Bombay High Court
Sheetal Anil Berlekar And Anr vs The State Of Maharashtra on 9 February, 2022
Bench: S.S. Jadhav, P. K. Chavan
Digitally
signed by
VARSHA
VARSHA DEEPAK
DEEPAK GAIKWAD
GAIKWAD Date:
2022.02.09
apeal.423.2000.doc
11:48:41
+0530
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, }
Kolhapur } Appellants
Versus
The State of Maharashtra } Respondent
-------------------
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 :- (PER SADHANA S. JADHAV, J.)
1. The Appellants herein are convicted for the offence
punishable under section 302 read with 34 of Indian Penal Code and
under section 135 of Bombay Police Act and are sentenced to suffer
for life and fine of Rs.2000/- each, in default, simple imprisonment
for six months by the 5th Additional Sessions Judge, Kolhapur vide
judgment and order dated 12th May 2000 in Sessions Case No. 169
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of 1999. Hence, this appeal.
2. Such of the facts necessary for the decision of this appeal
are as follows:-
a) The accused no. 2 happens to be the
maternal uncle of accused no.1 and worked as a peon in
Shahu Merchants Urban Co-operative Credit Society. The
accused no.1- Sheetal had started residing with the
accused no.2. He was accompanied by his parents and
sister Megha. The house of Parashram Dattatraya Khade is
just across the road from the house of the accused no.2.
Sachin happens to be the son of the complainant. It is
alleged that Megha used to visit the telephone booth of the
complainant for making telephone calls and she was
insisting upon him to marry her. The complainant and his
wife had overheard the said conversation between Sachin
and Megha on their intercom.
b) It is further the case of the prosecution that
on 9th August 1999 at about 6.30p.m. Sachin was present
in the STD booth when he received a call from the accused
no.1 calling Sachin near Hotel Suzuki situated at Chandani
Chowk. Complainant had overheard the conversation on
the intercom. The said invitation by accused no.1 was
followed by a threat that Sachin would face dire
consequences upon failure to come near Hotel Suzuki.
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Sachin defied the caller and asked him to visit the STD
booth, if he so desired.
c) Upon inquiry by the complainant Sachin had
disclosed that the accused no.1 is under the misconception
that Sachin teases Megha i.e. sister of accused no.1 and
therefore, had called upon him. It is alleged in the First
Information Report lodged by the complainant that at
about 8.00p.m. 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 complainant has raised hue and cry. Upon seeing the
complainant, both the accused fled away. The people in the
vicinity had gathered. The injured was taken to CPR
hospital and was declared dead on arrival.
d) PW.1-the complainant i.e. Parashram Khade
lodged a report at the Laxmipuri Police Station against the
accused persons. On the basis of the said complaint, Crime
No. 60 of 1999 was registered for the offence punishable
under section 302 read with 34 of Indian Penal Code and
under section 135 of the Bombay Police Act. The F.I.R. was
registered as 00 number at Laxmipuri Police Station and
then forwarded to the concerned police station.
3. At the trial the prosecution has examined as many as 17
witnesses to bring home the guilt of the accused. The case rests on
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the evidence of four eye witnesses i.e. PW.1-Parashram Dattatraya
Khade, PW.5-Balasaheb Ashok Mudholkar, PW.6-Rashid Aabubakar
Pirjade and PW.7-Mangala Nivrutti Gurav. According to the
prosecution, it is the case of direct evidence.
4. PW.1- Parashram Khade has deposed before the Court
that he had employed a girl to look after the telephone booth. Her
duty hours is 11.00a.m. to 5.00p.m. and after 5.00p.m. the STD
booth was managed by one of his sons and Sachin happens to be his
youngest son. His house is situated in a market place. He was
acquainted with the accused ever since their childhood. At the time
of incident, the accused no.1 was staying with accused no.2
alongwith his family. That, Raviwar Peth Tarun Mandal is situated
just opposite the STD booth and young boys used to gather there.
PW.1 had overheard the conversation between the accused no.1 and
Sachin. On the day of incident he had also heard his son defying the
caller. He had heard the accused no.2 exhorting the accused no.1 to
assault Sachin and had also seen the actual incident of assault. PW.1
had shouted for help and with the help of boys at Ravivar Peth Tarun
Mandal he had carried Sachin to the hospital. At the hospital he had
disclosed to one Pirjade and Mudholkar that Sachin was assaulted by
none other than the accused.
5. The cross-examination of the witnesses is pointed
towards the direction of demonstrating that indeed PW.1 had not
actually seen the incident of assault and was not present at the scene
of offence. PW. 1 has expressed doubt that no love affair could have
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developed between Sachin and Megha within eight days since
accused no.1 had started residing with accused no.2 just eight days
prior to the incident.
