2015 ALL MR (Cri) 958
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.V. HARDAS AND ANUJA PRABHUDESAI, JJ.

Mohammadali Badshaha Sayyad & Anr. Vs. The State of Maharashtra

Criminal Appeal No.580 of 2007,Criminal Appeal No.160 of 2007

18th June, 2014

Petitioner Counsel: Mr. VIKAS SHIVARKAR
Respondent Counsel: Mr. H.J. DEDHIA

(A) Penal Code (1860), Ss.302, 201, 34 - Murder - Testimony of sole eye witness - Reliability - Sole eye witness stated that accused persons killed deceased by strangulation - Incident disclosed by him after one and half months - No effort by him to inform same to police - Threat allegedly given to him by accused also not appearing to be of such magnitude as would have really frightened him - His testimony falsified by C.A. report which revealed that deceased died due to consumption of insecticide - No ligature mark at all was noticed on neck of deceased - No reliance can be placed on said witness - No other evidence to support his testimony - Accused are entitled to benefit of doubt - Conviction of both accused set aside. (Para 15)

(B) Evidence Act (1872), S.134 - Solitary eye witness - Corroboration, when required - It is only when testimony of sole witness is neither wholly reliable nor wholly unreliable that the court may look for corroboration - If witness is found wholly reliable, corroboration would not be needed - If witness is found wholly unreliable, no amount of corroboration would strengthen his evidence.

A conviction can be based on the testimony of a single witness. The law insists on quality and not on quantity. However, the testimony of the solitary eye witness should be of such quality as would inspire the implicit confidence of the court in placing reliance on the said testimony. If the witness is found to be wholly reliable, the court need not look for corroboration to his testimony. If the court finds that the evidence of the witness is wholly unreliable, the court need not look for corroboration as no amount of corroboration would strengthen the evidence of that witness. It is only in the event the court finds that the testimony of the witness is neither wholly reliable nor wholly unreliable that the court may look for corroboration. [Para 15]

JUDGMENT

P. V. HARDAS, J. :- Criminal Appeal No. 580 of 2007 has been filed by Original Accused Nos.3 - Tanaji @ Munna Sitaram Chorge, while Criminal Appeal No. 160 of 2007 has been filed by Original Accused No. 1 - Kalpana Mohan Dhumal. Originally, Criminal Appeal No. 160 of 2007 had been filed by Original Accused Nos.1 to 3 i.e. Kalpana, Mohammadali and Tanaji. Subsequently, Criminal Appeal No. 580 of 2007 was filed by Original Accused Nos.2 and 3 i.e. Mohammadali and Tanaji. We were informed that Original Accused No. 2 - Mohammadali had expired and, therefore, Criminal Appeal No. 580 of 2007 was dismissed as abated as against Original Accused No.2. Names of Original Accused Nos.2 and 3 i.e. Mohammadali and Tanaji in Criminal Appeal No. 160 of 2007 were ordered to be deleted, as they had filed Criminal Appeal No. 580 of 2007. Thus, these two appeals, therefore, question the conviction of Original Accused No.3 - Tanaji and Original Accused No.1 - Kalpana.

2. The appellants/Original Accused No.1 - Kalpana and Original Accused No. 3 - Tanaji, who stand convicted for offence punishable under Sections 302 read with Section 34 and 201 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay a fine of Rs.1000/-, in default of which to undergo further RI for six months and RI for three years to pay a fine of Rs.500/-, in default of which to undergo further RI for three months, by the Ad-hoc Additional Sessions Judge, Baramati, District - Pune, by judgment dated 11/12/2006, in Sessions Case No. 33 of 2004, question the correctness of their conviction and sentence.

3. Facts in brief as are necessary for the decision of these appeals may be stated thus:-

PW 10 - PSI Dattatraya Yadav, who, on 12/12/2003, was attached to the Indapur Police Station, recorded the report of Jagannath Dhumal at Exh. 64. On the basis of the said report, offence vide Crime No. 179 of 2003 was registered against the accused.

