Case: Vishvash Machhinder Saptal Vs. The State of Union Territory Through Daman Police Station

Duly proved contradiction cannot be used for corroborating the evidence. Unfortunately, the learned trial Court committed an error on this aspect of appreciation of evidence and used the duly proved contradiction as a substantive peace of evidence for convicting the accused.22. PW3 Vilash Shinde has not spoken that earlier to the incident of assault on deceased Naresh Pandey, he had been to the Machine Room to tell Naresh Pandey that he is not giving good production and he should change trend for giving good quality production or else he would be removed. Thus evidence on this aspect coming on record through PW1 Sunilkumar remained uncorroborated. Even though PW3 Vilash Shinde has not fully supported the prosecution case, even contradiction to this effect from his former statement is not brought on record by the prosecution. In other words, it goes to show that PW3 Vilash Shinde had even not made any such former statement regarding this incident deposed by PW1 Sunilkumar. Thus evidence of PW1 Sunilkumar on this material aspect remained uncorroborated.23. Statement of PW3 Vilash Shinde goes that he has not seen the incident of assault on deceased Naresh Pandey but he has reached the spot after that incident. Evidence of PW3 Vilash Shinde as such does not corroborate evidence of PW1 Sunilkumar regarding the actual assault.24. PW4 Meena Patel and PW5 Shantabai Dhamal are the employees of M/s.V.P.Plastics, who at the relevant time were working in the same section i.e. Finishing Section. Their congruous evidence shows that after hearing the shouts, they reached the Machine Section and found deceased Naresh Pandey lying on the floor with bleeding injuries. They both unanimously deposed that accused Vishvash Saptal and PW1 Sunilkumar were present in the Machine Room. However, both of them have stated that PW3 Vilash Shinde was not seen by them on the spot of incident. Though both these witnesses were cross-examined by the prosecution, nothing came on record in their cross-examination to infer guilt of the accused in the crime in question. Thus, evidence of both these witnesses is not useful to corroborate version of PW1 Sunilkumar in respect of the alleged assault. 25. PW7 Arun Shukhla is a panch witness to the spot panchanama and his version read with the contemporaneous document i.e. spot panchanama Exhibit-20 goes to show that incident happened in Machine Section / Room where a wooden log of 3 to 3.5 ft. length was found and it was seized by the police. Similar is the evidence of PW8 Hiralal Chouhan, who recorded the spot panchanama. The seized wooden log was subjected to the chemical analysis and human blood of O group was found on it. Serological Examination Report goes to show that blood of deceased Naresh Pandey as well as that of accused Vishvash Saptal belong to O group. That apart, mere finding of blood of the deceased or that of the accused on the wooden log cannot be said to be incriminating circumstances against the accused. The other part of evidence of PW8 Hiralal Chouchan only explains the line of investigation conducted by him.26. It is thus clear that direct evidence as well as other evidence produced by the prosecution in support of the charge levelled against the accused is not at all reliable, cogent as well as trustworthy. In such situation, the motive, if any, with the accused to commit the crime in question becomes somewhat significant. True it is that normally there exists a motive for every crime and proof of its existence is not necessary for conviction but when direct evidence adduced by the prosecution cannot be said to be free from doubt, then, duly proved motive can be considered as a circumstance which is relevant for assessing the evidence. The motive is that which impels the accused to commit a crime. In the instance case, as per version of PW1 Sunilkumar, after PW3 Vilash Shinde, the Supervisor left the Machine Section after giving a warning to deceased Naresh Pandey, accused Vishvash came and after talking with deceased Naresh Pandey killed him by assaulting him. Evidence of PW1 Sunilkumar is conspicuously silent about the subject of conversation between the deceased and the accused. Entire evidence of the prosecution does not reflect any motive with the accused to eliminate the deceased. As such, in the case in hand, motive is shrouded in mystery.27. Careful and meticulous reading of evidence of prosecution, thus indicates that evidence adduced by the prosecution is not of the standard required in a criminal trial for basing conviction. Upon meticulous examination of the evidence in this case, a reasonable doubt grows out that the accused might not have committed the offence in question. With certainty, we are not in a position to give a finding that the accused must have committed