1 (APEAL-415-91) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.415 OF 1991 Balu Kondiba Thengil, ) Age Adult ) Resident of Solapur ) .... Appellant. v/s The State of Maharashtra ) .... Respondent. --- Mr. A.P. Mundargi, Senior Counsel i/b Raul S. Kate for the Appellant. Mr. P.S. Hingorani, APP for the State. --- CORAM: V. M. KANADE & K.K. TATED, JJ DATE : 17th DECEMBER, 2011 ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Appellant is the original accused No.2. He has been convicted for the offence punishable under section 302 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for life. He is also convicted for the offence punishable under section 452 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year. Being aggrieved by the said judgment and order, the appellant has preferred this appeal in this court. 2 (APEAL-415-91) 2. Brief facts are as under:- 3. Prosecution case, in brief, is that on 10/4/1989, at about 5.00 P.M., accused Nos. 1 to 5 entered the house of deceased Apparao and all of them assaulted the deceased with knife in his house situated at Warad Chawl. According to prosecution, brother of Apparao was also assaulted with knife and, thereafter, the accused ran away. Apparao and Mallinath were taken to the General Hospital, Solapur where Apparao was pronounced to be dead and, thereafter, Mallinath was treated in the hospital and he was discharged on 29/04/1989. An FIR was registered against the accused and they were arrested. Postmortem was performed by Dr. Kanaki who has stated that the injury on the neck was sufficient in the ordinary course of nature to cause death. Statements of witnesses were recorded. Prosecution examined 19 witnesses in support of its case and the accused examined four witnesses and raised a plea of alibi. 4. Trial Court convicted the accused No.2 on the basis of the sole eye witness testimony of Bhagirathi, wife of the deceased and held that the plea of alibi had not been proved by the accused. 5. Mr. A. P. Mundargi, the learned Senior Counsel appearing on behalf of the appellant submitted that the Trial Court had acquitted the accused No.1, 3, 4 and 5 and 3 (APEAL-415-91) observed that testimony of the sole eye witness P.W. 1 – Bhagirathi was not trustworthy so far as the said accused are concerned. However, at the same time, Trial Court relied on her testimony so far as her evidence against accused No. 2 is concerned. It was submitted that the Trial Court having found that evidence of P.W.1 is not trustworthy so far as accused Nos. 1 and 3 to 5 are concerned, it could not have relied on part of her testimony against accused No.2. Secondly, it was submitted that P.W.1 had made number of improvements in her evidence apart from the fact that there were omissions and contradictions in her testimony which were proved by the defence by bringing them on record. It was thirdly submitted that the appellant was falsely implicated on account of enmity between the deceased, his wife P.W.1 and accused No.2 since the complainant did not like the appellant assisting their landlord Mr. Patil. It was then submitted that the accused No.2 had examined four witnesses in order to prove that he was in the Mill at the time when the said incident had happened. It was submitted that the Trial Court had wrongly discarded the evidence of these witnesses who had established presence of the appellant in the Mill from 9.00 A.M. to 6.00 P.M. 6. On the other hand, the learned APP appearing on behalf of the State submitted that so far as the ground of alibi is concerned, the Court had noticed that there were some alterations in the muster roll and in other documents which were produced by the accused. It was submitted that the 4 (APEAL-415-91) Trial Court had observed that the testimony of P.W. 1 – Bhagirathi was consistent in respect of the role which was attributed to the appellant – accused No.2. Therefore, Trial Court was justified in convicting the appellant on the sole eye witness account of P.W.1. 7. After having heard the learned Senior Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State and after going through the evidence on record, in our view, the prosecution has failed to establish its case against the appellant beyond reasonable doubt and apart from that the accused has established a plea of alibi and, therefore, the judgment and order passed by the Trial Court will have to be set aside for the following reasons. 8. Prosecution in support of its case has examined about 19 witnesses whereas the defence has examined 4 witnesses. Prosecution has examined P.W. 1 - Bhagirathi who is the wife of the deceased and who is a sole eye witness for the said incident. The other four eye witnesses have turned hostile and have not supported the prosecution case. P.W. 2 - Bhiwaji Narote is a panch witness who has been examined by the prosecution to prove recovery of knife at the instance of the appellant. This witness, however, has not supported the prosecution case and he was, therefore, declared as hostile. Though recovery panchanama has been proved by the Police Officer, since the panch who is an 5 (APEAL-415-91) independent witness has turned hostile, recovery of knife at the instance of the accused cannot be relied upon. The next witness is Mallinath Kolhe (P.W.3), brother of the deceased. Prosecution case was that the brother of the deceased was also assaulted with knife by all the accused. P.W.3, however, did not support the prosecution case and he was declared