PW 11 - PI Shankarrao Jadhav, who, on 12/12/2003, was entrusted with the investigation of Crime No. 179 of 2003, arrested the accused, who had initially been arrested by the L.C.B. Pune. PW 11 - PI Jadhav seized a jeep which was used by the appellants under seizure memo at Exh.79. On 14/12/2003, accused Mohammadali (since deceased), during custodial interrogation, expressed his willingness to point out the place i.e. the scene of the incident. Accused Mohammadali also expressed his willingness to point out the place where the dead body had been disposed off. A memorandum to that effect was recorded at Exh. 154. The accused Mohammadali led the police and the panchas to Pune and then to Mandhardevi, Surur, Bhor, Saswad and Indapur. Apparently it seems that no incriminating articles were seized from the scene of the incident. On 15/12/2003, the accused were interrogated and on 18/12/2003 statements of witnesses were recorded. During custodial interrogation, on 21/12/2003, accused no.2 - Mohammadali expressed his willingness to point out the place where he had disposed off the rope. The said spot was visited, but no rope was found. On 25/12/2003, PW 11 - PI Jadhav recorded the statements of three witnesses and seized documents of title of the flat of accused no.1. On the same day, statement of Arun Gaikwad, a witness, was recorded under Section 164 of Cr. P.C. Statement of the photographer was also recorded. Further to the completion of investigation, a charge-sheet was filed against the accused.

Postmortem on the dead body of deceased Mohan was performed by PW 2 - Dr. Eknath Chandanshive. He noticed that there was intra crenal hemorrhage and both lungs were congested, oedematous and the cut surface showed bleeding in the lungs. He found that the heart was enlarged and there was smell of alcohol in the stomach. The liver was increased in size with modeler liver cirrhosis. Spleen was also enlarged. The viscera was preserved and he opined that cause of death was due to intra crenal hemorrhage associated with pulmonary oedema with liver cirrhosis and massive spleen magaly. The postmortem report is at Exh. 48. The report of the C.A. in respect of the viscera was obtained and after going through the C.A. report, a fresh cause of death was given as death due to consumption of oregano phosphorous compound i.e. diamethomle compound (Rogar). The letter issued by the Medical Officer to the police is at Exh. 49.

4. On committal of the case to Court of Sessions, trial court vide Exh. 34 framed charge against the accused for offence punishable under Sections 302 and 201 read with Section 34 of the IPC. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined 11 witnesses. The trial court, upon appreciation of the evidence, convicted and sentenced the appellants/accused as afore-stated. As pointed out by us above, during the pendency of these appeals, Original Accused No. 2 - Mohammadali expired and the appeal filed by him was dismissed as abated. The appeals are, therefore, restricted to the challenge to the conviction of Original Accused No.1 - Kalpana and Original Accused No. 3 - Tanaji.

5. In order to appreciate the submissions advanced before us by Mr. Vikas Shivarkar, learned counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses.

6. Prosecution has examined PW 1 - Arun Gaikwad, as an eye witness to the incident. PW 1 - Arun deposes that he was working as a driver and was staying at Chandannagar, Pune. He was residing along with his wife PW 3 - Vandana and his children. Arun further deposes that his friend Laxman Konde was owner of a Sumo Jeep bearing Registration No. MH-12-AX-3218 and was giving the said jeep on hire. Arun further deposes that he was a driver and used to take that jeep and used to pay his friend Laxman Rs.500/-. He had given the telephone number of his father-in-law to his customers in case they wanted to contact him for hiring a jeep. Arun deposes that on 21/10/2003 at about 8 a.m. he received a telephone from one Alibaba i.e. accused no.2. Accused No.2 informed him on phone that the Sumo Jeep belonging to him was not in working condition and, therefore, required a jeep on hire. Accordingly, accused no.2 asked PW 1 - Arun to visit Hotel Sargam. PW 1 - Arun accordingly went to Hotel Sargam, where he was informed by accused no.2 that he required a jeep on hire and that he would pay Rs.1500/- per day for 300 Kms. Accused No. 2 further informed PW 1 - Arun that he had necessary instructions from Dhumal Madam (accused no.1) regarding the fare of the jeep. PW 1 - Arun accordingly consented to the arrangement and accused no.2 told him to take the jeep to Sassoon Hospital, where accused no.1 - Kalpana Dhumal would come. Arun accordingly went tot he Sassoon Hospital and accused no.1 - Kalpana boarded the jeep and asked PW 1 - Arun to take the jeep towards Swargate Bus Stand. After reaching the Swargate Bus Stand, accused no.1 Kalpana asked Arun to take the jeep to Balajinagar. At Balajinagar, accused no.1 Kalpana alighted from the jeep and went to one flat. Accused No. 2, who was also travelling in the jeep, told Arun that accused no.2 had hired the jeep on behalf of a finance company for recovery of money and in case of any scuffle, Arun should not pay any attention to it. Arun, therefore, refused to accompany accused no.2, but accused no.2 assured him that Arun would not be involved in the incident. Arun, therefore, consented to drive the jeep.

