1998 ALL MR (Cri) 721
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ASHOK DESAI AND VISHNU SAHAI, JJ.

Raju Somkaran Salian & Ors. Vs. State Of Maharashtra

Criminal Appeal No.424 of 1995

23rd April, 1998

Petitioner Counsel: Mr. K.H. KESWANI with Mr. S.K. KESWANI
Respondent Counsel: Mrs. J.S. PAWAR

(A) Evidence Act (1872), Ss.3, 134 - Solitary eye-witness - Implicitly reliable and a natural witness - His testimony corroborated by circumstantial evidence - Conviction can be based on his testimony - Evidence is to be weighed and not counted. (Paras 11,12,13)

(B) Penal Code (1860), S.302 r.w.34 - Murder - Common intention - Common intention can develop on spur of a moment - There need not be prior enmity with decreased. (Para 15A)

(C) Penal Code (1860), Ss.65, 201 - Sentence in default of fine - Cannot exceed 1/4 of maximum sentence for the offence - Offence under S.201 r.w.34 IPC - Sentence of two years R.I. in default reduced to 1 years R.I. (Para 16)

JUDGMENT

VISHNU SAHAI, J. :- Through this appeal, the appellants challenge the Judgment and order dated 27th April, 1995 passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case no.246 of 1994, convicting and sentencing them in the manner stated hereinafter :-

(i) Under section 302 read with 34 of IPC to undergo RI for life imprisonment; and

(ii) Under section 201 read with 34 of IPC to undergo one year R.I. and to pay a fine of Rs.1000/- in default to suffer further R.I. for a period of two years.

The substantive sentences of the appellants were ordered to run concurrently.

We may mention that along with the appellants, two others namely Mohan Namu Poojari and Anand Jayram Kotian were also tried and prosecuted but, they have been acquitted vide the impugned Judgment and the State of Maharashtra has not challenged the acquittal by preferring an appeal under section 378(1) of Cr.P.C.

2. In short, the prosecution case runs as under :-

The informant Mukundrao Sangani PW 2 had his tailoring shop at 17-A, Kawasji Patel Street, Bhaubali Bldg., Fort, Bombay - 400 001. Exactly opposite his tailoring shop was Savala Chamers, wherein on the landing between the 4th and 5th floor was the tailoring shop of appellant Raju. At the said shop, Mahesh Ganpati Hegde PW 1 alongwith appellant Nagesh used to work. Mahesh Ganpati Hegde used to eat and stay with appellant Raju on the 5th floor.

According to the prosecution, the deceased Vijay Gurav had given some loan to the appellant Raju and the latter had not repaid it. On account of this, there was an enmical strain between Raju and Vijay.

On 15th November, 1983, at about 2.20 p.m. Vijay Gurav came to Raju's shop. At that time, Mahesh Hegde and Nagesh were also present. Vijay asked Raju as to when he would return the money. Raju replied that he would do so by next Saturday. Appellant Nagesh who was present there enquired from Raju as to why Vijay had given him money. Thereupon, Vijay told Nagesh to mind his own business. At that time, appellant Shridhar also joined Raju and Nagesh. Raju, Nagesh and Shridhar started kicking and inflicting fist blows on Vijay as a result whereof, he dashed against a part of staircase and sustained an injury on his head. Thereafter, the appellants inflicted more blows on Vijay who fell down as a result of their impact in the staircase leading towards the 5th floor. Thereafter, Raju picked up an iron wire which was in his shop and tied the wrists and neck of Vijay with the same. Pursuant to that, the three appellants started dragging Vijay. At that point of time, the acquitted accused Mohan and Anand reached and joined the appellants. The appellants, accused Anand and Mohan dragging and pushing Vijay took him on the 5th floor.

Evidence of Mahesh Ganpati Hegde PW 1 is that he was not able to see the manner in which Vijay Gurav was assaulted on the 5th floor.

