Vithal Pundalik Zendge vs State Of Maharashtra

1. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court dismissing the three appeals preferred by the present

appellant and two other co-accused. Criminal Appeal No.703 of 2000 was

filed by the present appellant while the co-accused Kisan filed Criminal

Appeal No. 701 of 2000 and Milind Dhondu Gaikawad filed Criminal Appeal 702 of 2000. The accused persons faced trial for alleged

commission of offences punishable under Sections 144, 148, 302 read with

Section 149 of the Indian Penal Code, 1860 (in short the `IPC'). The

appellant faced trial alongwith 8 others. Appellant was first accused (A-1).

The trial Court held that all the accused persons were guilty and they were

awarded life sentence in respect of offence punishable under Section 302

read with Section 149 IPC and different other sentences which were

directed to run concurrently by the learned Sessions Judge, Greater Bombay

in Sessions Case No.248 of 1996. Only three appellants questioned the

conviction and the sentence and three appeals were disposed of by the

impugned judgment as noted above.

2. Prosecution version which led to the trial of the accused persons is

essentially as follows:

On 15.12.1995 at about 2330 hrs. complainant Sahida Shaikh (PW1)

was going to Sulabh Sauchalaya (Public Toilet) situated at Prabuddha Nagar

Hutments, Suweree, Wadala, Bombay-15. When she was passing near the

house of Subhash Kharkhare, she noticed Vitthai, Shiva, Krishna, Mohd.

Ali, Nitin, Milind and Sandeep standing near the heap of garbage near the

said Sulabh Sauchalaya. The B.M.C. street light and the lights of nearby

2 houses were sufficient for the purpose of identification. She also noticed

that Babu came out of the house of Subhash Khandale keeping his hands

around the shoulder of Yasin (hereinafter referred to as `deceased') and they

were talking and going towards the said Sauchalaya. She was at a short

distance. The said persons who were standing near the garbage heap, came

near the Yasin and Babu. Then Babu removed his hand from the shoulder of

Yasin and started abusing Yasin. Yasin objected to that. At that time Milind

caught right hand of Yasin, Sandeep caught left hand of Yasin, Nitin caught

head and hairs of Yasin from behind. Then Babu removed a sharp edged

weapon from under his pant and shirt and started giving blows on the

stomach of Yasin. Shiva, also took out sharp edged weapon which he was

hiding on his person and said "Maro Sale Ko", and gave blows with the said

weapon on the stomach and different parts on Yasin. Vitthal, Mohd. Ali

and Krishna also gave blows with the weapons in their hands. Yasin was

shouting "Ma Bachao, Bachao", then he went little ahead and fell down near

Diamond Electric Store. One taxi was coming from the direction of Hindu

Cemetery. Shiva, Vitthal, Babu, Krishna, Mohd. Ali sat in the said Taxi,

threatened the driver of the Taxi, Nitin got down from the taxi and said taxi

sped away towards the Jarbani Road. Nitin, Milond and Sandeep ran away

towards the Cemetery. Hearing her shouts, her husband Mohd. Naseem,

3 Subhash Khandare, Salim, Naresh and other persons came running there.

Salim and Naresh removed Yasin to the KEM Hospital. She also went to

the Hospital with her mother and came to know that Yasin had expired. EPR

Constable Vishwas B. Sarate (PW15) was on duty at KEM Hospital,

recorded the report of said incident which is at Exh.P-77 and passed on the

information to PC22794 who was on duty at RAK Marg Police Station. PSI

Chorge (PW12) who was Station House Officer on duty went to the KEM

Hospital, recorded the statement of complainant PW-1 obtained running

C.R. number which was 431/95, scribed the inquest report of Yasin which is

at Exh.P-22 [admitted under Section 294 of Code of Criminal Procedure,

1973 (in short the `Cr.P.C.')]. Thereafter, police party visited scene of

offence and scribed the spot panchanama which is Exh.P-32. After returning

to the Police Station, he treated the statement of Bahida as FIR, filled in the

proforma of FIR (Exh.P-16A) and proceeded with the further investigation.

