Bombay High Court
Vishvash Machhinder Saptal vs The State Of Maharashtra on 6 May, 2016
Bench: Naresh H. Patil
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sas
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.278 OF 2010
Vishvash Machhinder Saptal,
Age: 31 years, R/o. Village Vasvadh,
Taluka Sangola, District Solapur. ..Appellant.
V/s.
The State of Union Territory
through Daman Police Station. ..Respondent.
Mr.C.M.Kothari for the appellant.
Mrs.P.H.Kantharia, PP with Mrs.Sangeeta Shinde, APP for the
respondent-Union Territory of Daman.
CORAM : NARESH H.PATIL AND A.M.BADAR, JJ.
RESERVED ON : 31ST MARCH, 2016
PRONOUNCED ON : 6TH MAY, 2016
JUDGMENT (PER A.M.BADAR, J.)
1. This is an appeal by the appellant / accused, who is
convicted for an offence punishable under section 302 of the
Indian Penal Code, 1860 and sentenced to suffer Rigorous
Imprisonment for life and to pay a fine of Rs.5,000/- in default
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to suffer Rigorous Imprisonment for a period of one month for
challenging the said judgment and order dated 30 th July 2009
passed by the learned Sessions Judge, Daman in Sessions
Case No.10/2007.
2. Shorn of unnecessary details, facts leading to the
prosecution of the appellant / accused are thus :-
(a) On the day of incident i.e. on 13th September, 2007,
accused Vishvash Machhinder Saptal, deceased Naresh
Ramashrey Pandey, Sunilkumar Shyamlal Sahoo (PW1), Vilash
Babushaeb Shinde (PW3), Meena Patel (PW4) and Shantaben
Dhawal (PW5) were working with M/s.V.P.Plastic Company
situated at Kachigam, Nani Daman. PW3 Vilash Shinde was
the Supervisor, PW1 Sunilkumar Sahoo was the helper,
accused Vishvash Saptal was Machine Operator, whereas PW4
Meena Patil and PW5 Shantaben Dhawal used to do work in
Finishing Section of the said company.
(b) According to the prosecution case, the incident
occurred in the Machine Room of M/s.V.P.Plastic company at
about 10.30 a.m. on 13th September, 2007. PW1 Sunilkumar
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and Naresh Pandey (since deceased) were working on the
machines in the Machine Room. According to the prosecution
case, PW3 Vilash Shinde, Supervisor came and told the Naresh
Pandey (since deceased) that he is not giving good
production, he should give quality production, else he would
be removed. Thereafter, accused Vishvash Saptal came and
started talking with Naresh Pandey. Then, accused Vishvash
Saptal started assaulting Naresh Pandey with a wooden log.
Naresh Pandey (since deceased) started shouting "Jai Shri
Ram". Hearing the shouts, PW3 Vilash Shinde reached the
spot of incident and tried to separate the accused from Naresh
Pandey. Due to successive blows on his head and face, Naresh
Pandey (since deceased) fell down with bleeding injuries.
Hearing the shouts of Naresh Pandey (since deceased), PW1
Sunilkumar who was working in the same Machine Room also
rushed to the spot to witness the incident. He had pressed the
wounds on head of Naresh Pandey by his palms and thereafter
rushed to the place of residence of Naresh Pandey, situated
outside the company premises for informing the incident to
Santosh Pandey (PW2) - brother of deceased Naresh Pandey.
Thereafter, Santosh Pandey and others came to the spot of
incident. Injured Naresh Pandey was then taken to Janseva
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Hospital, Vapi where he was declared dead. By that time, PW3
Vilash Shinde brought police to the spot of the incident. After
Naresh Pandey was declared dead, his brother Santosh
Pandey (PW2) lodged report to police on 13 th September, 2007
itself which has resulted in registration of crime No.28/007 at
Nani Daman Police Station.
(c) On registration of the crime, wheels of
investigation started moving. The spot was inspected by
police in presence of panchas and spot panchanama was
drawn. Wooden log, blood stained cement and control
sample of cement came to be seized. Inquest notes were
taken and dead body of Naresh Pandey was sent for autopsy.
Statements of witnesses came to be recorded. On 16 th
September, 2007 the accused was arrested. Clothes of
deceased Naresh Pandey came to be seized. Sample of blood
of accused was collected. Seized articles were sent to the
Chemical Analyser and on completion of investigation, charge-
sheet for an offence punishable under section 302 of the
Indian Penal Code came to be filed in the Court in the Court of
the Judicial Magistrate First Class.