After murdering Vijay Gurav, the appellants put his body in a trunk and latch of the trunk was fastened by them with pieces of cloth. The said trunk was put inside a bathroom which was located on the 5th floor. The bathroom was locked thereafter.

In the meantime, a commotion was created in the building that Vijay Gurav had been killed by Raju and others but, as is the normal experience, no one was prepared to inform the police.

2A. At about 5.45 p.m. Mukundrai Sangani PW 2 returned to his tailoring shop where one Vithal Kharas told him that the appellant Raju had killed a person on the 4th floor at Savala building and had hidden the corpse. Mukandrai Sangani being a social worker of the area, telephoned the Paltan Road police station ( Now M.R.A. Marg police station ) On the phone, he talked to S.I. Vishnu More PW 10 and P.I. Swamy and informed them about what he had heard. The said persons reached him without any loss of time in a jeep. Thereafter, with them Mukandrai Sangani proceeded to 4th and 5th floor of Savala building. His evidence shows that he knew the appellant Raju from before. He took Raju into confidence and told him that if he would disclose about the incident, he would not be tortured. He asked him about the same. Raju told him that he, Nagesh Shridhar, Anand and Mohan had murdered Vijay; had concealed the dead body in a trunk; and had locked the trunk in the bathroom. Raju took out a key from the pocket of his pant, opened the lock of the bathroom and thereafter, when the trunk was opened, the corpse of Vijay Gurav, the deceased, was found in the same. The said corpse was identified by Anant Manjrekar PW 8, the brother-in-law of Vijay Gurav, to be that of Vijay Gurav.

On further interrogation, Raju took out the wire with which the wrists and neck of Vijay Gurav had been tied and thereafter, the latter had been done to death.

3. The F.I.R. of the incident was lodged on the place of the incident by Mukundrai Sangani PW 2. It was recorded by S.I. Vishnu More. S.I. More after recording it rang up police station M.R.A. Marg, got from the said police station C.R. No.658 of 1993 and thereafter again informed M.R.A. Marg police station to make an entry about the arrest of the appellants and co-accused Mohan.

The evidence is that co-accused Anand had slipped away prior to the arrival of police.

4. The post mortem examination of the corpse of Vijay Gurav was conducted on 16th November 1993 by Dr. Ashok Shinde PW 7 who found the tip of the tongue clenched between the teeth; blood stained froth oozing out from nostrils and mouth; and pupils of left eye partially open and dilated. On the corpse, the doctor found the following injuries :-

1) Grazed abrasion on the forehead front centre near hairline, 3.0 cm x 2.5. cm x red colour.

2) Contusion of the right side of forehead front one c.m. above right eye brow 2.0 cm x 1.6 cm red colour.

3) Contusion on right side face upper part of cheek 1.6. cm x 1.4 cm reddish blue colour.

4) Contusion on the left side lower lip laterally externally and internally 3.0 cm x 1.4. cm reddish blue colour.

5) Contusion on the right external ear pinna externally (front) 2.0 cm x 1.4 cm.

6) Multiple bruising on the neck region extending from upper border thyroid cartilage up to lower border of thyroid cartilage and also right and left side neck front at level of thyroid cartilage covering area 11.0 cm x 4 cm with varying size of 1.0 cm x 0.5 cm to 1.4 cm x 0.5 cm.

7) Ligature mark encircling the neck two in number but second ligature mark interming with first ligature mark on both sides of neck back from lateral aspect colour 4 & 6 as per post mortem note.

8) Ligature mark parallel to each other on the right wrist encircling, oblique lateral to medial downwards, upper length 16.0 cm breadth 0.5 cm lower length 15.2 cm breadth 0.5 cm and 0.8 cm apart from red colour.

9) Ligature mark parallel to each other on the left wrist, encircling, oblique lateral to medial downwards, upper length 16.1 cm breadth 0.5 cm lower length 15.3 cm breadth 0.5 cm and 0.7 cm apart each other, red colour."

On internal examination, the doctor found the ligature marks on neck; thyroid gland bruised; and fracture of thyroid cartilage.

