Mere presence or absence of a large number of witnesses cannot be the basis of conviction : Supreme Court

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 590 OF 2015 …Appellant STATE OF M.P.had a brother who lived separately and the in laws would beat and harass her if she attempted to speak to the wife of the brother of the appellant herein. The endeavour of reconciliation took place when Kishore Kumar along with another brother Lochan had brought the deceased back to her matrimonial home. Even at that stage on being asked whether they wanted her to live with them the in laws responded that they will see for a few days and then decide. The deceased thereafter stayed back at her matrimonial home A postmortem was conducted on the body and FIR No.72 99 came to be registered at P.S. Bodla District Kawargha on 29.8.1999 arraying the appellant herein his father one Lalchand and mother one Ahiman Bai as accused for offences punishable under Sections 302 read with Section 34 of the Indian Penal Code 1860was that on the morning of the incident all the three accused had gone to the fields while only the deceased remained at home. Lalchand stated that after taking a bath in the pond when he returned he discovered the deceased lying dead in her cot. Thereafter he called the appellant herein and his wife Ahiman Bai who were still in the fields. No evidence was led in this regard. The prosecution led evidence of 9 witnesses to establish their case Five of these witnesses turned hostile PW 2brother of the deceased PW 3PW 4PW 5and PW 6was married to the brother of PW 2 The circumstantial evidence was examined closely as that could be the only basis of conviction and it was found that there was a complete chain to prove the guilt of the accused. The visit of the deceased to her maternal home her statement regarding the ill treatment by her in laws to her brother PW 1 her being taken to the matrimonial home by PW 1 along with another brother Lochan the discussion between PW 1 and Lalchand and finally the cause of death being homicidal were all circumstances examined to establish guilt of the accused. The Trial Court held that after the murder Lalchand sent his wife and the appellant herein to the fields while he himself went to the pond to bathe and when he returned to his house he raised a hue and cry pretending to be shocked by the sudden death of the deceased. There was a possibility of death being caused by strangulation by an article made of a chain like material but the same had likely been destroyed. The Trial Court did castigate the manner of prosecution The High Court in the given situation apart from relying on the testimony of PW 1 turned its attention to the postmortem report. In this context it was noted that there was blood oozing from both nostrils and mouth of the deceased there was swelling over the right cheek marks of ecchymosis at epiglottis region and back of the neck bruise present at left axillary of cheek and there was depression mark of a mala on the left side of the neck. It went on to state that since the incident had taken place inside the privacy of the house the onus was on the persons residing in the house to give an explanation. In such situations it was noted that it is difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. In this regard the High Court referred to Section 106 of the Indian Evidence Act 1872 which reads as under “106. Burden of proving fact especially within knowledge.— When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” It thus opined that in such cases while the initial burden to establish the case would be upon the prosecution it would be of a relatively light character. There would be a corresponding a burden on the inmates of the house to give cogent explanation as to how the crime was committed. They could not get away by keeping quiet and offering In the aforesaid contours of the factual situation we have examined the submissions of the learned counsels for the parties The submission of the learned counsel for the appellant herein was that the circumstantial evidence was not of such a nature that it could be said to be conclusive and the chain of evidence was not complete to pronounce the appellant herein guilty. The previous allegations of cruelty had not been proved as there was no prior complaint of harassment lodged by the deceased or her relatives and that the testimony of PW 1 is further discredited as he is the stepbrother and not the real brother of the deceased. It was further argued that the statements of the witnesses were not recorded prior to 29.8.1999 i.e. for five days from the date of incident and even the site plan prepared by PW 7 was not proved. There was stated to be no intention or motive attributable to the appellant herein to kill the deceased and the prosecution could not absolve itself of the burden to prove the case beyond reasonable doubt The testimony of PW 9 Dr. Bachkar was assailed as there was no formation of a firm opinion regarding the nature of death as it was mentioned that it “may” have been homicidal. There was stated to be a mark on the left side of the neck and but no such mark existed around the neck. He had stated that the mark could have been caused by pressing the necklace on the neck but asphyxia was not possible due to the same No recovery of necklace had taken place from the appellant herein and the weapon of crime was never recovered. Lastly it was contended that on the same evidence the mother of the appellant herein had been The appellant herein is stated to have served 16 years and 9 months of his sentence but some dispute was raised about the actual time he had spent in jail by learned counsel for the respondent State though it was conceded that cases for release were considered after 14 years of serving the actual sentence Learned counsel for the respondent State relied upon the absence of any explanation by the accused regarding the cause of death even though the death had occurred in the privacy of the matrimonial home The appellant herein and his family are stated to be the only residents where the body of the deceased was found and that itself cast a burden on them within the meaning of Section 106 of the Evidence Act In order to support the aforesaid proposition reliance was placed on the following judgments Amarsingh Munnasingh Suryawanshi v State of Maharashtra1: In this case the death had occurred in the matrimonial home but the conviction was supported by a dying declaration Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.2: Here the weapon of offence a gun was recovered from the room of the accused and the dead body was found on the terrace attached to the private room of the accused Trimukh Maroti Kirkan v. State of Maharashtra3: In this case the body of the deceased was found in the matrimonial home and the cause of death was strangulation though the defence pleaded it to be a case of a snakebite The aforesaid would thus show that the third case best fits the factual scenario in the present case Learned counsel for the State emphasised that the other witnesses turning hostile cannot be a ground itself to acquit the accused and the testimony of PW 1 was consistent and sufficient to convict the appellant herein. In this behalf a reference was made to Section 134 of the Evidence Act which reads as under 115 SCC 455 210 SCC 433 310 SCC 681 “134. Number of witnesses. No particular number of witnesses shall in any case