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(d) On committal of the case, the trial for an offence
punishable under section 302 of the Indian Penal Code
commenced and in order to bring home the guilt to the
accused, the prosecution has examined in all eight witnesses
in support of the charge for the offence punishable under
section 302 of the Indian Penal Code levelled against the
accused. They are:-
(i) PW1 Sunilkumar Shaymlal Sahoo, the helper working
in the Machine Room and sole supporting eye witness
to the alleged incident;
(ii) PW2 Santosh Ramashray Pandey - the informant, who
is the brother of the deceased;
(iii) PW3 Vilash Babusaheb Shinde, Supervisor who had
also allegedly witnessed the incident in the midst of
its happening;
(iv) PW4 Meena Suresh Patel, employed in the Finishing
Section of M/s.V.P.Plastic Company who reached the
spot immediately after the incident from the Finishing
Section;
(v) PW5 Shantaben Gokul Dhawal, employed in the
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Finishing Section of M/s.V.P. Plastic Company, who
allegedly reached the spot soon after the incident;
(vi) PW5 Dr.Sudharshan Chandravanshi Thakur, Autopsy
Surgeon;
(vii) PW7 Arun Brijbihari Shukla, panch witness of the spot
panchanama; and
(viii) Harilal Jasabhai Chavan, P.S.I., the Investigating
Officer.
(e) After recording evidence of the prosecution as well
as upon examination of the accused under section 313 of
Code of Criminal Procedure, 1973 and upon hearing the
learned Public Prosecutor as well as the learned defence
counsel, by the impugned judgment and order the learned
Sessions Judge came to the conclusion that on 13 th
September, 2007 at M/s.V.P.Plastic Company, Kachigam, the
accused committed murder of deceased Naresh Pandey by
assaulting him by means of wooden log on head. Accordingly,
he was convicted and sentenced, as stated in the opening
para of this judgment.
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3. Heard Mr.Kothari, the learned counsel appearing for
the appellant / accused. By taking us through the evidence of
sole supporting eye witness PW1 Sunilkumar, the learned
counsel for the appellant argued that evidence of this sole eye
witness is as cryptic as it can be. Learned counsel for the
appellant argued that this witness has not at all seen the
assailant and he has not specified as to what was the work
done by the accused and where was his place of work.
Learned counsel Mr.Kothari further argued that the vague
evidence of PW1 Sunilkumar does not show from where the
accused came and why the accused assaulted the deceased.
Evidence of PW1 Sunilkumar goes to show that merely upon
hearing shouts, he has pointed out accusing finger at the
accused as the place where the incident has happened was
not visible from the spot where this witness PW1 Sunilkumar
was working. Learned counsel further argued that conduct of
PW1 Sunilkumar in not intervening in the alleged assault and
not shouting for help is totally unnatural. This witness was
from the native place of the deceased and was having close
relations with the deceased as well as his brother PW2
Santosh. Learned counsel for the appellant further argued that
no motive is attributed to the appellant / accused. There is
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delay in recording the statement of PW1 Sunilkumar by the
Investigating Officer which makes the prosecution case
doubtful. According to the learned counsel for the appellant,
non seizure of clothes of PW1 Sunilkumar makes the
prosecution case doubtful and this was not done as PW1
Sunilkumar is not an eye witness to the incident. Learned
counsel for the appellant further argued that except the
interested version of PW1 Sunilkumar, there is no evidence
against the accused. In the submission of the learned counsel
for the appellant, there are numerous discrepancies in the
evidence of PW1 Sunilkumar including falsity in identification
of clothes and, therefore, his interested version cannot be
accepted. Learned counsel for the appellant placed reliance on
Jhaptu Ram V/s. State of
Himachal Pradresh, Balbir V/s. Vazir and others and
Thammu Panduranga Rao and Another V/s. State of
Andhra Pradesh for making alternate submission that there
is no evidence to show that the accused had any intention to
commit murder of Naresh Pandey and, therefore, even if it
assumed that the accused assaulted the deceased, the
offence would fall at the most under Part II of the Section 304
1 (2014) (12) SCC 410
2 2014(12) SCC 670
3 (2013) 15 SCC 325
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of the Indian Penal Code.