In the opinion of the doctor, the death was a result of asphyxia due to strangulation associated with multiple injuries.

Dr. Shinde further opined that the ligature marks could have been caused due to wire article no.1 being bound twice on the neck and then forcibly the end being pulled effecting strangulation.

Before disposing of the medical evidence, it would be pertinent to mention that Dr. Shinde found Semi-digested food in the stomach of the deceased, which in his opinion indicated that the deceased must have taken food about two hours earlier.

5. It is significant to point out that the appellants Raju and Shridhar were also sent for medical examination and were examined by Dr.Shinde PW 7. On the person of Raju, the doctor found the following injuries :-

"(1) Healed abrasion on right elbow 1.0 cm x 0.8 cm red colour scab.

(2) Healed abrasion on the left elbow 1.1 cm x 1 cm red colour scab.

(3) Healed abrasion on the left shoulder back 1.4 cm x 1.0 cm red coloured scab.

(4) Linear contusion on the right palm hypothenar aspect near wrist joint, oblique, blue coloured 2 cm x 0.5 cm tenderness present."

Age of these injuries was within 48 hours, and the history given by him was that during the quarrel on 15th November, 1993, with Vijay Gurav, he had sustained these injuries.

On the person of Shridhar, the Doctor found one abrasion on right shoulder 1.5 cm x 2.0 cm tenderness present. In the history given by Shridhar, he stated that " While shifting late Gurav, he got injury on right side back due to rubbing against the door.

6. The investigation was conducted in the usual manner by S.I. Vishnu More PW 10 and after completing the same, he submitted the charge sheet against the appellants, and the acquitted accused Mohan and Anand.

7. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants were charged on the counts mentioned in para 1. They pleaded not guilty to the said charges and claimed to be tried. During trial, the prosecution examined in all, 10 witnesses. Only one of them Mahesh Hegde PW 1 was examined as an eye-witness. In defence, no witness was examined.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated hereinabove.

8. We have heard Mr. K.H. Keswani with Mr. S.K. Keswani for the appellants and Mrs. J.S. Pawar, Additional Public Prosecutor for the State of Maharashtra-Respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; statements of the appellants recorded under section 313 Cr.P.C.; and the impugned Judgment. After adequately reflecting over the matter, we are constrained to observe that we do not find any merit in this appeal and the same in our view, deserves to be dismissed.

9. The crucial question in this appeal is whether the evidence of the solitary eye-witness Mahesh Hegde PW1 inspires confidence or not ? Our considered answer to it is in the affirmative.

Since in para 2, we have set out the prosecution story on the basis of the recitals contained in his statement, we are not graphically reiterating the averments contained in his statement. In short, he stated that he along with the appellant Nagesh used to work at the tailoring shop of the appellant Raju situated on the landing between the 4th and 5th floors of Savala Chambers in Fort area of Bombay. He knew the deceased Vijay Gurav because, he had come to the shop of appellant Raju twice or thrice earlier. On 15th November, 1983 at about 2.20 p.m. while he and Nagesh, along with Raju, were at the tailoring shop of Raju, Vijay Gurav came and asked Raju as to when he would repay the loan he had taken. Raju replied that he would do so by Saturday. Thereafter, Nagesh asked about the details of the loan. Thereupon, Vijay Gurav remonstrated to the effect that Nagesh should mind his own business. By that time, appellant Shridhar had also come there. The three of them started kicking and inflicting fist blows on Vijay Gurav. They pushed Vijay Gurav who fell down and sustained an injury by falling on the staircase. Thereafter, they again assaulted Vijay Gurav. Then Raju brought a wire; tied the wrists and neck of Vijay Gurav with the said wire; and thereafter, all the three appellants along with Mohan and Anand forcibly took Vijay Gurav through the staircase on the 5th floor. The statement of Mahesh Hegde PW1 is that he could not see the manner in which Vijay Gurav was assaulted on the 5th floor. After murdering Vijay Gurav, the appellants concealed his corpse in a trunk and locked the said trunk in the bathroom. The key of the Bathroom was taken out by the appellant Raju when the police arrived the same evening, and thereafter the corpse was taken out from the trunk.