7. After about 10 to 15 minutes, accused no.1 Kalpana came near the jeep and asked Arun to take the jeep to the Swargate Bus Stand. On way to the Swargate Bus Stand, accused no.1 Kalpana asked accused no.2 - Mohammadali to alight from the jeep and accordingly Mohammadali alighted from the jeep. Accused No.1 asked accused no.2 to stop the jeep on return journey and when PW 1 - Arun reached Swargate Bus Stand, accused no.1 alighted from the jeep and went away. After about 10 to 15 minutes, accused no.1 Kalpana came at the Swargate Bus Stand along with deceased Mohan. Deceased Mohan had consumed liquor and thereafter accused no.1 Kalpana and deceased Mohan boarded the jeep. Accused No.1 asked Arun to take the jeep and also informed Arun that they would be taking another passenger. Meanwhile, deceased Mohan had told Arun that his wife accused no.1 was a rich lady and Arun should nor worry about money. Arun accordingly proceeded towards the Kalubai Temple. On way, accused no.2 signaled Arun hand to stop the jeep. Accused no.2 then boarded the jeep and sat on the front left seat. Accused No.1 Kalpana and deceased Mohan sat in the middle seat, while accused no.3 sat in the rear seat of the jeep. There was conversation between accused no.2 and deceased Mohan Dhumal. Deceased Dhumal informed accused no.2 that he was a police constable and disclosed to accused no.1 that he was proceeding towards Kalubai Temple on pilgrimage. Accused No. 2 Mohammadali requested deceased Mohan to permit him to accompany him and he would share the cost of hire of the jeep. Deceased Mohan permitted accused no.2 to accompany him in the jeep.

8. Thereafter, all of them went to Kalubai Temple at about 2.30 p.m. Accused No.1 Kalpana and deceased Mohan went inside the temple. Accused No.2 invited Arun for a cup of tea and also purchased some eatables. After some time, accused no.1 Kalpana and deceased Mohan came near the jeep. Accused - Kalpana asked Arun to take the jeep to the temple of Dauji Patil near Mahabaleshwar Cross Road. Arun accordingly took the jeep to Dauji Patil Temple. Kalpana and deceased Mohan again went inside the temple. Meanwhile, accused nos. 2 and 3 sat on the parapet wall of the temple. Arun went to purchase a packet of tobacco and after purchasing tobacco was standing behind accused nos.2 and 3. Accused No. 2 disclosed to accused no.3 that he would assault and throw the body of the driver in the well and then he would take the jeep. Arun, therefore, made a telephone call to his father-in-law and informed his wife PW 3 -Vandana that if anything happens to him, Vandana should hold accused no. 2 as responsible. According to Arun, Vandana was acquainted with accused no.2, as accused no.2 Mohammadali was residing near his house. Accused No.2 questioned Arun as to whom he had telephoned and Arun disclosed to accused no.2 Mohammadali that he had telephoned his wife and had informed her that he was in the company of accused no.2.

