drp {1} Cri. Appeal No.553/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.553 OF 2009 Usman Ali Yusuf Ali APPELLANT Age-26 years, Occ-Nil R/o Lendipura, Bhusawal, Dist-Jalgaon VERSUS The State of Maharashtra RESPONDENT Through P.I. Taluka Police Station, Bhusawal, Dist-Jalgaon ....... Ms.Monika Purnapatre h/f Mr.Swapnil Patil, Advocate for appellant Mr.N.H.Borade, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 10th February 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.1000/- with default stipulation of undergoing further R.I. For 5 days so also u/s 326 of the Indian Penal Code and sentenced to suffer RI for 4 years and to pay a fine of Rs.1000/- in default, to undergo further RI for 5 days, drp {2} Cri. Appeal No.553/2009 by Additional Sessions Judge, Jalgaon, vide judgment and order dated 16.09.2009 rendered in Sessions Case No.193/2005, has questioned the correctness of his conviction and sentence by preferring the present criminal appeal. 2. Prosecution case, as unfolded during the trial, may briefly be stated thus - a) PW-18 Kiran Dhatrak, Police Inspector, Bhusawal Taluka Police Station, on receipt of telephonic message, on 15.07.2007, regarding commotion near Bonde Hotel, at Sakegaon, had rushed to the spot along with the police staff and noticed that two dead bodies of males were lying there. He also learnt that injured in the said incident were shifted to Municipal Hospital and hence he went to Municipal Hospital, Bhusawal, where he recorded statement (Exhibit-16) of injured Vikas Sonar (PW-1). On the basis of the statement (Exhibit-16) an offence was registered at Bhusawal Taluka Police Station vide crime No.48/2005 u/s 302, 307 r/w 34 of the Indian Penal Code. Investigation of the said crime was taken over by PW-18 PI Kiran Dhatrak. b) Thereafter, inquest Panchanama (Exhibit-20 and Exhibit-22) were drawn on both the dead bodies. drp {3} Cri. Appeal No.553/2009 Witnesses to the inquest Panchanama identified that the dead bodies were of Vijay Sonar and Pradip @ Pravin Ahirrao. Thereafter, the dead bodies were referred for Postmortem examination and Spot Panchanama (Exhibit-23) was drawn. From the spot, blood mixed soil and plain soil were seized under seizure Panchanama (Exhibit-14). c) PW-14 Dr.Sandip Ingale, conducted autopsy on both the dead bodies. While performing postmortem on the dead body of deceased Vijay Sonar, the following external injuries were noticed - (i) Echomoses (bruises) over front neck. (ii) Stab wound on left thigh anteriorly of size 1 x ½ inch x 2 inces deep x (iii) Injury was found on Thyroid cartilage and hyoid bone was broken. All these injuries were antemortem. The medical officer, on internal examination, noticed that there was submucosal hemorrhage of larynges and superior horns of thyroid cartilage was fractured. The medical officer opined that the cause of death of deceased Vijay Sonar was due to asphyxia due to throttling. Accordingly, Postmortem report (Exhibit-56) was drp {4} Cri. Appeal No.553/2009 prepared. d) While conducting postmortem on the dead body of deceased Pravin Ahirrao, the medical officer noticed stab wound on left side of chest of manubrum sterni on left side rib with fracture 4th rib penetrating upto heart on upper right side of heart of size 1 x ½ inch x 2 inch deep. On internal examination the medical officer noticed that hemothorax was present and there was injury to the heart and right chamber was ruptured and clots were found. It is opined that cause of death of deceased Pravin was injury over chest and rupture of heart on right side. Accordingly, postmortem report in respect of autopsy conducted on the dead body of Pravin was prepared at Exhibit-58. e) During the further investigation, clothes (Articles 1 to 3) on the person of injured Vikas (PW-1) were sized under seizure Panchanama (Exhibit-13). So also clothes on the person of the deceased were seized vide seizure Panchanama Exhibit-24. During the said incident Shankar Chaudhari was also injured and he was taking treatment in Tapi Life Care Center, Bhusawal and hence clothes on his person were seized under seizure Panchanama (Exhibit-26). During the further investigation, the auto rickshaw, used by the drp {5} Cri. Appeal No.553/2009 assailants, was seized under seizure Panchanama (Exhibit-52). The appellant was put under arrest on 20.07.2005 and on 21.07.2005 clothes on his person so also clothes on the person of other accused were seized under Seizure Panchanama (Exhibit-42). f) On 24.07.2005, while in custody, the appellant made voluntary disclosure statement (Exhibit-35), which lead to the recovery of one gupti (Article-4), which was concealed in a field and the same was seized under seizure Panchanama (Exhibit-37). On that day, accused Sanju also made voluntary disclosure statement (Exhibit-36), which lead to the discovery of iron rod stained with blood (Article-5), concealed in a field, which was also seized under recovery Panchanama (Exhibit-38). g) During the further investigation blood samples of the appellant and accused were collected. Thereafter, the property seized during the investigation and the blood samples of the appellant and accused was sent to CA along with covering letter (Exhibit-50). In due course CA reports (Exhibit-82 to 86) were received. During the investigation, from time to time, statements of certain witnesses were recorded. Surveyor had prepared a sketch map of scene of drp {6} Cri. Appeal No.553/2009 