A fact is said not to be proved when it is neither proved nor disproved: Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 423 OF 2000 1. Sheetal Anil Berlekar Age :19 years 2. Babasaheb Gangaram Daingade Age: 31 years Both r at 1248. ‘C’ Ward The State of Maharashtra Mr. Niranjan Mundargi a w. Ms. Keral Mehta for the appellants. Mr. Arfan Sait APP for the State. CORAM : SMT. SADHANA S. JADHAV PRITHVIRAJ K. CHAVAN JJ RESERVED ON : OCTOBER 1 2021 PRONOUNCED ON : FEBRUARY 9 2022 JUDGMENT : but he was unable to say as to whether the said bloodstained slab was inside the booth or outside except the table He had not noticed bloodstain on any other spot inside the STD booth. In the very next breath it is stated that there were no bloodstaines outside the STD booth when he visited. The scene of offence there were about 1000 to 1500 people gathered outside the shop. He had need no contents to apprehend the accused in the The accused no.1 was brought by police constable and produced before PW.17.No arrest panchnama was prepared. No enquiry was made by the investigating officer as to whether any fake call was received at the STD booth soon before the incident. The accused have examined three defence witnesses to substantiate that the case has narrated by the witnesses is not truthful DW.1 Prakash Chavan happens to be the sub engineer at M.S.E.B. Urban Division Kolhapur and was posted at Central Sub Division and the area of ‘C’ ward Raviwar Peth Kolhapur comes under the Central Sub division of M.S.E.B. According to him in the 1 eventuality that the street lights in any particular area are not working and the name given to that effect was given by the municipal corporation on very next day in writing and the same was recorded in a register title as ‘street light fault’. The witness has produced the original register before the Court. Attention of the Court is drawn to the entry dated 09.08.1999 in respect of ‘C’ ward in Raviwar Peth. The said entry would indicate that the work of maintenance was going on the transformation for ‘C’ ward. The report which is at ‘Exhibit 65’ shows that the intimation was given to M.S.E.B. that on 09.08.1999 the street lights in Bhau Galli are not DW.2 Shrikant Dange claims to be in the company of accused no.2 in the office of the political party Shivsena between 6.00 to 6.30p.m. after hearing he alongwith his friend had rushed to the house of PW.1. There were no street lights on the northern side road situated in front of house of PW.1 and the accused no.2 had accompanied him to the scene of offence. They visited the library in the office of the political party everyday. They read the newspaper in the said library The mother of accused no.1 is also examined as the defence witness. According to her on the day of incident she returned from the market at about 7.30p.m. She saw her daughter disturbed. Upon inquiry Megha had divulged to her that she was being stalked by a boy just across the road and therefore she had no desire to go to the college. Since DW.3 was acquainted with father of 1 the said boy she went to the house of PW.1 at about 7.30 to 8.00p.m. The street lights were not functional. After exchanging greetings she informed PW.1 and his wife that her daughter had shifted to Kolhapur since she desired to pursue a course in Cyber College. She disclosed to them that their son was stalking her daughter and that they should warn their son. PW.1 had assured that they would warn him. At that time the son of PW.1 had entered the house with a hand on his chest and fell down in front of his door. He had sustained bleeding injury on his chest. PW.1 enquired with him as to the cause of injury. There was no answer. PW.1 then lifted the said boy and took him to hospital. She was acquainted with PW.1 since childhood but had not visited his house since she was married and therefore she had no hesitation in visiting the house of PW.1 and disclosing about the behaviour of his son The learned counsel for the appellant has vehemently submitted that although according to the prosecution the case rests on direct evidence in the nature of testimony of the eye witnesses. It would be necessary to see as to whether the testimony of eye witnesses is truthful to inspire confidence of the Court. The learned counsel has drawn our attention to various lacunaes in the prosecution case. The first and foremost submission is that the topography of the scene of offence as suggested by the defence has been admitted by PW.1 as PW.1 claims to be chatting with Manoj Kavale at the door step of the STD booth when actual incident occurred. However the prosecution has not examined Manoj Kavale That no one had attempted to chase the accused. Moreover PW.1 1 has not disclosed about the incident to his elder son also nay any It is further submitted that evidence of PW.5 is not trustworthy. He claims to be an eye witness who was in fact standing next to the Tarun Mandal. However it is admitted in the cross examination that the Tarun Mandal is actually situated opposite Gurav Trading Company and Shivprasad Trading Company. PW.5 has stated that accused was armed with a weapon while entering the shop. He has seen the incident of assault which took place inside the booth but had not seen PW.1 standing outside the booth. Similarly PW.6 also claims to be present on the staircase of Ravi Bank. He had not noticed anyone near the STD booth but has seen the actual incident of assault. It is admitted that the activities in the STD booth are not visible from the staircase of the bank. PW.7 appears to be got up witness since it is admitted by her that Shiv prasad Trading Company is situated between the STD booth and Gurav Trading Company and she is the owner of the shops. Hence according to learned counsel the accused deserve to be acquitted Per contra learned APP has vehemently supported the conviction and sentence