2015 Supreme(Bom) 59

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
P.V. HARDAS & SHALINI PHANSALKAR-JOSHI, JJ.
Akhtar Hussein Mohiddin Ali Shaikh & Ors. – Appellants
Versus
The State of Maharashtra, Thru Powai Police Station & Ors. – Respondents
Criminal Appeal Nos. 685, 699, 700, 706, 884 of 2009 & 558 of 2011
Decided On : 22-01-2015

Headnote:Evidence Act, 1872 - Section 11 Indian Penal Code, 1860, Section 300 Plea of alibi in murder case. In absence of any evidence to show that accused was at a particular place at time of incident, which is for away from spot of incident, plea of alibi not tenable. In the FIR no overt act is being attributed to some of the accused like accused No. 8 ’R’ and accused No. 5 ’V’ as regards accused No. 1 ’S’, it is submitted that he has merely exhorted and not assaulted anyone. Similarly, as regards accused No. 9 ’K’, it is submitted that he was just present, but no specific role of inflicting blow is attributed to him. Reliance is also placed by the counsel for accused No. 9 ’K’ on the defence witness to state that accused No. 9 ’K’ was not present at the time of incident. However, the plea of alibi, which is tried to be proved through the evidence of the defence witness ’A’, who is the brother of accused No. 9 ’K’, is not proved sufficiently. This witness has stated that on that night, accused No. 9 ’K’ went with his taxi for fare. However, he has not stated where accused No. 9 ’K’ had gone on that night. He did not depose name of passenger. In absence of evidence proving that, at the relevant time, accused No. 9 ’K’ was at a particular place, which is far away from the spot of incident and it was impossible for him to remain present at the spot of incident at the time of incident, the plea of alibi cannot be said to be proved.

       Evidence Act, 1872 - Section 134 Number of witnesses. No particular number of witnesses required for proof of any act as evidence is to be weighed and not counted. It is the quality of the evidence which is of significance and not the quantity. That is why Section 134 of Indian Evidence Act clearly lays down that no particular number of witnesses shall in any case be required for the proof of any fact. Hence, the testimony of solitary witness can also be a basis for conviction, if the Court comes to the conclusion that his testimony is true and correct version of the incident. The Hon’ble Supreme Court has, in the case of Lallu Manjhi v. State of Jharkhand, AIR 2003 SC 854 : 2003 All MR (Cri) 590 (SC), in categorical words, laid down that "the Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness." In this case, on careful analysis and appreciation of evidence of PW 12. Court found his testimony to be wholly reliable, hence acceptable with no need of looking for corroboration to it.

       [INDIAN] PENAL CODE, 1860 - Sections 300 and 149 Evidence Act, 1872, Section 3 Conviction for murder based on sole testimony of eye-witness. Where evidence of eye-witness found to be credible and consistent throughout and was corroborated with medical evidence and evidence of recovery of weapon of assault therefore conviction on basis of sole testimony of eye-witness is proper. It is also coming from the medical evidence which proves that both the deceased were having more than 15 to 20 incised wounds on the vital parts of the body, corresponding with internal injuries clearly establishing that they were subjected to indiscriminate assault by deadly weapons by several assailants simultaneously. There is also corroborating evidence of the recovery of the various weapons at the instance of the accused. As discussed in detail by the trial Court, the said recovery is under Section 27 of the Evidence Act.

       [Indian] Penal Code, 1860 - Section 120-B Conviction for offence of criminal conspiracy. In absence of any evidence proving meeting of minds amongst accused persons, conviction under Section 120-B of IPC improper. In the present case, there is absolutely no evidence proving the meeting of minds or of agreement amongst the accused. Though the trial Court has relied upon the evidence relating to the accused sharpening their weapons and coming together at the spot to infer the criminal conspiracy, these two pieces of evidence are too feeble to draw the inference of criminal conspiracy. They are also not sufficient to form the chain of circumstances from which the only and only irresistible inference that can be drawn is about the meeting of minds. This finding of the trial Court, therefore, of holding the accused Nos. 1 to 10 guilty for the offence punishable under Section 120-B of the IPC is required to be quashed and set aside.

       [Indian] Penal Code, 1860 - Sections 149 and 300 Conviction for murder. Where charge against accused persons clearly proved by evidence on record therefore conviction of accused persons under Section 302/149, IPC justified.