offence (Exhibit-62). On completion of the investigation, charge sheet was filed against the appellant and accused before JMFC, Bhusawal. h) On committal of the trial to the Court of Sessions, trial court framed charge (Exhibit-2) against the appellant and the accused for an offence punishable u/s 302 and 307 r/w 34 of the Indian Penal Code so also u/s 25 r/w 4 of the Arms Act and u/s 135 of the Bombay Police Act. The appellant and accused pleaded innocence and claimed to be tried. Prosecution, to substantiate the charge levelled against the appellant and accused Sanju, examined as many as 18 witnesses. The trial court, on appreciation of the evidence on record, convicted the appellant for the charge of murder of Pravin @ Pradip Ahirrao and for causing grievous hurt to deceased Vijay Sonar and sentenced him accordingly. Trial court, however acquitted accused Sanju from the offence punishable u/s 302 of the Indian Penal Code and other offences, but convicted him for an offence punishable u/s 326 of the Indian Penal Code. Admittedly, the prosecution has not questioned the correctness of the acquittal of accused Sanju so also acquittal of appellant from other offences. drp {7} Cri. Appeal No.553/2009 3. For better appreciation of the rival submissions advanced on behalf of the appellant and respondent State, it may be useful to advert to the evidence of material prosecution witnesses. 4. Evidence of PW-14 Dr.Sandip Ingale, who had conducted postmortem on the dead bodies of both the deceased, is sufficient to hold that the deaths of both the deceased are homicidal. Postmortem was carried out on both the dead bodies within some hours after the occurrence of the incident and the deaths were instantaneous deaths. 5. Pivot of the prosecution evidence, revolves round PW-1, injured eye witness Vikas Sonar, who has stated in his evidence before the Court that he was resident of Burhanpur. On 14.07.2005, he, along with his friends Vijay, Satish, Shankar and Pravin had been to Jalgaon to attend marriage of brother of their friend. After the Haldi ceremony, all of them went to a hotel and had consumed beer. Thereafter, they proceeded to a Dhaba on Bhusawal road to take dinner. On 1.00 a.m. on the following day, they reached at Hotel New Bonde, where they ordered dinner. While they were waiting for the dinner to be served, one truck came there and two males and three women alighted from the said truck. All the 5 persons, who had alighted from truck, sat on a heap of a sand. PW-1 Vikas and his friends guessed the three women to be sex workers. Therefore, they approached them and proposed for drp {8} Cri. Appeal No.553/2009 having sex for money. At that time, one of the two males told them that (jkuh esjk Mko gS mlds lkFk lksuk ugh) Rani is my beloved and you should not sleep with her. Thereafter, all the 5, who had alighted from the truck asked this witness and his friends to provide them beer and food, which they refused and hence the two males started abusing them so also he and his friends abused the said two male persons. At that time, the three women, by uttering the names of those two males as Usman and Sanju, asked them not to indulge in quarrel. Thereafter the two males went towards Bhusawal and then he and his friends enjoyed sex with the said sex workers and returned to Dhaba to take food. After some time, those two males, Usman and Sanju came back in an auto along with two others from Bhusawal. At that time Usman was holding knife and Sanju was holding iron rod. They assaulted them. Usman gave knife blows on the thigh of Vijay and on abdomen of Pravin and accused Sanju assaulted on his face and backside of left thigh with iron rod. Thereafter, all of them started running here and there to save their lives. The assailants also fled from the spot in an auto bearing registration No. MH-19 / 562 towards Jalgaon. Thereafter, he searched for his friends and noticed that Pravin was lying on the heap of sand while Vijay was found lying at the corner of the road. They also noticed that both of them were dead. Thereafter, he along with his other friends went to Bhusawal Taluka police station to lodge the report. He and others were referred to hospital for treatment. In the hospital, his complaint (Exhibit-16) was recorded. He has further stated that again he and his friends were called in drp {9} Cri. Appeal No.553/2009 the police station on 21.07.2005, where he identified the appellant and accused Sanju. During the trial, he identified Articles 1 to 3 to be his clothes, which were seized by the police while he was taking treatment so also he identified the knife (Article-4) and iron rod (Article-5) as the weapons used for assault. 