awarded by the Sessions Court and has submitted that it is a case of direct evidence and the witnesses are natural witnesses. According to the learned APP apart from the independent eye witnesses PW.1 Parasram Khade the father of the deceased happens to be an natural witness. His presence just outside the booth cannot be doubted for any reason whatsoever. He had also 1 heard his son refusing to meet the caller at hotel Suzuki. He had identified the voice of the caller. The motive for commission of the offence is also established. Hence no interference is called for With the help of learned counsel for the appellant and the learned APP we have perused the records and proceedings Upon meticulous appreciation of the evidence of the eye witnesses what flows from the testimony adduced by the prosecution is as follows: PW.1 is the father of the deceased. He is the owner of the STD booth as well as Gurav Trading Company and Shiv prasad Trading Company He is the landlord of shop premises i.e. Gurav Trading Company and Shiv prasad Trading Company. He has failed to establish that he was standing just outside the STD booth chatting with Manoj Kavale when the incident In fact there was hardly any prelude to the incident except the exhortation by accused no.2. That even after the first blow was given the injured had neither raised a cry nor moved from the chair PW.1 had requested them not to assault his son and that the incident had taken place within fraction of second since no prelude is brought before the Court 1 v) The evidence of PW.1 has been refuted by PW.5 and PW.6 who have stated that by the time they reached in front of the STD booth Sachin was lying on the platform Pedestal) of the shop at a distance of 2 feet from there It is not the case of PW.5 and PW.6 that they had helped PW.1 to get the injured outside the shop The scene of offence panchnama also does not indicate that the injured who had sustained profused bleeding was dragged outside the STD booth. There is no splash of blood in the STD booth and similarly there were no bloodstains outside the STD booth when he visited the scene of offence PW.17 has admitted that there were bloodstains on the floor but was unable to state as to whether the said slab of floor was inside the STD booth or outside except the table. He has admitted that there were no bloodstains on any other spot inside the STD booth. Except on the table whereas it is the case of PW.1 that Sachin was assaulted while he was seated in his chair PW.1 has denied that the words S.T.D. are inscribed on the glass door with paint. However the said inscription is recorded in the scene of offence panchnama and has also been corroborated by all witnesses. There is a staircase adjacent to the STD booth which leads to the house of the complainant PW.1. This aspect would show that by the time the complainant had descended the 1 steps the injured had fallen outside the booth and therefore there is an elaborate cross examination on the fact that no bloodstain are found on the clothes of either PW.1 PW.5 or PW.6 who had carried the injured to the hospital. PW.1 had not disclosed about the incident to the people who were present at the time of incident. The fact that he was chatting with Manoj Kavale is in the nature of omission. There is an inherent inconsistency in the evidence of PW.5 as he has stated that he had not seen any other person near the STD booth but had seen Sachin in the booth sitting all alone According to PW.1 the incident had occurred inside the booth It is the specific case of the witnesses that accused no.2 has exhorted from outside whereas accused no.1 had assaulted the deceased inside the booth. It is stated that after being assaulted Sachin came out of the STD booth and after he came out PW.1 had caught hold of him. At the same time it is also stated that by the time they reached the booth Sachin was lying outside The testimony of PW.6 would show that PW.5 and PW.6 were seated on the staircase of Ravi Bank. It is admitted by PW.5 that any activity in the STD booth is not visible from the staircase of There is no question of PW.7 seeing the incident of assault as Gurav Trading Company is in the same direction as that of the STD booth. Shiv prasad Trading Company and the staircase 2 leading to the house of the complainant are adjacent It is not the quantity of witnesses whose evidence is required for recording the conviction but it is the quality of the testimony which matter. Conviction can also been recorded on the basis of the sole testimony of one eye witness provided that it is of a It is no doubt true that there is only one eye witness who is also a close relative of the deceased viz. his father. But it is well settled that it is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding the culpability of the accused and the emphasis of Courts is always on quality of evidence The Apex Court in the case of ‘Bhimapa Chandappa Hosamani and Ors. Vs. State of Karnataka’1 has held as follows : “We have undertaken a very close and critical scrutiny of the evidence of PW 1 and the other evidence on record only with a view to assess whether the evidence of PW 1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the 2006) 11 SCC 323 2 Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion must impress the Court as wholly truthful must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness”. The evidence of one witness need not be corroborate with other witnesses but at the same time the testimony must be in consonance with time place and actual incident of assault Possibility that the said witness was infact able to see the actual incident of assault must be established beyond reasonable doubt. In the present case the accused have examined defence witnesses. The mother of accused no.1 has also been examined as a defence witness. She has categorically stated that