9. Accused - Kalpana thereafter asked PW 1 - Arun to take the jeep towards Bhor and on reaching Bhor, Kalpana asked deceased Mohan whether he would like to eat anything. Deceased Mohan asked accused Kalpana to bring two bottles of liquor. They had reached Bhor at about 9.30 p.m. and accused no.3 then alighted from the jeep for purchasing liquor. Accused No. 3 brought two bottles of liquor and one plastic glass and water. PW 1 - Arun had also alighted from the jeep and telephoned his house. After about half an hour, Arun was asked to take the jeep towards Pune. When they reached the National Highway, Arun was asked to take the jeep towards Saswad via Narayanpur. In the Ghat section, n ear Narayanpur, the tyre was punctured and for replacing the tyre, all the occupants alighted from the jeep. At that place deceased Mohan was consuming liquor. After the tyre was replaced, they went to Saswad and thereafter proceeded towards Hadapsar. On reaching Hadapsar, Kalpana asked Arun to take the jeep towards the Tuljapur as she wanted to take darshan of Tuljabhavani. Arun informed Kalpana that since it was late, he was not in a position to drive the jeep upto Tuljapur, but deceased Mohan informed Arun that he could drive the jeep. Accused No. 2 also expressed his willingness to drive the jeep. Arun accordingly filled diesel at vilalge Loni Kalbhor and proceeded towards Tuljapur. He was asked to stop the jeep at one Dhaba and accused nos.2 and 3 and deceased Mohan went inside the Dhaba and started consuming liquor. After reaching Indapur, Arun took the jeep towards Akluj Road and had driven the jeep upto 10 Kms. when deceased Mohan asked Arun to slow the jeep as his house was nearby. Meanwhile, accused no.2 turned around and punched Mohan on his face. Accused No. 2 held the hands of Mohan, while accused no.3 tied his handkerchief around the neck of Mohan. Accued No.2 asked Arun to proceed ahead. Accused Nos.2 and 3 then removed Mohan from the jeep and took him in the adjacent field. Arun attempted to flee from the scene of the incident, but his attempt was foiled by accused no.2. Thereafter Kalpana and accused nos.2 and 3 boarded the jeep and asked Arun to take the jeep towards Pune. Accused No. 2 asked Arun to take the jeep towards Shirdi. On way, Arun stopped the jeep at the STD Booth in order to call his residence. Arun further informed accused no.2 that since he had an arrangement for taking his customer in the morning, Arun declined to go to Shirdi. Arun then took his jeep towards Chandannagar. Accused Nos.2 and 3 removed the seat covers of the jeep and threw the seat covers and the articles in a river. The seat covers, according to Arun, were stained with blood. Accused then asked Arun to take the jeep towards Vishrantwadi and while alighting from the jeep, cautioned Arun that he should not disclose the incident to anyone. Accused also asked Arun to wash his jeep at the nearby service centre. Arun accordingly washed the jeep. Accused paid him Rs.3000/- as hire charges. Accused Nos.2 and 3 alighted from the jeep and accused no.1 Kalpana asked Arun to take the jeep to Vadgaonsheri, where her brother was residing. Accordingly, Arun took Kalpana to Vadgaonsheri and returned home. About three days thereafter accused nos.2 and 3 again came to his house and informed him that accused no.1 had settled the matter and Arun should not disclose the incident to anyone. On 9/12/2003, Arun was called at the Crime Branch, where his statement was recorded and thereafter on 13/12/2003 he was called at the Indapur Police Station, where his statement was recorded.

It would thus seen that the incident was on 21st/22nd October, 2003, while the statement of PW 1 - Arun was recorded for the first time on 9/12/2003 i.e. more than one and half months of the incident. In cross-examination, he has admitted as true that till 9/12/2003 he was residing in his house. He has also admitted as correct that till 9/12/2003, he was driving the jeep on hire. He has admitted that he had not given complaint to the police about the threat given by accused nos.2 and 3. He has also admitted that he had not disclosed the incident to the owner of the jeep. He has also admitted that he had not disclosed the incident to any person, known or unknown.

10. The cross-examination of PW 2 - Dr. Chandanshive completely falsifies the evidence of PW 1 - Arun that deceased Mohan was strangulated. PW 2 - Dr. Chandanshive has admitted in cross-examination that he did not notice any ligature mark on the neck of the deceased Mohan. Undisputedly, the deceased had died due to consumption of insecticide and not due to strangulation.

11. Prosecution has examined PW 3 - Vandana, wife of PW 1 - Arun. Vandana deposes that on 21/10/2003 at about 8 a.m. her husband PW 1 - Arun had gone along with the jeep. On that day at about 6 p.m. she had received a telephone call from her husband, who informed her that there was danger to his life and if anything happens to him, accused no.2 Alibaba should be held responsible. On the next day at about 10 a.m. she had received another telephone call from PW 1 - Arun who had told her that he had come to Pune and had called Vandana there. PW 1 - Arun returned home at about 1.30 p.m. and was frightened and had disclosed the incident to Vandana. In cross-examination, Vandana has admitted that she had disclosed the incident as narrated by Arun to her father. She has admitted that no complaint was lodged with the police. She has admitted as correct that she had not informed the incident to the owner of the jeep.

12. Prosecution has examined PW 6 - Vijay Chavan, the owner of the STD Booth. PW 6 - Chavan deposes that he was owner of an STD Booth near the Dauji Patil Temple. The police had brought one person along with them and had asked him if that person had made a call from his Booth. The police had demanded the STD Bills from him and accordingly he had handed over the STD Bills to the police. The STD Bills are at Exh. 57. In cross-examination, he has admitted that he would not be in a position to identify the person who had made the telephone call. He has admitted as correct that about 100 people visit his shop everyday.