6. There is a suggestion in the cross-examination that the
said allegations are levelled against the accused due to political
rivalry since the complainant is a leader of Kolhapur City and has
cordial relation with Baburao Jadhav, the leader of the house and at
the time of incident the complainant was one of the Director of Co-
operative Bank whereas Baburao Jadhav is the Chairman. It is
pertinent to note that topography of the booth as suggested by the
defence are admitted by PW.1. It is further admitted that one has to
climb two steps to enter into the STD booth since it is elevated from
the ground. It is also admitted that the accused no.2 Babasaheb
resides near the intersection, at the southern east corner formed by
the east-west cross road known as the Mahar Galli. It is also further
admitted that the incident had taken place on Sunday and many
hawkers were selling their goods in front of the STD booth. It
appears that the said question was especially asked as, besides PW.1,
no eye witness is examined to substantiate the case of the
prosecution.
7. It is elicited in the cross-examination that the
complainant knew Megha as she used to visit the said telephone
booth between 9.00a.m. to 9.30a.m. Sachin used to go for work at
about 8.00a.m. That Megha used to call on the STD booth to some
other telephone, whenever she received the calls, the call was
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disconnected but he could identify her voice. He also overheard the
conversation between Megha and Sachin.
8. It is admitted in the cross-examination that he could
identify the voice of the caller when the last call was made at about
6.30p.m. on 09/08/1999. He only heard Sachin refusing to go to
Suzuki Hotel. Sachin had informed him about the name of the caller
and the purpose. There are material omissions in the evidence of
PW.1 which go to the very root of the matter. It is also admitted that
at the relevant time, PW.1 was chatting with the friend of his son i.e.
Manoj Kavale.
9. It is admitted in the cross-examination that when he saw
the accused persons coming towards the telephone booth he did not
suspect any foul play. At the time of exhorting accused no.1. The
accused no.2 had not actually entered the STD booth but his one
foot was on the last steps. Whereas PW.1 rushed him and at that
juncture he had seen accused no.1 drawing the dagger and
assaulting but at that time he was standing outside the STD booth
and therefore he could not see as to whether accused no.1 had
drawn the dagger from inside pocket of his clothes or from the waist
side. The accused no. 1 had vertically pulled the dagger at the time
when Sachin was sitting on the chair inside the STD booth. The
accused no. 1 had mounted the first blow over the chest followed by
a blow on the head. Even after hearing the accused no.2 asking the
accused no.1 to assault Sachin. There was no reaction from Sachin,
there was no time to accost the accused and therefore, he could not
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see who chased the accused persons but PW.1 claims to have seen
the accused dropping the dagger outside the STD booth.
10. It is also admitted that despite enquiry by the public
PW.1 had not disclosed to anyone that Sachin was assaulted by the
accused no.1. The omissions to the effect that Manoj Kavale was
present at the scene are admitted.
11. The suggestions that there was failure of electricity
supply in the said locality at the time of incident has been denied. It
is admitted that PW.1 has not only not disclosed the incident to the
neighbours but he has not even disclosed about the incident to his
elder son.
12. PW.5 - Balasaheb Mudholkar claims to be a social worker
in the area of Laxmipuri and Raviwar Peth Tarun Mandal. He
alongwith the other members of the community performed 'Aarti' in
the temple of Sarvashakshi Ganpati everyday between 7.30p.m. to
8.30p.m.
13. According to him, the STD booth by name Sarvasakshi
Doordhwani Kendra is situated in front of Mandal. The witness
claims to be knowing the accused no.1 since his childhood.
14. PW.5 claims to be the eye-witness to the incident of
assault. He had also heard the father of Sachin shouting by saying
'don't hit'. He alongwith Lalsing Chavan and Pirjade claims to have
rushed to the STD booth upon seeing the incident but the accused
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had fled before they could reach and while fleeing the accused had
dropped the dagger on the road. When they reached the booth, they
saw PW.1 holding his son.
15. In the cross-examination, it is categorically admitted that
the said Tarun Mandal is situated opposite Gurav Trading Company
and Shiv-prasad Trading Company and Lohar Chawl stands in
between the Tarun Mandal and the temple. That they sang five
'Aarties' everyday at the temple. According to the witness, during the
night time the activities inside the booth can be seen because of the
electricity in the STD booth. However, he could not recollect as to
whether there is visibility of the activities inside this STD booth
during the day time.
16. It is also admitted that if a person is on the door step of
the Ravi Bank, he cannot see inside the STD booth. He was
accompanied by Pirjade only till the incident took place. The very
fact that people had gathered for performing 'Aarti' is an admitted
omission.