hostile. The next witness is Vishnu Khandekar (P.W.4) who is the father of P.W.1 – Bhagirathi. Though the prosecution case is that he was in the house and had witnessed the said incident, this witness did not support the prosecution case and stated that he was in Pune when the incident took place and he came to know about death of Apparao when he received the telegram. The next witness is Dhanraj Khandekar (P.W.5). He also did not support the prosecution case. P.W. 6 is Sharifabi Tamboli. She did not support the prosecution case and, therefore was declared hostile. P.W. 7 – Saudagar Aher is the panch witness who was examined to prove the seizure panchanama of clothes. He also did not support the prosecution case and, therefore, he was declared hostile. P.W. 8 – Dr. A.S. Kanaki had performed the postmortem. He has stated that the cause of death was a shock as a result of stab injury. He has stated that there were five injuries on the person of the deceased and the first injury was a stab injury on the neck and other injuries were simple injuries. Prosecution, therefore, has proved that the death of Apparao was homicidal. P.W. 9 is Dr. S.B. Patil who was working as Medical Officer in the General Hospital, Solapur who examined Vishnu Khandekar 6 (APEAL-415-91) and Mallinath Kolhe and has stated that there were two injuries on the person of Vishnu; one was grievous and the other was simple and the same was the case of injuries which were found on the person of Mallinath. P.W. 10 - Sanjay Kamble is the panch witness who was examined to prove the pachanama in respect of the recovery made at the instance of the accused. He has also turned hostile and did not support the prosecution case. P.W. 11 – Isamail Shaikh is another panch witness regarding the recovery of sword at the instance of accused Wakse. However, he also turned hostile and did not support the prosecution case. P.W. 12 – Basawant Patil is the Police Head Constable who was on duty at the Police Station who recorded statement of Mallinath. P.W. 13 – Bhanudas Gaikwad is the Police Head Constable who has proved the panchanama in respect of clothes of the deceased. P.W. 15 – Shivaji Desai is the Police Inspector who was attached to Police Station Foujdar Chawadi, Solapur. P.W. 16 – Prakashrao Chavan is the Police Inspector attached to Police Station Foujdar Chawadi, Solapur, who took over the investigation on 30/07/1989. P.W. 17 – Somanna Kumthekar was holding additional charge of Foujdar Chawadi Police Station between 8/6/1989 and 30/7/1989 and he investigated the offence during this period. P.W. 18 – Ramchandra Deshpande was working as Assistant Sub- Inspector who interrogated the accused and recorded memorandum of panchanama in respect of the sword which was produced at the instance of accused Nos. 3 to 5 and, finally, P.W. 19 is Dr. Suresh Bakale who was working as 7 (APEAL-415-91) Radiologist and who examined Vishnu Khandekar. 9. From the testimony of the aforesaid witnesses examined by the prosecution, the prosecution has relied on the sole eye witness testimony of P.W. 1 – Bhagirathi, the wife of deceased. P.W. 8 is the doctor who performed the postmortem. Panch witnesses have turned hostile and did not support the prosecution case and the other witnesses are Police Officers who conducted investigation. Since the recovery of knife has not been established, the only evidence on the basis of which the prosecution sought to prove its case against the appellant was the evidence given by P.W.1. So far as the evidence of recovery of knife is concerned, it is not established since the panch witness has turned hostile. 10. The accused/appellant has taken a plea of alibi and has examined four witnesses viz D.W. 1 – Vishwanath Wadaje, who was serving as Labour Officer in Narsing Girji Mill, Solapur, D.W. 2 - Narayan Kalsulkar who was working as a Folding Master in the said Mill, D.W. 3 – Shivaji Bodhale who was a worker in the Cloth Godown and on that date he was entrusted with the work of a jobber and, lastly, D.W. 4 – Shankarayya Chadchankar who was working as Pay Sheet Clerk in the said Mill. 11. It is a settled position in law that whenever defence of alibi is raised by the accused, the entire burden of proving 8 (APEAL-415-91) his case is on the accused alone in view of provisions of section 103 of the Evidence Act. At the same time, the initial burden of proving the case against the accused is on the prosecution and, therefore, prosecution has first to prove its case beyond the reasonable doubt against the accused and, thereafter, a plea of alibi has to be taken into consideration and while weighing the prosecution case and defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court. Keeping this principle in mind, it has to be seen whether the prosecution has established its case on the basis of evidence which is on record. 