when she was in conversation with PW.1 in the house his son had entered the house with the injury on his chest and fallen down in front of his door It is settled principle that the evidence of the defence witnesses need to be weighed in the same scale as that of the prosecution witnesses and the same cannot be brushed aside only because the said witnesses are interested witnesses The Apex Court in the case of ‘Dudh Nath Pandey vs. The State of U.P.’2 has held as follows : 1981SCC 166 2 “We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional instinctive disbelief in defence witnesses Quite often they tell lies but so do the prosecution The Apex Court in the case of ‘Munshi Prasad and Ors vs. State of Bihar’3 has held as follows : Before drawing the curtain on this score however we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses arc entitled to equal respect and treatment as that of the prosecution The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of" the a lapse on the part of the defence witness cannot be differentiated and be treated differently than that of the prosecutors witnesses. In view of this the evidence of DW.3 cannot be brushed aside. This has to be decided in the background the evidence of PW.1 the sister of accused no.1 was insisting upon the deceased to marry her has no basis. PW.1 has also stated that it was not possible to develop the love affair within just two weeks since the sister of accused no.1 had started residing in the said locality just two weeks before the incident 2002SCC 351 2 PW.1 has stated that Sachin used to leave for his work at about 8.00 a.m. whereas Megha used to visit the STD booth in between 9.00 to 9.30 a.m. and he had no knowledge about the name or identity of the person or the principle of which she made calls between 9.00 to 9.30 a.m As against this it is the case of the defence witnesses that the deceased used to stalk her daughter and therefore the life of her daughter had become so miserable. That she did not wish to attend her college The topography of the incident and the location of the STD booth vis a vis the location of eye witnesses at the relevant time belies prosecution case that they could have been eye witnesses to the actual incident of assault Section 3 of the Indian Evidence Act defines proof. The evidence would fall into three categories “PROVED” “DISPROVED” and “NOT PROVED”. A fact is said to be disproved when after considering the matters before it the Court either believes that it does not exist or considers its non existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it does not exist and fact is said to be ‘proved’ when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case 2 to act upon the supposition that it exists. A fact is said not to be proved when it is neither proved nor disproved According to us the present case falls under the category of “NOT PROVED”. Hence in view of the above discussions the accused are entitled to benefit of doubt The appeal is allowed The conviction of the appellants for the offences punishable under sections 302 read with 34 of Indian Penal Code and under section 135 of Bombay Police Act passed by 5th Additional Sessions Judge Kolhapur vide judgment and order dated 12th May 2000 in Sessions Case No. 1699 is hereby quashed and set aside The Accused appellants stand acquitted of all the charges levelled against them Their bail bonds stand cancelled Fine amount if paid be refunded to the accused appellants as per rules The appeal is disposed of accordingly (SMT. SADHANA S. JADHAV J 2

Summary: A fact is said not to be proved when it is neither proved nor disproved, this was upheld in the recent case of Sheetal Anil Berlekar v. Babasaheb Gangaram Daingade [CRIMINAL APPEAL NO. 423 OF 2000], listed in the Bombay High Court, Criminal Appellate Jurisdiction. The judgement was pronounced on February 9h 2022, and the said proceedings were presided by a coram comprising of Justice SMT. Sadhana S. Jadhav &amp; Justice Prithviraj K. Chavan. The facts, as presented before the court of law, are as follows. The accused no.1 had started residing with the accused no.2. He was accompanied by his parents and sister Megha. It was alleged that Megha used to visit the telephone booth of the complainant for making telephone calls. The complainant and his wife had overheard the said conversation between Sachin and Megha on their intercom. Sachin was present in the STD booth when he received a call from the accused no.1 calling Sachin near a Hotel. The said invitation by accused no.1 was followed by a threat that Sachin would face dire consequences upon failure to come near the Hotel. It is alleged in the First Information Report lodged by the complainant that both the accused came near the STD booth and upon being exhorted by accused no.2, accused no.1 had assaulted Sachin with a dagger on his chest and head. The injured was taken to the hospital and was declared dead on arrival. While the case being heard, many landmark judgments of Bhimapa Chandappa Hosamani and Ors. Vs. State of Karnataka [(2006) 11 SCC 323], Dudh Nath Pandey vs. The State of U.P. [1981 (2) SCC 166], Munshi Prasad and Ors. vs. State of Bihar [2002 (1) SCC 351] were quoted in order to put emphasize on the pertinent case. Court, after hearing both the sides, analysing facts, and considering a perusal of all evidences, held that: “The evidence would fall into three categories “PROVED”, “DISPROVED” and “NOT PROVED”. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist and fact is said to be ‘proved’ when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said not to be proved when it is neither proved nor disproved.” In addition to the above, the court related the case with the principle and held that “the Accused/appellants stand acquitted of all the charges levelled against them.”  Judgment reviewed by Pranav Sharma