17. As far as the topography of the scene of offence and the
actual act of assault is concerned, PW.5 has stated that the STD
booth is located on an elevation from the ground and one has to
climb two steps to reach inside the booth. It is further stated that
PW.5 had actually seen the accused no.1 drawing the dagger from
his right side of his waist. However, he was not sure as to whether it
was stuck in or was concealed in his pocket because the dagger was
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lifted vertically. In the very next breath PW.5 has stated that while
entering the STD booth the accused no.1 was carrying a dagger in
his hand. He has not seen whether PW.1 was present when accused
no.2 exhorted the accused no.1 to assault Sachin but as a reaction to
the incitement by accused no.2, the accused no.1 just rushed inside
the booth and as soon as he entered, inside the booth the father of
the deceased rushed towards the booth trying to restrain them. The
width of the door is such that only one person can enter at a time.
Since the accused no.1 was at the door step, accused no.2 could not
enter into the cabin and at the time of assault, Sachin was seated in
a chair. In the very next breath it is stated that the deceased was
seated on the stool when second blow was given over his head.
18. That PW.1 neither apprehended the accused nor raised
shouts. PW.5 has also admitted that he had not made any attempts
to catch hold of the accused persons. According to him, the accused
no.1 did not deliberately throw the dagger on the road but it fell
from his hand. On the way back to the house, PW.1 had disclosed the
reason for attack on the deceased. PW.5 had accompanied the
injured and his father to the hospital.
19. PW.6- Rashid Pirjade claims to be in the company of
PW.3 at the relevant time of incident. According to him, on the day
of incident there was a fair of Mahi which was being celebrated in
the house of Jairam Khamkar and a Goat was to be sacrificed. PW.6
was present on the steps of Ravi Bank at about 7.45p.m.
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20. The witness admits to be short sighted and he uses the
glasses of 5.5. Dioptre. It is also admitted that the activities in the
STD booth are not visible from the staircase of the said bank and it is
admitted that PW.6 and his friend were seated on the staircase of the
said bank. There are material omissions in the evidence of PW.6
insofar as the actual incident is concerned. According to him, Sachin
did not get up from the chair even after he heard incitement by the
accused no.2. Upon hearing the words of the accused no.2 neither
the witness nor the father of the deceased had gone near the STD
booth. Neither did they intervene upon seeing the accused no.1
drawing the dagger. Sachin did not raise shouts despite being
assaulted twice. After being assaulted, Sachin came out of the STD
booth and after he came out PW.1 caught hold of him. Hence, no one
chased the accused persons. When PW.6 alongwith PW.5 reached in
front of the STD booth, Sachin was lying on the platform (pedestal)
at the distance of 2 feet there from. PW.6 was not sure as to whether
Sachin was unconscious or not at the time when he was being
carried to the hospital it was only after returning from CPR hospital
that the witness had enquired with PW.1 about reason.
21. PW.7-Mangala Gurav another eye-witness is the
proprietor of Gurav Trading Company. Shiv-prasad Trading Company
is adjacent to Gurav Trading Company. PW.1 happens to be the
owner of both the shops. She claims to be standing in front of the
shop at the time of incident. According to her, while stabbing Sachin
accused no. 1 had partly entered into booth i.e. his one leg was
inside the booth and another was outside the STD booth, whereas
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accused no.2 was standing outside the booth. It is admitted that
Shiv-prasad Trading Company is situated in between the STD booth
and Gurav Trading Company and the activities in the said STD booth
are not visible from her shop, yet see claims to have seen the
incident .There is a staircase leading to the first floor of the house of
Sachin, adjacent to her shop. That, STD booth is diagonally opposite
Raviwar Peth Tarun Mandal. That, Sachin was not stabbed but was
hit with a dagger. Sachin was brought outside the STD booth by his
father.
22. PW.8-Vijaykumar Patil, happens to be a panch. The
observation in the panchnama that adjoining to the grocery shop of
PW.7 there is a wooden staircase leading to the residential room of
the complainant admitted by PW.8.
23. The medical evidence in the present case is brought on
record through PW.9- Dr. Atulaya Patil. He has proved the contents
of postmortem notes which are marked at 'Exhibit-37'. The witness
was shown the dagger i.e. article no.2 and according to him, injury
no.1 can be possibly caused by the said weapon. The cause of death
was 'haemorrhagic shock due to penetrating injury to heart'.
According to PW.9 there must have been profused bleeding from
injury no.1 and it would take 3 to 5 minutes to form a clot after the
injury is exposed to the external air. It is opined that the cause of
death is due to haemorrhagic shock. The register of the hospital
shows that the injured was brought dead to the hospital. The fact
that the injured was brought dead to the hospital is corroborated by
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the evidence of PW.10-Reshma Patil. She had produced the
photocopy of the register showing that the injured was brought
dead. The same is marked at Exhibit-39. The overwriting in the
register is also admitted by the witness. The timing was initially
shown as 8.00p.m. and the same was substituted by 8.15p.m. The
explanation for overwriting is that the ink of the said pen had got
over.