4. As against this, Ms.Kantharia, the learned Additional
Public Prosecutor appearing for the respondent-state
vehemently argued that accused Naresh Pandey and PW1
Sunilkumar were working at the same place where the
incident had happened. By pointing out the statement of the
accused recorded under section 313 of the Code of Criminal
Procedure, 1973, the learned Prosecutor further argued that
presence of accused on the scene of occurrence is well
established and evidence of other witnesses recorded by the
prosecution also establishes presence of the accused on the
spot. By drawing our attention to the scene of occurrence, the
learned Prosecutor pointed out that PW1 Sunilkumar and the
deceased were working in the same machine room and the
incident happened well within the sight of PW1 Sunilkumar
and, therefore, his testimony needs to be accepted. Learned
Prosecutor further argued that evidence of autopsy surgeon
goes to show that atleast 3 to 4 blows were given on head as
well as face of the deceased by the accused and, therefore,
the prosecution has established the guilt of the accused for
the offence punishable under section 302 of the Indian Penal
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Code, 1973.
5. With the assistance of the learned counsel
appearing for the parties, we have carefully gone through the
record and proceedings. We have minutely perused the
evidence adduced by the prosecution in support of the charge
levelled against the accused.
6. At the outset, let us examine whether Naresh
Ramashray Pandey died a homicidal death on 13 th September,
2007. It is in evidence of PW2 Santosh Pandey - brother of
deceased Naresh Pandey, that upon being informed by PW1
Sunilkumar, he along with others rushed to M/s.V.P. Plastic
Company and found his brother Naresh Pandey lying on the
floor of the Machine Section / Room with bleeding injuries.
His evidence further shows that Naresh Pandey was then
taken to Janseva Hospital, Vapi where he was declared dead
Evidence of PW8 Harilal Chouhan also shows that Naresh
Ramashray Pandey was declared dead at Janseva Hospital,
Vapi. Dead body of Naresh Pandey was then shifted to the
Government Hospital, Marwar, Nani Daman where PW8 Hiralal
Chouhan took inquest notes (Exhibit-8). This admitted
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document shows that there were injuries on the head and face
of deceased Naresh Pandey. As seen from evidence PW8
Harilal Chouhan and PW6 Dr.Sudarshan Thakur, post mortem
examination on the dead body of Naresh Pandey was
conducted on 14th September, 2007. Post mortem report is at
Exhibit-16. Evidence of PW6 Dr.Sudarshan Thakur shows that
apart from other injuries on head and face, deceased Naresh
Pandey had also suffered fracture injuries to his skull.
Evidence of this autopsy surgeon shows that Naresh Pandey
died because of terminal cardio respiratory failure due to
harmorrhagic shock with fracture of skull with open head
injury. Evidence of this autopsy surgeon is fully corroborated
by post mortem report Exhibit-16 which is a document not
disputed by the accused. As seen from evidence of PW6
Dr.Sudarshan Thakur, injury No.5 i.e. fracture of skull is
sufficient in the ordinary course of nature to cause death of a
human being. Considering this unimpeachable evidence, it
needs to be put on record that the prosecution has proved
that Naresh Ramasharay Pandey died a homicidal death on
13th September, 2007.
7. Now, let us examine whether the prosecution has
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proved that it was the accused who had caused the homicidal
death of Naresh Pandey by intentionally and knowingly
assaulting said Naresh Pandey for committing his murder.
Undisputedly, PW1 Sunilkumar and deceased Naresh Pandey
were working in Machine Section / Room at the time of the
incident in question. PW3 Vilash Shinde was working as
Supervisor in the said M/s. V.P. Plastic Company. It is not in
dispute that on 13th September, 2007 i.e. on the day of
incident, PW1 Sunilkumar, deceased Naresh Pandey, accused
Vishvash Saptal and PW3 Vilash Shinde were on duty. Keeping
in mind these undisputed facts, which are also reflected from
the statement of the accused under section 313 of the Code of
Criminal Procedure, 1973, let us further peruse the evidence
on record in order to determine whether evidence of the
prosecution establishes the guilt of the appellant / accused for
the charge levelled against him.
8. At the outset, it needs to be mentioned here that
though PW3 Vilash Shinde is 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
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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
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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 Sunilkumar - sole 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
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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 in cross-examination of 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 13 th 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 witness PW1 Sunilkumar is conspicuously silent on
this aspect.
