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2014 Supreme(Bom) 2056
IN THE HIGH COURT OF JUDTCATURE AT BOMBAY
P. V. HARDAS & ANUJA PRABHUDESSAI, JJ.
Mohammadali Badshaha Sayyad & Anr. – Appellants
Vs.
State of Maharashtra – Respondent
Criminal Appeal No.580, 160 of 2007
Decided On : 18th June, 2014
Advocate Appeared:
Mr. VIKAS SHIVARKAR, Adv. for Appellant in Cri. Appeal No.580/07
Mr. H. J. DEDHIA, APP for State
Headnote:Evidence Act, 1872 - Section 134 Testimony of solitary eye-witness. If testimony of solitary eye-witness is neither wholly reliable nor wholly unreliable, only then Court may look for corroboration. 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.
[Indian] Penal Code, 1860 - Sections 201, 302 and 34 Conviction under based on testimony of sole eye-witness. Where testimony of sole eye-witness that accused persons killed deceased by strangulation, neither corroborated by C.A. report nor supported by any other evidence therefore conviction of accused persons set aside. 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, the eye-witness had not disclosed the incident for nearly one and half months. PW 1 - ’A’ 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 - ’A’. The statement of the solitary witness was recorded after delay of one and half months. No effort was taken by ’A’ at informing the police about the incident. The evidence of PW 1 - ’A’ 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 ’M’, Court, therefore, find that no reliance whatsoever can be place on the testimony of PW 1 - ’A’. The fact that telephone calls were made from the STD Booth to the residence of the father of PW 1 - ’A’ would not necessarily indicate that the calls were made by PW 1 - ’A’. Even the identification of PW 1 - ’A’ as the person who had made the telephone call by PW 6 - ’V’ is not reliable. Belated recording of the statement of ’A’ is a factor which impels us not to place any reliance on the testimony of PW 1 - ’A’. Additionally, that there is no other supportive evidence which would bolster the evidence of PW 1 - ’A’. Thus, therefore, the appellants/accused are entitled to be given the benefit of doubt.
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. Moharmmadali 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 n 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 he stated thus:-
PW 10- PS J 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