6. PW-1 Vikas has stated in his cross examination that no quarrel took place amongst his friends on account that both the deceased Vijay and Pravin were under the influence of beer and were haunting to get more beer and in that process they were wasting time of others. No quarrel took place when he and his friends enquired with the three women about having sex. The fact that appellant and accused along with three women demanded food is not mentioned in the complaint. Initial quarrel was going on for about 5 minutes on account of demand of food. He denied that during the said quarrel, he and his friends were aggressive. He has further denied that the women were referring to the deceased as Usman and Sanju. The entire incident of assault took place within 3 to 4 minutes and hence they ran towards different directions and returned after about 10 minutes to the spot when the hotel owner had already reached at the spot. He has asserted, in his further cross examination, that only the accused assaulted them. He has admitted that they have not attempted to lift the deceased and that he was admitted in the hospital for about 6 days. He had not given the description of the weapons i.e. gupti (Article 4) and iron rod (Article-5) in the complaint. He has admitted that the panch, to the drp {10} Cri. Appeal No.553/2009 inquest and seizure Panchanama are his relatives. No talk took place between the assailants and them when the assailants came near them when they were waiting for their food, which was ordered by them. Deceased Vijay was in standing position when the first blow was inflicted by the assailants. After the first blow was given to deceased Pravin, he started running, but he was chased by the assailants and then assaulted. Deceased Pravin was repeatedly assaulted by the assailants. On receipt of second blow, he started running to save himself. He denied that the assailants were simultaneously assaulting himself, Vijay and Pravin. He was unable to state as to whether Vijay had sustained injuries on his hands, when he had raised hand to save the blow. He has categorically admitted that no Test Identification Parade was arranged for the identification of the assailants, after they were put under arrest. He denied that they were assaulted by the persons, who had came in a truck with whom he and his friends took quarrel. He further denied that he and his friends have falsely implicated the appellants in this case at the instance of police as the police had already arrested the appellant in connection with this case. 7, According to us, evidence given by this witness in respect of the role played by the appellant, is not shattered at all even in his cross examination. It is also to be noted that he has disclosed the names of the assailants in the complaint itself, which was recorded immediately within a very short time span. drp {11} Cri. Appeal No.553/2009 8. At this, juncture, it may be useful to advert to the evidence of PW-11 Dr.Deepak Wani, medical officer attached to Municipal Hospital, Bhusawal, who had examined PW-1 Vikas. After examining PW-1 Vikas, who was injured in the said incident, following injuries were noticed on his person. 1. Contused lacerated wound size 5 x 2 x 2 cm over right face near right ear 2. Contused lacerated wound of size 2 x 2 x .5 cm over upper lip on right side. 3. Contused lacerated wound of size 3 x 2 x .5 cm over left gluteal region with fracture femur. The medical officer, PW-11 has opined that the injuries noticed on the person of PW-1 Vikas were fresh and the age of the same was within 12 hours. He has further deposed that on examination of the patient, he had suspected fracture and hence he was referred to civil hospital Jalgaon. On examination of PW-1 Vikas, he had issued the injury certificate (Exhibit-47). He has opined that the injuries found on the person of PW-1 Vikas can be possible by the weapon like iron rod or tommy. He has further stated that on the same day he had also examined injured Satish, who had sustained injuries in the incident and had issued injury certificate (Exhibit-48). This witness is not cross examined by the defence. drp {12} Cri. Appeal No.553/2009 9. Prosecution has also examined PW-6 Suresh Dusane, to prove the disclosure statement (Exhibit-35) made by the appellant on 24.07.2007, which had led to recovery of knife (Article-4) and was seized under Seizure Panchanama (Exhibit-37). He has stated in his evidence that on 24.07.2007, the appellant had made a voluntary disclosure statement in his presence, which was reduced into writing in his presence and was signed by him and the appellant. He identified the signature of the appellant on the memorandum (Exhibit-35). He has further stated that after they went to Sakegaon road, in a police vehicle, then they were taken by the appellant in an agricultural field from where, after removal of some soil, the appellant took out one gupti, which was stained with mud and blood. The gupti was discovered at the instance of the appellant and was seized under seizure Panchanama (Exhibit-37), after it was properly sealed at the spot. He identified the said gupti (Article-4) before the Court. 10. PW-6 Dusane, has admitted in his cross examination that the appellant made disclosure statement so also the weapon was discovered at the instance of appellant, in presence of accused Sanju. Both, the appellant and accused Sanju had signed the recovery Panchanama. The place, from where the weapon was recovered, was at the distance of about 7 to 8 feet from the road and others have access to the said place. He denied that as he was from the same community of the deceased and the victims, he has drp {13} Cri. Appeal No.553/2009 signed the pre-prepared Panchanama, without any disclosure being made by the appellant and without any recovery at the instance of the appellant. He has further denied that he is regular and habitual Pancha for the police. 11. We have heard Ms.Monika Purnapatre, learned counsel for the appellant followed by the submissions of learned APP Mr.Borade, in the light of the evidence discussed above. 