11. Now, let us see what PW1 Sunilkumar states about
the alleged incident. As per his version, on the day of incident
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he as well as deceased Naresh Pandey were working in the
Machine Section. Big machine was being operated by him,
whereas deceased Naresh Pandey was operating small
machine. PW1 Sunilkumar further testified that when the work
was going on, PW3 Vilash Shinde, Supervisor came and told
Naresh Pandey (since deceased) that he is not giving good
production and, therefore, he would be removed. PW1
Sunilkumar further deposed that PW3 Vilash Shinde told
Naresh Pandey (deceased) to change the trend and give
quality production. Evidence of PW1 Sunilkumar goes to show
that then PW3 Vilash Shinde, Supervisor left the spot and went
to the Finishing Room. Thereafter, as claimed by PW1
Sunilkumar, accused Vishvash Saptal came and started talking
to Naresh Pandey. According to version of PW1 Sunilkumar, he
was working at a distance of 15 to 20 ft. away from Naresh
Pandey. PW1 Sunilkumar further deposed he heard sound of
assault and therefore, stood up on the spot to see accused
Vishvash Saptal assaulting Naresh Pandey with a wooden log.
As per version of PW1 Sunilkumar, then, PW3 Vilash Shinde,
Supervisor reached to the spot and tried to separate the
accused. PW1 Sunilkumar claimed that he also went to the
place of assault and saw Naresh Pandey collapsed near the
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machine with bleeding injuries to his head and face. PW1
Sunilkumar further testified that he pressed the wounds of
Naresh Pandey and thereafter left for residential room of
Naresh Pandey which was situated outside the company. He
then brought Santosh (PW2) - brother of the deceased and
others to the place of incident and then Naresh Pandey was
shifted to the hospital.
12. While in the witness box, PW1 Sunilkumar was
shown the seized articles. Upon inspecting Article 3A maroon
shirt and 3B full pant, 3C waist belt and 3D Baniyan which was
stained with blood, PW1 Sunilkumar identified Article 3A shirt
and Article 3B full pant as clothes of accused Vishvash Saptal,
worn by him at the time of the incident in question.
13. With this version of PW1 Sunilkumar on record, let
us examine its intrinsic worth in order to ascertain its
trustworthiness. The defence of the accused is that PW3 Vilash
Shinde, Supervisor had gone to PW1 Sunilkumar and Naresh
Pandey to tell them both that they both would be removed
from the services as they were not giving quality output and,
therefore, out of anger, PW1 Sunilkumar picked up a wooden
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log and assaulted Naresh Pandey causing his death. It is the
defence of the accused that he is falsely implicated in the
crime in question by PW1 Sunilkumar.
14. Ordinarily a witness cannot be expected to recall all
minute details of the events which took place in rapid
succession in a short span of time. However, in the case in
hand, as claimed by PW.1 Sunilkumar, he and deceased
Naresh Pandey were the only occupants of Machine Section /
Room where they were working on different machines at the
time of the incident. PW.1 Sunilkumar as such had ample
opportunity to see deceased Naresh Pandey on that day. In
normal course, during the course of his duty hours starting
from 8.00 a.m., PW1 Sunilkumar must have seen the clothes
worn by deceased Naresh Pandey on the day of the incident.
When the seized articles were shown to this witness, PW.1
Sunilkumar has identified articles 3A and 3B i.e. shirt and full
pant as clothes of accused Vishvash worn at the time of the
incident. In fact, as seen from the evidence of Investigating
Officer PW8 Harilal Chouhan, PSI, clothes of the accused were
never seized but what was seized were the clothes of
deceased Naresh Pandey which the Investigating Officer has
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received in sealed condition from the hospital. Evidence of
PW8 Harilal Chouhan makes it clear that article 3A and 3B I.e.
shirt and full pant are the clothes of deceased Naresh Pandey.
Even autopsy surgeon PW6 Dr.Sudarshan Thakur has deposed
to that effect and identified articles 3A to 3C as clothes of
deceased Naresh Pandey. Describing the clothes of the
deceased as clothes worn by the accused at the time of
incident, casts a shadow of doubt on version of PW.1
Sunilkumar. This evidence of identification of clothes by PW.1
Sunilkumar raises a lurking doubt in the mind that PW.1
Sunilkumar might not have witnessed the alleged incident of
assault and, therefore, he is not able to identify correctly the
seized clothes shown to him while in the witness box. True it
is that the maxim 'falsus in uno falsus in omibus' has not
received general acceptance and status as a rule of law but in
the case in hand, evidence of PW1 Sunilkumar appears to be
untrue on a material particular. Let us, therefore, further
examine evidence of prosecution in detail and ascertain
whether other part of evidence of PW1 Sunilkumar can be said
to be truthful and trustworthy.
