall now see the medical evidence. There were as many as 24 injuries on
the dead body of the deceased. The High Court says that all injuries were ante
mortem in nature and death was caused in this case due to haemorrhage and shock
as a result of multiple injures sustained and that the injuries were caused by
sharp edged and tipped penetrating weapon/weapons. After referring to the
Muddamal articles Kukari and knives, the doctor has observed that the injury
could be caused by mudammal articles kukari and knives. The High Court also
specifically held that the ocular version in this case is not at the loggerheads
with the medical evidence.
Certain discrepancies were pointed out by learned counsel for the appellant
at the time of arguments. The learned counsel for the State while answering the
said submission of the counsel for the appellant submitted that according to
PW-2, the duration of attack which he witnessed before he ran away took place
at the office and that there is evidence on record that blood was found at the
spot where PW-2 states that he had witnessed the armed attack upon the
deceased. The presence of blood at the spot where PW-2 states the attack had
taken place establishes the correctness of the version of this witness. In such
an event, the mere failure to explain the presence of the dead body at an
adjoining place does not disprove or contradict the prosecution case and in our
opinion is certainly not fatal to the prosecution case.
Learned counsel for the State also made certain submissions on law and, in
particular, the testimony of single eye-witness. Learned counsel for the State
relied upon the legal principles as laid down in Shivaji Sahabrao Bobade and
Anr. vs. State of Maharashtra (1973) 2 SCC 793 (three-Judge Bench) wherein it
has been held as follows:
"Even if the case against the accused hangs on the evidence of a single
eye-witness it may be enough to sustain the conviction given sterling testimony
of a competent, honest man, although as a rule of prudence courts call for
corroboration. It is a platitude to say that witnesses have to be weighed and
not counted since quality matters more than quantity in human affairs."
The legal position in respect of the testimony of a solitary eye-witness is
well settled in a catena of judgments inasmuch as this Court has always
reminded that in order to pass conviction upon it, such a testimony must be of
a nature which inspires the confidence of the Court. While looking into such
evidence this Court has always advocated the Rule of Caution and such
corroboration from other evidence and even in the absence of corroboration if
testimony of such single eye-witness inspires confidence then conviction can be
based solely upon it. In the case on hand, the testimony of the solitary
eye-witness stands corroborated by other circumstances and evidences and more
particularly PW-1 whose testimony has been relied upon by both the Courts.
Learned counsel for the State next answered the submission of the learned
counsel for the appellant in regard to the non-production of material
witnesses.
According to him, the witnesses which were necessary should unfold the narrative
of the incident were cited and examined as witnesses. Two of the witnesses to
the prosecution case present at the spot turned hostile. In such a scenario, it
cannot be said that the prosecution must suffer adverse inference for any
further non-production.
It is not the case of the appellant that there were certain witnesses who
were cited as witness in the charge-sheet but were later on dropped as
witnesses by the prosecution during the trial. It was also pointed out to us
and is pertinent to mention that one of the witnesses before the trial Court
had been granted police protection by the trial Court on the ground of threats
from the accused persons.
In our opinion, the appellant has failed to establish his case of innocence.
On the contrary, the prosecution has proved its case beyond any reasonable
doubt. We are of the opinion that the depositions that was given on record,
namely, Akbar Khan @ Raju can be said to be reliable and that there is no
reason to disbelieve him so far as the ocular aspect of the prosecution case is
concerned. The witness Akbar Khan cannot be branded as a related or interested
witness because he is merely a friend of the deceased. There is nothing
significant to infer that there was enmity between himself and accused persons.
His conduct appears to be consistent and natural in accompanying the deceased
to his office at loco shed on the date of the incident thus the testimony of
eye-witness Akbar Khan @ Raju cannot be brushed aside. He is believable and
does inspires confidence.
Learned counsel for the appellant pointed out certain discrepancies which,
in our opinion are trivial in nature but such discrepancies would not affect
the case of conviction imposed on the appellant. The deposition of Dr. Patil
who conducted the autopsy is worth to mention. There were in all 24 external
injuries and 3 internal injuries on the head, chest and abdomen region.
According to him, the injuries were caused by sharp edged deep penetrating
weapons the victim had sustained multiple injuries and owing to the same there
was haemorrhage which ultimately resulted into his death.
The cumulative effect of injuries found on the dead body were sufficient in
the ordinary course of nature to cause death and the injury found out on the
neck, a vital part of the body alone could have caused death. The evidence of
the witnesses and the evidence on record sufficiently and convincingly upholds
the narrative of the guilt of the appellant.
We, therefore, find ourselves in complete agreement with the reasoning and
findings of the learned trial Judge and of the High Court. Therefore, the
present appeal deserves to be dismissed and accordingly it is dismissed.
Before taking leave of the case, we would like to advert to the argument of
the learned counsel for the appellant on the question of sentence. He submitted
that the accused had spent over seven years in jail. He relied on the judgment
of this Court in Suresh Chaudhary vs. State of Bihar (supra). The above
judgment is to the effect that if no conviction of any accused is possible, the
benefit of doubt must be extended to the co-accused similarly situated though
he has not challenged the order of conviction by way of an appeal.
In the instant case, we have come to the conclusion that the conviction and
sentence imposed by the Courts below are correct and, therefore, the acquittal
is not possible. We also hold that the prosecution has proved the case beyond
any reasonable doubt. It is true that an order of sentence purely falls in the
realm of judicial discretion and the prosecuting State is only duty bound to
endeavour that the guilty had tried and convicted in accordance with law.
In the present case, the guilt of the appellant has been convincingly
established.
We are, therefore, unable to countenance the submission made by the learned
counsel for the appellant on the submission of sentence.
The appeal fails and is therefore dismissed. The appellant to serve the
remaining period of sentence.
Back