be required for the proof of any fact.” It was thus contended that mere presence or absence of a large number of witnesses cannot be the basis of conviction. It is the quality of evidence and not the number of witnesses which is relevant. In this behalf a reference was made to the following cases Yanob Sheikh Alias Gagu v. State of West Bengal4 where it was observed as under “20. We must notice at this stage that it is not always the quantity but the quality of the prosecution evidence that weighs with the Court in determining the guilt of the accused or otherwise. The prosecution is under the responsibility of bringing its case beyond reasonable doubt and cannot escape that responsibility. In order to prove its case beyond reasonable doubt the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature. In the case of Namdeo v. State of Maharashtra14 SCC 150] the Court held as under “28. From the aforesaid discussion it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused Our legal system has always laid emphasis on value weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is therefore open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely it may acquit the accused in 46 SCC 428 spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness therefore has no force and must be negatived.” Gulam Sarbar v. State of Bihar3 SCC 401 preserve the close family ties which continued to exist by marriage in the instant case in view of the siblings of the deceased and appellant herein being married. In the Indian context there exists a continued relationship between two families wherein the daughter in law comes from another 22. We are conscious that the case of the prosecution rests only on the testimony of PW 1 and the medical evidence. The statement of PW 1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite. However that itself would not nullify the remaining part of his testimony. In fact the said witness did not back out from the statement but could not state the reason why the police did not record it in the FIR though it was mentioned The doctor opined the cause of death to be asphyxia due to strangulation. Thereafter he has stated that nature may be homicidal This was so stated because asphyxia being the cause of death the doctor himself could not have conclusively said whether it was homicidal or suicidal. It was also voluntarily opined that there had to be a minimum of five minutes of forceful pulling to cause the death In our view the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High Court also found that the location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable jewellery missing 25. We are confronted with a factual situation where the appellant herein as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime.6 The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation 26. We thus find no reason to interfere with the impugned judgment 6 Trimukh Maroti Kirkan v. State of Maharashtra (supra The appeal is accordingly dismissed leaving the parties to bear their own 27. We however direct the respondent State to examine whether the appellant herein has completed 14 years of actual sentence or not and if it is so his case should be examined within a maximum period of two months for release in accordance with norms. If not the exercise be undertaken within the same time on completion of 14 years of actual November 19 2020 Sanjay Kishan Kaul

Summary: The quality of witnesses should be the criteria under Section 134 of the Evidence Act, rather than the number of witnesses, considering how common it is for witnesses to turn hostile in a trial. This remarkable judgement was passed by the bench consisting of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy of the Supreme Court in the matter of Jayantilal Verma v State of MP, [CRIMINAL APPEAL NO. 590 of 2015].  After the death of a lady in her matrimonial house, her brother alleged that the husband had murdered his sister. The couple had been married for 8 years and the brother alleged that his sister had off late been complaining of being harassed at the hands of her in laws and husband. The post mortem reported suggested the death was caused due to asphyxiation owing to being strangled. Several witnesses turned hostile due to familial relations and the only reliable evidence remaining was the post mortem report and testimony of the doctor who conducted the post mortem and the husband himself. Earlier, the husband alleged that all members residing in the house were outside doing their work when the lady died. After going through the evidence, it was obvious that the marks on her neck and surrounding parts prove it was the case of strangulation. While giving his testimony, he added the fact that she died of a snakebite, which was also further completely negated by the post mortem report. 
The trial court convicted the husband while acquitting the mother in law. The father in law passed away during the trial. On the basis of the acquittal of the mother in law, the counsel for the appellant argued that his client was not proved guilty beyond reasonable doubt and challenged the decision of the Trial Court.
The high court on the key witnesses turning hostile opined, “We are conscious that the case of the prosecution rests only on the testimony of PW-1 and the medical evidence. The statement of PW-1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite. However, that itself would not nullify the remaining part of his testimony. In fact, the said witness did not back out from the statement, but could not state the reason why the police did not record it in the FIR though it was mentioned”. 
 Further, in light of the death taking place within the four walls of the matrimonial house, the court observed, “In our view, the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High Court also found that the location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing. 
We are confronted with a factual situation where the appellant  herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime. explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation”.
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 The trial court convicted the husband while acquitting the mother in law. The father in law passed away during the trial. On the basis of the acquittal of the mother in law, the counsel for the appellant argued that his client was not proved guilty beyond reasonable doubt and challenged the decision of the Trial Court. The high court on the key witnesses turning hostile opined, “We are conscious that the case of the prosecution rests only on the testimony of PW-1 and the medical evidence. The statement of PW-1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite. However, that itself would not nullify the remaining part of his testimony. In fact, the said witness did not back out from the statement, but could not state the reason why the police did not record it in the FIR though it was mentioned”.   Further, in light of the death taking place within the four walls of the matrimonial house, the court observed, “In our view, the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High Court also found that the location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing.  We are confronted with a factual situation where the appellant  herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime. explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation”.