At about 8.20 a.m. on 16.12.1995, police also filled in ADR form,

statements of Naresh, Salim and Amina. On 16.12.1995 the case was

marked to P I Palele for further investigation who recorded the statements of

(i) Kallu Verma, (ii) Kailash Bansode, (iii) Shankar Delare, (iv) Kishore

Solanki, (v) Moh. Nasim, (vi) Subhash Khandare, (vii) Mamud Bhatkar,

4

(viii) Aslam Mullu, (ix) Nagu Chatu, (x) Salim Shaikh (xi) Naresh, (xii)

Fakir Shaikh and (xiii) Amina Yusuf. On 16.12.1995 police arrested

accused No.6 Nitin Vasu Kadam and accused No.8 Sandeep Sahadev

Jaitpkar. On 17.12.1995, they arrested accused No.2 Shiva Yashvant

Tambe. Accused No.5 Mohammed Ali Ismail Aamadare, accused No.7

Milind Dhondu Gaikwad. On 29.12.1995, they arrested accused No. 1

Vitthal Pundalik Zondage, accused No.4 Vilas & Babu Bhagurao Shirke.

On 15.01.1996, police recovered Gupti- (Art. M-8) at the instance of

accused No.1 as per the panchanama Exh.P-42. On 16.01.1996, police

recovered dagger (Art.M-9) at the instance of accused No.3 Kisan

Pandurang Gavli as per the panchanama Exh.P-27. On 06.02.1996 police

sent all the muddamal articles to Chemical Analyst. Police received report

of muddemal articles which is at Exh.P-45.

On 12.2.1996 police charge sheeted all the accused before the learned

Metropolitan Magistrate 13th Court, Bombay as per charge sheet and on

26.2.1996 their case was committed to the Court of Sessions. Since accused

persons abjured guilt, trial was held.

5 The prosecution has examined 15 witnesses many of whom are stated

to be eye witnesses, except PW-1 who is the sister of the deceased, others

resiled from their statements made during investigation.

The trial Court after analyzing the evidence of PW-1 found her to be

a trustworthy witness and relied on her evidence and rejected the plea of the

accused persons that prosecution version cannot be accepted only on the

basis of PW-1's evidence.

Questioning their conviction appeals were filed before the High

Court and as noted above the High Court affirmed the conclusions of the

guilt and the sentences imposed.

3. In support of the appeal, primary stand of learned counsel for the

appellant was that even though the conviction is maintainable on the basis

of evidence of solitary witness that witness's version must be free from any

blemish. In the instant case, the evidence of PW-1 does not inspire

confidence. Primarily it was submitted that when there is a solitary

witness's evidence it would be unsafe to rest the conviction thereon.

6

4. Learned counsel for the State on the other hand supported the

judgments of the trial Court and the High Court.

5. The law relating to the approach of the courts when prosecution

version essentially rests on the testimony of a single witness has been

highlighted by this Court in many cases.

6. On a consideration of the relevant authorities and the provisions of

the Indian Evidence Act, 1872 (in short the `Evidence Act') the following

propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a

single witness though uncorroborated. One credible witness outweighs the

testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should

not insist on corroboration except in cases where the nature of the testimony

of the single witness itself requires as a rule of prudence, that

corroboration should be insisted upon, for example in the case of a child

witness, or of a witness whose evidence is that of an accomplice or of an

analogous character.

7 (3) Whether corroboration of the testimony of a single witness is

or is not necessary, must depend upon facts and circumstances of each case

and no general rule can be laid down in a matter like this and much depends

upon the judicial discretion of the Judge before whom the case comes.

7. Therefore, there is no hesitation in holding that the contention that in

a murder case the court should insist upon plurality of witnesses, is much

too broadly stated.