12. Learned counsel for the appellant has urged that the conviction of the appellant is solely based on the evidence of eye witness Vikas (PW-1), whose evidence is not reliable and though other witnesses were available, yet they were not examined by the prosecution and hence adverse inference ought to have been drawn by the trial court against the prosecution. According to learned counsel for the appellant, it is not safe to rely on the sole testimony of the single eye witness. In support of her such contention, she has placed reliance on the observations of the Apex Court, in the matter of “Vedivelu Thevar V/s The State of Madras” AIR 1957 SC 614 and in the matter of “Bhimappa Chandappa Hosamani V/s State of Karnataka” 2006 (3) Cr.C. 408 (SC). Learned counsel for the appellant further urged that the evidence of PW-1 is having full of falsehood, which is not separable from truth and, therefore, his evidence needs to be discarded in totality. In support of her such contention, she has relied on the observations of the Apex Court, in the matter of “Kanbi Nanji Virji V/s State of drp {14} Cri. Appeal No.553/2009 Gujrat” AIR 1970 SC 219. It is further urged that in the present case the assailants were unknown to the victim and hence it was necessary to conduct the Test Identification Parade of the accused, after they were arrested. According to her, admittedly, in the present case, test identification parade is not conducted and, therefore, identification of the appellant has become doubtful. To buttress her contention, she placed reliance on the observations of the Apex Court in the matter of “Mohanlal Gangaram Gehani V/s State of Maharashtra” AIR 1982 SC 893. Ultimately, it is urged that suspicion, however strong against the accused, not to be substantiated as legal proof. In support of her such contention, learned counsel for the appellant has placed reliance on the observations of the Apex Court, in the matter of “Salim Akhtar Mota V/s State of UP”, AIR 2003 SC 4076. It is, therefore, urged that considering all these grounds the appeal be allowed and the conviction and sentence of the appellant be quashed and set aside. 13. Per contra, learned APP supported the impugned judgment and urged for dismissal of the appeal, by confirming the conviction and sentence awarded by the trial court. 14. We have re-appreciated the entire evidence on record in the light of the rival submissions. Initially, we would like to deal with the submission of the learned counsel for the appellant that the assailants were unknown to the victim and hence TI Parade was necessary and in absence of TI Parade, the evidence in respect drp {15} Cri. Appeal No.553/2009 of identification of the appellant is not reliable. At this juncture, it may be useful to consider the observations of the Apex Court in the matter of “Mohanlal Gangaram Gehani V/s State of Gujrat” (referred supra), wherein it is observed by the Supreme Court that the accused were not known to the victim prior to the occurrence of the incident, test identification parade was not held and the accused were shown to the victim by the police before the trial and hence identification of the accused before the Court is valueless and cannot be relied upon. However, in the instant case, admittedly, the FIR was lodged immediately within some hours after the incident and in the FIR itself the injured (PW-1) Vikas has disclosed the names of the appellant and co-accused Sanju and he has also disclosed as to how he had came to know about the names of the appellant and accused Sanju. No doubt, FIR is not a substantive piece of evidence, but in the substantive evidence, PW-1 has stated that after the appellant, co-accused Sanju and the three women alighted from the truck, PW-1 Vikas and his friends thought the said women to be sex workers and hence when they approached those women and appellant and accused, during exchange of words, they came to know about the names of the assailants. In the premise, though prior to the incident the appellant was unknown to the sole eye-witness, yet at the time of the actual incident the assailant was not unknown to him. In the premise, it cannot be said that the appellant was unknown to PW-1 Vikas nor can it be said that the appellant was shown by the police to PW-1 prior to trial, as no such evidence has came on drp {16} Cri. Appeal No.553/2009 record. Therefore, it cannot be inferred that the appellant was totally unknown to PW-1 when he lodged the report. Hence, it cannot also be inferred that non conduct of test identification parade of the appellant, has proved fatal to the prosecution case. 15. Now, turning to the next submission of the learned counsel for appellant as to whether testimony of sole eye witness (PW-1) can be termed as sterling evidence. In this respect, it may be useful to refer the observations of the Apex Court, in the matter of “Vedivelu Thevar V/s State of Madras” (referred supra). The Apex Court, in the said judgment has observed thus - “The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in S.134, which by laying down that ‘no particular number of witnesses shall in any case, be required for the proof of any fact’ has enshrined the well recognized maxim that ‘Evidence has to be weighed and not counted’. It is not seldom that a crime has been committed in the presence of only one witness leaving aside those cases are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be drp {17} Cri. Appeal No.553/2009 entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly reliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third