24. It is pertinent to note that PW.12 has categorically
admitted that no case papers were prepared at CPR hospital. The
identity of the informer at CPR hospital is not mentioned as PW.12.
had not noted his name and address and the said informer was not
sent the said police station along with police constable or anybody
else. The said entries are at 'Exhibit-40'. There appears to be an
interpolation in the case history which shows that the incident had
occurred in Sarvashakshi booth and the said words are indicated by
arrow in the case history. According to the witness the said
interpolation is taken place since the said word 'assault' in
Sarvashakshi booth could not be written in one stroke for want of
report. No serial number was given to the said entry which is
recorded at page 820 with an endorsement 'since Sachin Khade is
brought to the hospital in an injured condition due to stabbing,
intimation is given to the police station'. The information was given
to Laxmipuri Police Station. The said information was reduced into
writing in the station diary. He had deputed P.S.I. Pardeshi to CPR
hospital. The information was given to P.S.I Jadhav. PW.14 on his
own had deputed additional police to the spot.
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25. The present case rests upon the evidence of eye-
witnesses. The topography of the scene of offence is important to
determine as to whether the eye-witnesses from their given location
could have seen the incident. To substantiate the same the
prosecution has examined PW.11-Dattatraya Dikshit who was
serving as a maintenance surveyor in the City Survey Office. He has
admitted that the map was not drawn according to the scale but it
was only a sketch and only the sites mentioned in the spot
panchnama are reflected in the said sketch. The said sketch is at
Exhibit-42. He had then drawn the second map of the scene of
offence showing the distance between the STD booth and
Sarvasakshi Ganpati Temple. The distance between STD booth and
Raviwar Peth Tarun Mandal. The said map was drawn at the place.
The said map is also not drawn as per the scale. The second map is
at 'Exhibit-42'. Both the maps were drawn on the same day. It is
admitted that Raviwar Peth Tarun Manal and Sarvashakshi Ganpati
Mandal do not find place in Exhibit-52. The reason for drawing the
second map was that he had received incomplete scene of offence
panchnama. The staircase adjacent to Gurav Trading Company is
admitted. There are omissions in 'Exhibit-43'. 'Exhibit-42' was
produced before the Court at the time of recording of evidence of
PW.1.
26. PW.17-Subhash Jadhav happens to be the investigating
officer. He has deposed before the Court about the steps taken by
him in the case of investigation. He has proved the omissions and
contradictions in the evidence of the witnesses. It is admitted in the
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cross-examination by PW.17 that he has seen dagger lying outside
the STD booth and the same is recorded at the scene of offence
panchnama. It is admitted that he has not taken the finger prints on
the dagger. There are bloodstain on the tip of the dagger when it
was seized and the bloodstain was dried.
27. PW.17 categorically admits that there were bloodstains
on the floor (farshi) 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
same night.
28. 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.
29. 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
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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
functional.
30. 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.
31. 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
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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.
32. 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
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has not disclosed about the incident to his elder son also nay any
other person.
33. 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.
34. 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
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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.
35. With the help of learned counsel for the appellant and
the learned APP, we have perused the records and proceedings.
36. Upon meticulous appreciation of the evidence of the eye-
witnesses what flows from the testimony adduced by the prosecution
is as follows:-
i) 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.
ii) 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
has occurred.
iii) 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.
iv) 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.
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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.
vi) It is not the case of PW.5 and PW.6 that they had
helped PW.1 to get the injured outside the shop.
vii) 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.
37. 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.
38. 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
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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.
39. 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.
40. 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.
41. 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
Ravi Bank.
42. 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
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leading to the house of the complainant are adjacent.
43. 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
sterling quality.
44. 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.
45. 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
1 (2006) 11 SCC 323
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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".
46. 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.
47. 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.
48. 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.
49. The Apex Court in the case of 'Dudh Nath Pandey vs. The
State of U.P.'2 has held as follows :-
2 1981 (2) SCC 166
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"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
witnesses".
50. 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
prosecution
- a lapse on the part of the defence witness cannot be
differentiated and be treated differently than that of the
prosecutors' witnesses.
51. 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.
3 2002 (1) SCC 351
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52. 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.
53. 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.
54. 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.
55. 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,
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to act upon the supposition that it exists. A fact is said not to be
proved when it is neither proved nor disproved.
56. 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.
ORDER
i) The appeal is allowed.
ii) 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. 169 of 1999
is hereby quashed and set aside.
iii) The Accused/appellants stand acquitted of all the
charges levelled against them.
iv) Their bail bonds stand cancelled.
v) Fine amount if paid, be refunded to the accused-
appellants as per rules.
vi) The appeal is disposed of accordingly.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
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