8. In Vadivelu Thevar v. The State of Madras (AIR 1957 SC 614) this

Court had gone into this controversy and divided the nature of witnesses in

three categories, namely, wholly reliable, wholly unreliable and lastly,

neither wholly reliable nor wholly unreliable. In the case of the first two

categories this Court said that they pose little difficulty but in the case of the

third category of witnesses, corroboration would be required. The relevant

portion is quoted as under:

`11. ... Hence, in our opinion, it is a sound and well-

established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

8 (2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. 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 category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.'

9. Vadivelu Thevar case (supra) was referred to with approval in Jagdish

Prasad v. State of M.P (AIR 1994 SC 1251). This Court held that as a

general rule the court can and may act on the testimony of a single witness

provided he is wholly reliable. There is no legal impediment in convicting a

person on the sole testimony of a single witness. That is the logic of Section

134 of the Indian Evidence Act, 1872 (in short `the Evidence Act'). But, if

there are doubts about the testimony the courts will insist on corroboration.

It is for the court to act upon the testimony of witnesses. It is not the

number, the quantity, but the quality that is material. The time-honoured

principle is that evidence has to be weighed and not counted. On this

principle stands the edifice of Section 134 of the Evidence Act. The test is

9 whether the evidence has a ring of truth, is cogent, credible and trustworthy,

or otherwise."

10. The position has been re-iterated in large number of cases. Reference

may be made to Joseph v. State of Kerala (2003 (1) SCC 465), Yakub

Ismailbhai Patel v. State of Gujarat (2004 (12) SCC 229) , Bhimapa

Chandappa Hosamani and Ors. v. State of Karnataka (2006 (11) SCC 323)

and Kunju @ Balachandran v. State of Tamil Nadu [2008(2)SCC 151].

11. Coming to the evidence of PW-1, the roles played by accused persons

have been elaborately described in detail. She has described the role played

by each of the accused persons. She has stated that she was at a distance of

about 12 ft from the place of occurrence. Interestingly, a suggestion in

cross examination was given that distance was about 20 ft. In other words,

her presence has been accepted. Since the accused persons were known to

her, a minute difference in the distance is really of no consequence.

12. She has deposed that she knew all the accused as they were the

residents of the same locality where she lived since her birth. On 15th

December, 1995 at about 11.30 p.m. when she went to attend the nature's

10 call near the public toilet, she saw accused No.4 with her brother, the

deceased. The accused No.4 had kept his hand on her brothers' shoulder and

they were going towards the toilet. They were talking loudly and accused

No.4 was abusing her brother. Then he started assaulting her brother with a

long weapon like gupti. All the other accused were standing near the

garbage bin. She was near the toilet. When accused No.4 was assaulting her

brother, all the other accused who were standing closeby came near her

brother. They all also caught him and assaulted him with weapons in their

hands. Accused Nos.7 and 8 caught his hands, accused No.6 caught him by

the hand, accused Nos.1, 2, 3 and 5 started assaulting him with weapons

in their hands which were like gupti. This is in essence prosecution case.

13. She has further deposed that she was at a distance of about 12 ft. from

the place of the incident. She stood there and watched the incident. At that

time the street lights were on and there were 2 lights on the spot. She as well

as her brother shouted "Bachao Bachao". Nobody came for help. Her

brother fell down and the assailants ran away. A taxi came and accused Nos.

1 to 4 fled in that taxi. She rushed to R.A.K. Marg Police Station which was

at a 5 minutes walking distance to meet the officer in charge. Her mother

also came to the police station. The police officer went to KEM Hospital.

11 She returned to the spot and found that her brother was not there. She learnt

that he was removed to KEM hospital and she also went to the hospital. Her

brother had died. The police recorded her statement in the hospital. That

was treated as the FIR, marked Exhibit-16.

14. In spite of incisive cross examination a few contradictions of very

minor nature have been elicited. They are not sufficient to throw out her

evidence. Such discrepancies have been rightly held by the trial Court and

the High Court to be of no consequence as she has been a witness of ghastly

crime when in front of her, her brother was brutally murdered.

15. Above being the position we find no merit in this appeal which is

accordingly dismissed.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 19, 2008

12