murder of deceased Naresh Pandey. It is a fundamental rule of criminal jurisprudence that before a conviction could be sustained, the prosecution has to establish that evidence on record unerringly points out that its case is free from all reasonable doubt. The accused cannot be convicted on the premises that case of the prosecution may be true. In the case in hand, evidence of PW1 Sunilkumar only indicates that the accused might have committed the crime in question but with all certainty, we are not unable to persuade ourself that it is the accused and the accused only who had murdered deceased Naresh Pandey. Thus, for the reasons stated in the foregoing paras, we are of the considered view that findings of the learned trial Court for inferring the guilt of the accused cannot be sustained. On re-appreciation of evidence on record, we have recorded the compelling and substantial reasons for interfering with the impugned judgment and order of conviction. On reviewing the entire evidence of the prosecution, we are of the considered opinion that the accused is entitled to the benefit of doubt and as such, the impugned judgment and order of conviction and sentenced needs to be quashed and set aside. Hence the order:-(

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. At the outset, it needs to be mentioned here that thoughPW3 Vilash Shindeis stated to be an eye witness to the alleged incident of assault by the accused, he has not supported the prosecution case in respect of the alleged assault. PW4 Meena and PW5 Shantaben were employees working in the Finishing Section and they reached the spot after the incident in question. Both these witnesses are not eye witnesses to the incident in question. Therefore, now only evidence available on record to give an eye witness account of the incident is that of PW1 Sunilkumar.9. Trial is an attempt to ascertain guilt or innocence of the accused and for reaching to a correct conclusion, the Court is required to adopt a rational approach by evaluating the evidence by its intrinsic worth. Crime might have been committed in presence of many witnesses but there are cases where the testimony of a single witness is only available in proof of the crime. As a general rule, the Court can and may act on the testimony of a single witness even though it is without corroboration. Section 134 of the Evidence Act, 1872 makes it clear that our legal system does not insists of plurality of witnesses and, therefore, the credibility of a sole witness can outweigh the testimony of number of other witnesses of indifferent and hostile character. If the testimony of such a single witness is found by the Court to be wholly reliable, there is no legal impediment to the conviction of the accused on such proof. In the present case, this Court is required to weigh carefully the testimony of single witness PW1 Sunilkumar and if it is satisfied that evidence of this witness is reliable and free from all taints leading to suspicion, his version can be accepted and by confirming the conviction recorded by the trial Court, the appeal can be dismissed. That apart, in the case in hand, we will have to scrutinize evidence of PW1 Sunilkumarsole eye witness to the alleged incident carefully and minutely in order to judge whether he passes the test of reliability and trustworthiness for basing conviction in respect of major offence as he seems to be an interested witness. Let us, therefore, scrutinize his evidence in detail.10. It is in evidence of PW1 Sunilkumar that he as well as deceased Naresh Pandey were working in Machine Section / Room of M/s.V.P.Plastic Company. PW1 Sunilkumar has stated that he was working as a helper. His testimony is conspicuously silent about the capacity in which deceased Naresh Pandey was working in the Machine Section. However, his evidence goes to show that he used to work on a big machine in the Machine Section which is located in the middle whereas deceased Naresh Pandey was working on a small machine. PW1 Sunilkumar has not claimed that accused Vishvash Saptal who was Machine Operator, used to work in the same Machine Section / Room of M/s.V.P.Plastic Company. On the contrary, material elicited inof PW1 Sunilkumar goes to show that on 13th September, 2007, he was working on one out of the three big machine whereas deceased Naresh Pandey was working on one of the total seven machines in the Machine Section / Room. Evidence of PW1 Sunilkumar goes to show that out of total seven machines in that section, only two machines which were occupied by them were functioning and rest of the machines were not functioning. This goes to show that accused Vishvash Saptal was not working in Machine Section / Room on the day of the incident i.e. 13th September, 2007. At what place accused Vishvash Saptal was working on 13th September, 2007 is as aspect shrouded in mystery, as entire