10. We have gone through the said statement of Mahesh Hegde and we find the same to be implicitly reliable and truthful. It is a trite that whereas witnesses may lie, circumstances do not and it is the circumstantial evidence which is affording enormous assurance to the veracity of the statement of Mahesh Hegde.

The first circumstance which affords assurance to Mahesh Hegde's statement are the antemortem injuries found in the corpse by Dr. Shinde PW 7. A perusal of the injuries sustained by Vijay Gurav, which we have set out extensively in paragraph 4, shows that they were attributable to blows with kicks and fists as stated by Mahesh Hegde. Again, the statement of Mahesh Hegde that Raju tied wire around the wrists and neck of Vijay Gurav is corroborated by the presence of the ligature mark on the neck of Vijay Gurav and two ligature marks, on each on the right wrist and left wrist of Vijay Gurav.

Apart from the circumstance that the medical evidence corroborates the statement of Mahesh Hegde, we also find that he was a very natural witness of the incident. His evidence shows that he used to work along with the appellant Anand in the tailoring shop of appellant Raju and used to also have meals with the appellant Raju and sleep at his place. In such a background, the claim of Mahesh Hegde, of being present at the place of the incident and of having seen the incident appears to be perfectly natural and understandable.

11. Again, it should be borne in mind that Mahesh Hegde is a wholly independent witness. He had no rancour or grudge against any of the three appellants which would explain his false implication of the appellants. On the converse, if his evidence is examined on the anvil of common sense, it would appear that he was having a soft corner for the appellants Raju and Nagesh; for the former not only because he was his employee but also for he used to live and eat with him; for the latter as he was his associate in the tailoring shop of the former.

12. It is true that it is not a inflexible rule of appreciation of evidence that the evidence of an independent witness has to be accepted as gospel truth but the time-honoured norm of appreciating evidence is that unless there are some intrinsic improbabilities or some glaring infirmities in the evidence of an independent witness which militate against the core of the prosecution case, the same should be accepted by Courts. Such an approach is founded on the principle that Courts assess evidence on common sense and probabilities and once they find the evidence of a witness to be in tune with probabilities and he is independent, they are loathe to disbelieve him unless there is some patent infirmity in his evidence, which to repeat militates against the core of the prosecution case. This is not the case here.

13. Mr. Keswani learned counsel for the appellant failed to show any such improbability or infirmity in the evidence of Mahesh Hegde which would impair the meat of his credibility.

He made some criticisms with respect to his evidence which in our Judgment, are innocuous.

We now propose considering them.

He firstly contended that the ocular account furnished by Mahesh Hegde fails to explain all the injuries sustained by Vijay Gurav. While canvassing this submission, Mr. Keswani seems to have lost sight of the fact that Mahesh Hegde stated that after Vijay Gurav had been tied with wire the appellants forcibly took him on the 5th floor and he did not know as to how he was assaulted on the 5th floor. In our view, some injuries must have been caused to Vijay Gurav on the 5th floor because, it was there that he was done to death and thereafter, his body was put in a trunk. Hence, we find no merit in the first criticism of Mr. Keswani.

Mr. Keswani also contended that there are some injuries on the person of appellants Raju and Shridhar which have not been explained by Mahesh Hegde. Again, we regret that we do not find any merit in this contention. In this context, it would be pertinent to refer to the case history given by Raju and Shridhar to Dr.Shinde at the time when the latter medically examined them. Raju told Dr. Shinde that he had sustained injuries as a result of a quarrel with Vijay Gurav on 15th November 1983. Shridhar stated that he had sustained injuries while he was shifting the body of Vijay Gurav. In this view of the matter, we find that the evidence of Mahesh Hegde cannot be faulted for his failure to explain the injuries of Raju and Shridhar.