15. It is seen from evidence of PW.1 Sunilkumar that he
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pressed wounds of deceased Naresh Pandey with his palm and
his palm was stained with blood of the deceased. Evidence of
PW2 Santosh Pandey, brother of the deceased, shows that he
reached the spot of incident after disclosure of the incident to
him by PW.1 Sunilkumar. Evidence of PW2 Santosh Pandey
goes to show that he found his brother lying on the floor with
bleeding injuries and thereafter, he himself, PW.1 Sunilkumar
and Jai Thakur lifted deceased Naresh Pandey and put him in
an autorickshaw. It is thus seen from the prosecution evidence
that deceased Naresh Pandey was handled by PW.1
Sunilkumar atleast on two occasions. Evidence of PW.6
Sudarshan Thakur, so also the inquest panchanama show that
there was profuse bleeding from the head and face of
deceased Naresh Pandey. The spot panchanama at Exhibit-20
shows that blood of the deceased was lying on the spot of the
incident. Cause of death of Naresh Pandey, as reflected from
the post mortem report is cardio respiratory failure due to
harmorrhagic shock with fracture of skull with open head
injury. Haemorrhagic shock suffered by the deceased as such
also goes to show that there was profuse bleeding from head
of the deceased. With this evidence on record, it is clear that
clothes of PW.1 Sunilkumar, who had pressed wounds of the
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deceased and lifted him for putting him in an autorickshaw,
must have been stained with blood. If really, PW.1 Sunilkumar
had witnessed the incident and handled the deceased, his
clothes would have been stained with blood and seizure of
such blood stained clothes would have lend assurance to the
version of PW.1 Sunilkumar. This did not happen. The
Investigating Officer failed to seize the clothes of PW1
Sunilkumar worn on the day of the incident. PW.1 Sunilkumar
went on denying the fact that his clothes were stained with
blood. This evidence of PW1 Sunilkumar indicates that he is
not the witness of truth whose version can be relied upon
without corroboration.
16. The next circumstances which casts a shadow of
doubt on version of PW.1 Sunilkumar is non recording of his
statement by the Investigating Officer on the date of the
incident i.e. on 13th September, 2007 though he was available
for recording his statement. It is seen from evidence of PW8
Harilal Chouhan that on the day of the incident PW.1
Sunilkumar was available for recording his statement.
Evidence of PW2 Santosh Pandey, brother of the deceased,
goes to show that he along with PW.1 Sunilkumar and Jai
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Thakur had taken deceased Naresh Pandey to Janseva
Hospital, Vapi and thereafter the dead body of Naresh Pandey
was taken to Marwar Hospital for autopsy. Evidence of PW8
Harilal Chouhan shows that on the day of the incident, PW.1
Sunilkumar was present at the hospital at Marwar. Considering
the fact that PW.1 Sunilkumar was claiming himself to be an
eye witness to the incident in question he being the co-worker
of the deceased, it was necessary for a prudent Investigating
Officer to record his statement immediately. However, for the
reasons best known to him, PW8 Harilal Chouhan,
Investigating Officer did not record statement of PW.1
Sunilkumar on 13th September, 2007. The only reason for this
lapse forthcoming from his evidence is that he was busy in
recording the inquest panchanama. Perusal of the inquest
panchanama at Exhibit-8 goes to show that it took time of
only 45 minutes for recording the same i.e. from 17.00 hours
to 17.45 hours of 13th September, 2007. Evidence of PW8
Harilal Chouhan - the Investigating Officer - goes to show that
on 13th September, 2007 i.e. on the day of incident itself, he
was well aware that PW.1 Sunilkumar is the sole eye witness
of the incident in question. Still, PW8 Harilal Chouhan failed to
record the statement of PW.1 Sunilkumar on that day. The
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explanation for not recording the statement of PW.1
Sunilkumar on 13th September, 2007 is not at all plausible.
This delay in recording the statement of the sole eye witness
amounts to serious infirmity in the prosecution case due to
concomitant circumstances such as non seizure of clothes of
PW.1 Sunilkumar in order to vouch his presence on the spot. It
is suggestive of the fact that the Investigating Officer was
taking time to decide the shape to be given to the case. This
infirmity makes the prosecution case suspect.
17. It has come on record through evidence of PW2
Santosh Pandey that PW.1 Sunilkumar is from his native place.