prosecution evidence does not show the exact place of work of accused Vishvash Saptal on that day of incident. Even evidence of alleged eye witnessPW1 Sunilkumar isconspicuously silent on this aspect.At the outset, it needs to be mentioned here that thoughPW3 Vilash Shindeis stated to be an eye witness to the alleged incident of assault by the accused, he has not supported the prosecution case in respect of the alleged assault. PW4 Meena and PW5 Shantaben were employees working in the Finishing Section and they reached the spot after the incident in question. Both these witnesses are not eye witnesses to the incident in question. Therefore, now only evidence available on record to give an eye witness account of the incident is that of PW1 Sunilkumar.9. Trial is an attempt to ascertain guilt or innocence of the accused and for reaching to a correct conclusion, the Court is required to adopt a rational approach by evaluating the evidence by its intrinsic worth. Crime might have been committed in presence of many witnesses but there are cases where the testimony of a single witness is only available in proof of the crime. As a general rule, the Court can and may act on the testimony of a single witness even though it is without corroboration. Section 134 of the Evidence Act, 1872 makes it clear that our legal system does not insists of plurality of witnesses and, therefore, the credibility of a sole witness can outweigh the testimony of number of other witnesses of indifferent and hostile character. If the testimony of such a single witness is found by the Court to be wholly reliable, there is no legal impediment to the conviction of the accused on such proof. In the present case, this Court is required to weigh carefully the testimony of single witness PW1 Sunilkumar and if it is satisfied that evidence of this witness is reliable and free from all taints leading to suspicion, his version can be accepted and by confirming the conviction recorded by the trial Court, the appeal can be dismissed. That apart, in the case in hand, we will have to scrutinize evidence of PW1 Sunilkumarsole eye witness to the alleged incident carefully and minutely in order to judge whether he passes the test of reliability and trustworthiness for basing conviction in respect of major offence as he seems to be an interested witness. Let us, therefore, scrutinize his evidence in detail.10. It is in evidence of PW1 Sunilkumar that he as well as deceased Naresh Pandey were working in Machine Section / Room of M/s.V.P.Plastic Company. PW1 Sunilkumar has stated that he was working as a helper. His testimony is conspicuously silent about the capacity in which deceased Naresh Pandey was working in the Machine Section. However, his evidence goes to show that he used to work on a big machine in the Machine Section which is located in the middle whereas deceased Naresh Pandey was working on a small machine. PW1 Sunilkumar has not claimed that accused Vishvash Saptal who was Machine Operator, used to work in the same Machine Section / Room of M/s.V.P.Plastic Company. On the contrary, material elicited inof PW1 Sunilkumar goes to show that on 13th September, 2007, he was working on one out of the three big machine whereas deceased Naresh Pandey was working on one of the total seven machines in the Machine Section / Room. Evidence of PW1 Sunilkumar goes to show that out of total seven machines in that section, only two machines which were occupied by them were functioning and rest of the machines were not functioning. This goes to show that accused Vishvash Saptal was not working in Machine Section / Room on the day of the incident i.e. 13th September, 2007. At what place accused Vishvash Saptal was working on 13th September, 2007 is as aspect shrouded in mystery, as entire prosecution evidence does not show the exact place of work of accused Vishvash Saptal on that day of incident. Even evidence of alleged eye witnessPW1 Sunilkumar isconspicuously silent on thisis well settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution has chosen to treat him as a hostile witness andhim. Evidence of such witness cannot be treated as effaced or washed off from the record. Evidence of such witness can be accepted to the extent his version is found to be dependable on the careful scrutiny thereof. That part of evidence of such hostile witness which truthfully supports the prosecution case can be accepted. In the case in hand PW3 Vilash Sinde has deposed that on 13th September, 2007 he as well as PW1 Sunilkumar and deceased Naresh Pandey were present in the factory. As per version ofPW1 Sunilkumar and deceased Naresh Pandey were working in the Machine Working Room.PW3 Vilash Shindehas testified that at the time of incident he was at the neighbouring plant and after hearing shouts from the Machine Room within 2 or 4 minutes he reached the Machine Room. This