14. In our view the evidence of Mahesh Hegde is implicitly reliable and forms a very safe basis for sustaining the conviction of the appellants.

It should be borne in mind that there is no impediment in recording/sustaining a conviction on the testimony of a solitary witness, for the time-honoured rule is that evidence has to be weighed and not counted, and that it is this rule which is incorporated in section 134 of the Indian Evidence Act which reads thus :-

Section 134 :

" Number of witnesses: No particular number of witnesses shall in any case be required for the proof of any fact."

We wish to emphasise that plurality of evidence is not a requirement in law. It may be necessary in the given facts of a case wherein the Court comes to the conclusion that evidence of a eye-witness is not wholly reliable. This is not the case here, for as observed above, the solitary statement of Mahesh Hegde is implicitly reliable and by itself is sufficient to sustain the conviction of the appellants.

15. Finally, Mr. Keswani urged that the appellants Nagesh and Shridhar have been wrongly convicted by the learned Judge for the offence under section 302 read with 34 IPC, for there is nothing to indicate that they shared along with the appellant Raju the common intention to commit the murder of Vijay Gurav. We regret that we do not find any merit in the said contention either.

Section 34 IPC reads thus :-

" Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. "

A perusal of the said section would show that for its application, two things have to be established :-

a) that a criminal act was done; and

b) the said criminal act was committed by more than one person in the furtherance of their common intention.

If (a) and (b) co-exist then the result would be the criminal act committed would be deemed to have been committed by the persons committing it in furtherance of their common intention.

In the instant case, we find that the evidence of Mahesh Hegde squarely establishes that the three appellants committed the murder of Vijay Gurav in furtherance of their common intention. The evidence is that pursuant to a quarrel which had taken place between Vijay Gurav, Raju and Nagesh, all the three appellants assaulted Vijay Gurav by giving him kick and fist blows, Vijay Gurav fell down on the staircase as a result of the said blows; even then the three appellants continued assaulting him; thereafter appellant Raju tied both the wrists and neck of Vijay Gurav with a wire and then all the three appellants along with Mohan and Anand forcibly pushed Vijay Gurav and took him through the staircase on the 5th floor.

When about three and a half hours later the police came it found the corpse of Vijay Gurav inside a trunk in a lavatory on the 5th floor. From the said facts, in our view, it can be safely inferred that the murder of Vijay Gurav was committed by the appellants in furtherance of their common intention.

15A. It is true as Mr. Keswani urged, that there was no prior enmity between the appellants and Vijay Gurav but it is well-settled that common intention may develop on the spur of the moment. In our view, the instant case is a tailor made illustration of common intention developing on the spot to commit the murder of Vijay Gurav.

16. Before we part with this Judgment, we would like to point out to an error committed by the learned trial Judge. Section 65 of IPC provides that the sentence in default of fine, cannot exceed ┬╝th of the maximum sentence of imprisonment provided by the section in question. A perusal of section 201 IPC shows that in relation to an offence of murder, the maximum sentence of imprisonment which can be imposed is seven years RI. In the instant case, contrary to the provisions of section 65 IPC, the learned trial Judge has awarded to each of the appellants a sentence of two years RI in default of payment of fine, for the offence under section 201 r/w 34 IPC. In view of section 65 IPC the maximum sentence in default of payment of fine, which could have been imposed on them was only one year and 9 months. In our view, in the instant case, a sentence of one years RI in default of payment of fine, for the offence under section 201 r/w 34 IPC would meet the ends of justice.

17. In the result, this appeal is partly allowed. Although we maintain the convictions and substantive sentences of the appellants on both the counts, but we reduce the sentence in default of payment of fine, for the offence under section 201 r/w 34 IPC from two year's RI to one years RI. The appellants are in jail and shall be detained therein till they serve out their sentences.

Before parting with the Judgment, we would like to record our appreciation for the assistance rendered to us by the learned counsel for the parties in the disposal of this appeal. Although Mr. Keswani had a formidable Judgment to assail, he left no stone unturned.

Appeal Partly allowed.