13. Prosecution has examined PW 7 - Dashrath Bargude, vendor, who used to sell fruits in the premises of Mandhardevi Temple. According to him, accused nos.1 and 2 had come to Mandhardevi Temple and they had sat near the Mandhardevi Temple for about half an hour.

This witness does not claim that he was knowing accused nos.1 and 2. He has not questioned if he was acquainted with accused nos.1 and 2 and thus had identified them. The examination-in-chief is extremely sketchy and does not establish the date on which he had seen the accused near the Mandhardevi Temple. The other details have also not been obtained about the presence of other accused as well as the accused coming in a jeep. The evidence of this witness, therefore, according to us, does not assist the prosecution case at all.

14. Prosecution has examined PW 8 - Suresh and PW 9 - Radhabai, brother and sister of deceased Mohan, who have identified the dead body of deceased Mohan. PW 8 - Suresh deposes that on 22/10/2003 his cousin Rambhau had informed him that he had seen one dead body near the Shetphal approach road and the dead body resembled deceased Mohan. PW 8 - Suresh accordingly rushed to the scene of the incident and noticed that it was the dead body of his brother deceased Mohan and accordingly had lodged his report at Exh. 60. Prosecution has examined PW 9 - Radhabai, sister of deceased Mohan. According to her, deceased Mohan was staying with accused no.1 Kalpana. Mohan had also purchased a flat at Katraj in the name of accused no.1 Kalpana. There used to be frequent quarrels between Kalpana and deceased Mohan with regard to transfer of the Dhankawadi flat of Mohan in the name of Kalpana.

15. The conviction of the accused is principally based upon the solitary testimony of PW 1 - Arun. It is true that a conviction can be based on the testimony of a single witness. The law insist on quality and not on quantity. However, the testimony of the solitary eye witness should be of such quality as would inspire the implicit confidence of the court in placing reliance on the said testimony. If the witness is found to be wholly reliable, the court need not look for corroboration to his testimony. If the court finds that the evidence of the witness is wholly unreliable, the court need not look for corroboration as no amount of corroboration would strengthen the evidence of that witness. It is only in the event the court finds that the testimony of the witness is neither wholly reliable nor wholly unreliable that the court may look for corroboration. In the present case, at the out-set, we find that the eye witness had not disclosed the incident for nearly one and half months. PW 1 - Arun was staying in his house and was doing his business as usual. The threat alleged to have been given to him by the accused also does not appear to be of such magnitude as would have really frightened PW 1 - Arun. The statement of the solitary witness was recorded after delay of one and half months. No effort was taken by Arun at informing the police about the incident. The evidence of PW 1 - Arun that the deceased was strangulated is falsified by the C.A. report which indicates that deceased had died due to consumption of insecticide. No ligature mark at all was noticed on the neck of deceased Mohan. We, therefore, find that no reliance whatsoever can be place on the testimony of PW 1 - Arun. The fact that telephone calls were made from the STD Booth to the residence of the father of PW 1 - Arun would not necessarily indicate that the calls were made by PW 1 - Arun. Even the identification of PW 1 - Arun as the person who had made the telephone call by PW 6 - Vijay is not reliable. Belated recording of the statement of Arun is a factor which impels us not to place any reliance on the testimony of PW 1 - Arun. Additionally, we find that there is no other supportive evidence which would bolster the evidence of PW 1 - Arun. Thus, in our opinion, therefore, the appellants/accused are entitled to be given the benefit of doubt.

16. Accordingly, Criminal Appeal No. 580 of 2007 is allowed and the conviction and sentence of the appellant no.2/Original Accused No. 3 - Tanaji @ Munna Sitaram Chorge is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant no.2/Original Accused No. 3 be refunded to him. Since the appellant no.2/Original Accused No. 3 is in jail, he be released forthwith, if not required in any other case.

Criminal Appeal No.160 of 2007 is allowed and the conviction and sentence of the appellant no.1/Original Accused No.1 - Kalpana Mohan Dhumal is quashed and set aside and she is acquitted of the offence with which she was convicted and sentenced. Fine, if paid by the appellant no.1/Original Accused No.1, be refunded to her. Since the appellant no.1/Original Accused No.1 is on bail, her bail bonds stand cancelled.

Appeals allowed.