Evidence of PW2 Santosh Pandey, brother of the deceased,
makes it clear that PW.1 Sunilkumar was residing with him as
well as the deceased Naresh Pandey in Room No.30 of
Nareshbhai's chawl. Evidence of PW2 Santosh Pandey makes
it clear that deceased Naresh Pandey and PW.1 Sunilkumar did
join the duty in M/s. V.P.Plastic Company together after jointly
searching for job at various place. It is thus clear that PW.1
Sunilkumar was having close relations with the deceased
Naresh Pandey making him an interested witness. He being an
interested witness has interest in securing punishment to the
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accused. Relationship is not a factor which affects the
credibility of a witness but Court has to adopt a careful and
cautious approach for scrutinizing the evidence of such
witness in order to test his trustworthiness. In the case in
hand, PW.1 Sunilkumar has not clarified the place of work of
accused Vishvash Saptal. Though he has handled the
deceased who was profusely bleeding, this witness PW.1
Sunilkumar claims that his clothes were not all stained with
blood. Those were not seized by the Investigating Officer.
Though this witness PW.1 Sunilkumar was available for
investigation on the day of incident itself and though the
Investigating Officer was knowing that he is the sole eye
witness to the incident, his statement was not recorded on the
day of the incident. All these factors affect the credibility of
the version of this interested witness and it is difficult to
accept his version without corroboration from other evidence
from independent source.
18. Now, let us examine whether some corroboration
can be found to evidence of PW1 Sunilkumar as the same is
not free from doubt and as such it is not possible to base
conviction for a major offence on the basis of his sole
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testimony. According to the prosecution case, PW3 Vilash
Bhausaheb Shinde, Supervisor of M/s.V.P. Plastic Company is
another eye witness to the incident in question. As he has not
supported the prosecution case on material aspects, the
learned Additional Public Prosecutor had cross-examined him.
His version was accepted by the learned trial Court, as a
corroborative evidence as seen from para 20 of the impugned
judgment.
19.
Now, let us examine whether evidence of this
hostile witness can be used in order to advance the case of
the prosecution. It is 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 and cross-examined him. 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
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and deceased Naresh Pandey were present in the factory. As
per version of PW3 Vilash Shinde, PW1 Sunilkumar and
deceased Naresh Pandey were working in the Machine
Working Room. PW3 Vilash Shinde has 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 was cross-
examined by 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
the cross-examination. On due proof of the said contradiction
through evidence of PW-8 Harilal Chouhan, PSI, the same was
marked as Exh. 13-A.
20. It has come in evidence of PW3 Vilash Shinde that
soon after the incident he rushed to the spot of incident i.e.
Machine Room and found the deceased lying on the floor in
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presence of PW1 Sunilkumar and accused Vishvash. At this
juncture, it is apposite to reproduce para 20 of the impugned
judgment and order on conviction recorded by the learned
Sessions Judge, which reads thus :-
" As the another eye witness PW3 turned hostile portion
mark "A" from the statement of PW3 was brought on
record at Exh.13/A through the I.O. According to the I.O.
he recorded the statement of PW3 as narrated by him
and portion mark "A" was correctly recorded. In the said
portion mark there is specific mention of the name of the
accused. There is mention of PW3 finding the accused
with wooden log in his hand and the witness snatched it
from the accused and throwing it. This is corroborating
the version of the prosecution. I.O. deposed about
recording of statement of PW1 and other witnesses. "
21. 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
contradiction (Exhibit13-A) brought on record from the
evidence of PW3 Vilash Shinde. This duly proved contradiction
to the effect that PW3 Vilash Shinde had seen the accused
with wooden log in his hand and PW3 Vilash Shinde had
snatched that wooden log from the accused and threw it, is
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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.
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
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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
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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
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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,
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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,
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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 :-
(i) The appeal is allowed;
(ii) The impugned judgment and order dated 30 th July, 2009
passed by the Sessions Judge, Daman in Sessions Case
No.10/2007, thereby convicting the appellant / accused
of the offence punishable under section 302 of the Indian
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Penal Code, 1860 and sentencing him to suffer Rigorous
Imprisonment for life and to pay a fine of Rs.5,000/- in
default to suffer Rigorous Imprisonment for a period of
one month is hereby quashed and set aside;
(iii) The appellant / accused is set at liberty forthwith, if not
required in any other case and fine if any paid by him
him be refunded to him.
(NARESH H.PATIL, J.)
(A.M.BADAR, J.) (NARESH H.PATIL, J.)