12. The entire case of the prosecution hinges on the testimony of sole eye witness P.W. 1 – Bhagirathi, wife of the deceased since other eye witnesses have turned hostile. In her evidence, she has stated that the accused Nos. 1 to 3 entered her house, caught hold of her husband and dragged him out and when she tried to intervene, accused No.1 pushed her aside and he also pushed aside her father and then took out knife and gave a blow with that knife on the neck of her husband and further he also assaulted brother of her husband Mallinath. In the cross-examination, several improvements made by this witness (P.W.1) have been brought on record and the Trial Court on the basis of improvements and omissions made by this witness has 9 (APEAL-415-91) acquitted the other accused. In our view, it is difficult to rely on testimony of this witness. Trial Court has found that her testimony is not trustworthy and on that ground acquitted accused Nos. 1 and 3 to 5. If part of the testimony of this sole eye witness has been disbelieved, it is difficult to rely on the other part of her testimony in which she attributes overt act to the accused No.2, appellant herein. In our view, it is difficult to convict the accused No.2, appellant herein on the basis of testimony of P.W.1 particularly because all other witnesses including father of P.W.1 and her brother-in-law and other witnesses have not supported the prosecution case. Recovery of knife at the instance of the accused/appellant has not been established since the panch witness has turned hostile. 13. Apart from that the appellant has examined four defence witnesses who have stated that the appellant was present in the Mill on that date from the morning till evening upto 6 O’clock. Trial Court has noted that in the muster roll, the appellant was shown to be present on 10/04/1989. It is a settled position that so far as defence witnesses are concerned, they cannot always be termed to be tainted and they are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on par with that of the prosecution. D.W. 1 – Vishwanath Wadaje was working as a Labour Officer in the said Mill where accused/appellant was working. He has 10 (APEAL-415-91) given the schedule of working in the said Mill. He has stated that the workers work from 9 A.M. to 12 noon and then there is recess of 1 hour and, thereafter, they work from 1.00 P.M to 6.00 P.M. He has stated in his cross-examination that, in the Pay Sheet, the appellant was marked as present on 10/04/1989. D.W. 2 – Narayan Kalsulkar was also a co- worker working in the said Mill and he has stated that the appellant was present on that day in the Mill. He has further stated that the appellant was paid salary in the evening at about 4.30 P.M. and his presence had been marked in the Pay Sheet. D.W. 3 – Shivaji Bodhale has stated that the appellant was on duty with him in the Cloth Godown on the date of the incident and since the permanent jobber was on leave, he was entrusted with the work of a jobber. He has stated that on 10/04/1989, in all, 11 persons were on duty and the appellant/accused was one of them. The entry was made by him in the attendance book and the said entry was produced on record at Exhibit-85. P.W. 4 – Shankarayya Chadchankar has stated that he was working as a Pay Sheet Clerk in the said Mill and he has further stated that the appellant was present on the date of the incident and the salary was paid to him at about 4.30 P.M. 14. Taking into consideration the evidence adduced by the appellant before the Trial Court, in our view, the appellant has established that on the relevant date he was present in the Mill from 9.00 A.M to 6.00 P.M and the documents which are brought on record also further corroborate and establish 11 (APEAL-415-91) this fact. 15. It is quite well settled that the burden of proving alibi is on the accused. The burden on the accused is undoubtedly heavy. Section 103 of the Evidence Act provides that burden of proving any particular fact, lies on that person who wishes the court to believe in its existence. Plea of alibi flows from section 11. It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in I.P.C or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. It is also well settled that the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily and if that burden is not discharged, it may not be necessary to go into the question whether the accused had succeeded in proving the defence of alibi. However, in the present case, we have already observed that the prosecution has not proved its case beyond the reasonable doubt. Since the plea of alibi has been taken and if it is held that the plea of alibi has been established, it would be an additional factor in support of the defence. In the present case, the appellant has established his presence in the Mill which is evident from the documents which are produced by 12 (APEAL-415-91) the defence witnesses who are all independent and their testimony is supported and corroborated by the documentary evidence such as Pay Sheet etc which is produced by the accused. Trial Court, in our view, has erred in coming to the conclusion that the appellant had not produced any negative evidence to show that he had not left the Mill where he was working since morning. In our view, from the evidence of the defence witnesses which are examined by the accused, it has been established that the accused/appellant was working in the Mill till about 6 O’clcok in the evening and the incident in question admittedly took place between 4.30 P.M. and 5.00 P.M. The Judgment and Order of the Trial Court, therefore, will have to be set aside and the appellant will have to be acquitted of the offence punishable under sections 302 and 452 of the Indian Penal Code. 16. In the result, following order is passed:- ORDER Judgment and Order passed by the Trail Court is set aside. The appellant is acquitted of the offences punishable under sections 302 and 452 of the Indian Penal Code. The Appellant is on bail. His bail bonds stand cancelled. (K.K. TATED, J.) (V.M. KANADE, J.) 13 (APEAL-415-91)