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1987 Supreme(Bom) 198
IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar A.D. Tated, JJ.
Popat Balu Vanjari.... Appellant.
Versus
State of Maharashtra .... Respondents.
Criminal Appeal No. 92 of 1984, decided on 9-7-87.
Advocates appeared :
P.L. Shetty, for appellant.
R.T. Shinde, P.P., for respondent.
Headnote:Section 3-Testimony of witness-If something inprobable in testimony, no need to seek corroboration.
The acceptability of the testimony of a witness is not determind by the mere fact that the testimony is given on oath. Though there is sanctity to oath, this sanctity is not always recogined by the witnesses. If merely because a witness has stated something on oath the Court accepts it, then the Court would be failling in its duty of testing the veracity of the testimonies given in the Court.
There is no particular cross-examination by which the credibility of a witness can be judged. It is to be weighed and examind in the light or normal human conduct. The probabilities of the incident deposed to by the witness and, in certain cases, by the subsequent conduct-displayed by that particular witness. -As a rule, one would normally seek corroboration to the testimony of a witness, especially when there is something improbable in the testimony of that witness. In law, undoubtedly, the testimony of a single witness car be made the sole basis of conviction. However, as rule of prudence, Courts have always insisted on corroboration, especially in criminal cases.
Sections 3 and 157-Eye-witness-Statements of such witnesses recorded after usually long time-Explanation for delay should, come from prosecution as a rule and not from defence side-Further when such witness claimed to have disclosed information about commission of offence to some villagers and refused to disclose the names of such villagers-Held, such witness is not an eye-witness. (Case relied on AIR 1979 SC 135 : AIR 1971 SC 1467).
It the statements of the witnesses are recorded after an unusually long time when they could have been recorded or when there was sufficient opportunity of those statements to be recorded earlier, then the explanation as to why those statements could not be recorded earlier has to come from the prosecution. In all criminal mailers, the early recording of a statement, especially when it relates to the commission of a cognizable offence, is regarded as a rule. If this rule is not followed, the exception has to be explained by the prosecution. No burden is cast upon the defence to ask the prosecution witnesses as to why they have not disclosed their information to the concerned persons at the earliest opportunity. When witnesses insist that they had disclosed the information to certain persons it is the bounden duty of the prosecution to examine those persons to whom such information is alleged to have been disclosed because in that case corroboration as contemplated by Section 157 of the Indian Evidence Act would be available.
Section 302-Offence of murder-Prosecution relied on eye-witnesses-Testimonies of these witnesses not found acceptable-Other evidence of prosecution relating to motive and to discovery of some articles not inconsistent with the innocence of accused- These evidences do not connect the accused-Held, conviction against the accused liable to be set aside.
If the testimonies of witnesses are not found acceptable, then the conviction recorded against the accused will, naturally, have to be set aside. This submission of is fully justified because the other evidence which has been led on behalf of the prosecution, namely evidence relating to the motive and to the discovery of Articles 18 and 19, is not inconsistent with the innocence of the accused. In any case, the said evidence does not connect the accused with the murder for which he has been charged. One must, therefore, proceed to examine the testimonies of two eye-witnesses and one witness who claims to prove that the accused was in possession of the weapons of offence.
2. Facts leading to the prosecution must be briefly stated in order to understand the judgment of the Court below and the arguments advanced before this Court challenging the said order of conviction and sentence. The deceased was one Pandit Sukdev Pachonde of Village Tarkhede in Pachora Taluka of Jalgaon District. On 9th of May, 1983, the said Pandit Sukdev and the accused were seen together by at least three persons, two of whom have been examined as prosecution witnesses, in a field belonging to one Narayan Savaji. That field was situated in Village Galan Khurd, also in Pachora Taluka. Some enmity between the deceased and the accused was sought to be established by the prosecution. However, it is not necessary to refer to the same because ultimately the question as to whether the accused is guilty of the offence for which he has been convicted will have to be answered on the basis of the testimonies of two persons who claimed themselves to be eye-witnesses. These two persons namely Bhangraj Gangaram Pawar, examined as P.W. 4 and Chunilal Chandrasing Rathod, examined as P.W. 5, say that at about 4 p.m. on 9th of May, 1983, when they along with the father of P.W. 4 Bhangraj were returning to their village after attending the Bazar day of Village Nagardevala, they noticed the accused and the deceased in the field of Narayan Savaji. They were at that time standing under a Behada tree. Though both these witnesses say that they thought that the accused would steal mangoes, still they did not take any immediate steps. On the other hand, they went to their village and returned to the field of Narayan Savaji on bicycle. At that time on Vishwanath had also accompanied them, but the said Vishwanath has not been examined by the prosecution.
3. It is the prosecution case, as unfolded through the testimonies of these two witnesses, that at that time the accused had felled down the deceased by giving him blows with weapons which have been described as blades of harrow. The accused was also abusing the deceased for having not returned an amount of Rs. 80 which the deceased owed on account of consumption of liquor. It has been alleged by the prosecution that after so assaulting the deceased the accused lifted him and took him to the field of Jagan Patil where he was thrown away. These witnesses who returned to their home did not inform anyone about the incident. P.W. 4 Bhangraj, however, says that he informed his father but his father has not been examined.
4. On 10th of May, 1983, the dead body of the deceased was discovered by some persons. Information about the same was relayed to the Police Patil of the village who in turn informed the police station at Pachora. Investigation was taken up. Statements of the two persons who formed the very foundation of the prosecution in this case were recorded as late as on 19th of May, 1983. Statement of another witness, namely Shivaji Shankar (P.W. 8), was recorded on 20th of May, 1983. It is thus clear that for nearly ten days after the incident took place the two key prosecution witnesses, namely P.W. 4 Bhangraj and P.W. 5 Chunilal, had not disclosed to anyone the fact of the assault made by the accused on the deceased on the evening of 9th May, 1983.
5. In due course the body was subjected to postmortem. Consistent with the usual practice of Indian Police, discovery under section 27 of the Evidence Act was made by the accused of the two blades of a harrow alleged to have been hidden in a dung-heap. One shirt worn by the accused was also attached. The said shirt along with the blades of the harrow was sent to the Chemical Anal