witness further stated that he found Naresh Pandey lying on the floor with bleeding injuries and PW1 Sunilkumar as well as accused Vishvash were present in that Room at that time. Thereafter, this witness has not supported the prosecution case and he wasby the learned Additional Public Prosecutor. He was confronted with his police statement recorded under section 161 of the Code of Criminal Procedure, 1973 and contradiction from his former statement came to be marked as A during theOn due proof of the said contradiction through evidence ofPW8 Harilal Chouhan, PSI,It is thus clear that in order to seek corroboration to the version of the prosecution for convicting the appellant accused, the learned Sessions Judge has relied on duly proved contradictionbrought on record from the evidence ofe. Thisduly proved contradiction to the effect thatPW3 Vilash Shindehad seen the accused with wooden log in his hand andPW3 Vilash Shindehad snatched that wooden log from the accused and threw it, is virtually used it as substantive evidence by the learned Sessions Judge for recording conviction by using it as a piece of admissible evidence to corroborate the case of the prosecution against the appellant accused. It is well settled that though the contradiction is proved through the evidence of the Investigating Officer, that does not translate the contradiction into substantive evidence and can at the most impeach the credibility of the witness by throwing doubt on his version. Statement recorded under section 161 of the Code of Criminal Procedure, 1973 is not and cannot be treated as substantive evidence. It needs to be reiterated that duly proved contradictions can only make substantive evidence of such witness doubtful. Duly proved contradiction cannot be used for corroborating the evidence. Unfortunately, the learned trial Court committed an error on this aspect of appreciation of evidence and used the duly proved contradiction as a substantive peace of evidence for convicting the accused.It is thus clear that direct evidence as well as other evidence produced by the prosecution in support of the charge levelled against the accused is not at all reliable, cogent as well as trustworthy. In such situation, the motive, if any, with the accused to commit the crime in question becomes somewhat significant. True it is that normally there exists a motive for every crime and proof of its existence is not necessary for conviction but when direct evidence adduced by the prosecution cannot be said to be free from doubt, then, duly proved motive can be considered as a circumstance which is relevant for assessing the evidence. The motive is that which impels the accused to commit a crime. In the instance case, as per version of PW1 Sunilkumar, aftere, theSupervisor left the Machine Section after giving a warning to deceased Naresh Pandey, accused Vishvash came and after talking with deceased Naresh Pandey killed him by assaulting him. Evidence ofPW1 Sunilkumar isconspicuously silent about the subject of conversation between the deceased and the accused. Entire evidence of the prosecution does not reflect any motive with the accused to eliminate the deceased. As such, in the case in hand, motive is shrouded in mystery.27. Careful and meticulous reading of evidence of prosecution, thus indicates that evidence adduced by the prosecution is not of the standard required in a criminal trial for basing conviction. Upon meticulous examination of the evidence in this case, a reasonable doubt grows out that the accused might not have committed the offence in question. With certainty, we are not in a position to give a finding that the accused must have committed murder of deceased Naresh Pandey. It is a fundamental rule of criminal jurisprudence that before a conviction could be sustained, the prosecution has to establish that evidence on record unerringly points out that its case is free from all reasonable doubt. The accused cannot be convicted on the premises that case of the prosecution may be true. In the case in hand, evidence of PW1 Sunilkumar only indicates that the accused might have committed the crime in question but with all certainty, we are not unable to persuade ourself that it is the accused and the accused only who had murdered deceased Naresh Pandey. Thus, for the reasons stated in the foregoing paras, we are of the considered view that findings of the learned trial Court for inferring the guilt of the accused cannot be sustained. Onof evidence on record, we have recorded the compelling and substantial reasons for interfering with the impugned judgment and order of conviction. On reviewing the entire evidence of the prosecution, we are of the considered opinion that the accused is entitled to the benefit of doubt and as such, the impugned judgment and order of conviction and sentenced needs to be quashed and set aside.