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Judgment
B. R. Gavai, J
1] The Appellants have approached this Court being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Greater
Bombay in Sessions Case No.846 of 2007, thereby convicting the Appellants for the offence punishable under Section 302 r/w 149 of the Indian Penal
Code (“IPC†for short) and sentencing them to undergo imprisonment for life and to pay a fine of Rs.2000/ each, in default to pay a fine to
undergo imprisonment for three months. The Appellants have also been convicted for the offence punishable under Section 143 of the IPC and
sentenced to suffer imprisonment for six months. The Appellants have also been convicted for the offence punishable under Section 144 of the IPC
and sentenced to undergo imprisonment for one year. The Appellants have also been convicted for the offence punishable under Section 147 of the
IPC and sentenced to undergo imprisonment for one year. The Appellants have further been convicted under Section 148 of the IPC and sentenced to
undergo imprisonment for two years.Â
2] The prosecution case in brief as could be gathered from the material on record is thus: Â
The first informant PWÂ1 â€" Smt. Gulzarun Amir Khan used to treat deceased Yogesh Rana as her son. Deceased Yogesh Rana used to reside
with PWÂ1 â€" Smt. Gulzarun Khan and her sons at Mumtaj Chawl, near Ashok Cable Co., Pathanwadi, Filterpada, Aarey Road, Powai Mumbai. At
the relevant time, the husband of PWÂ1 was imprisoned.
3] It is the prosecution case that on the date of incident i.e. on 30th July 2007 at about 10.00 a.m. when Yogesh Rana and she were in home alongwith
her son Arbaz, Yogesh Rana informed her that he was not keeping well, therefore, she alongwith her son Arbaz had taken Yogesh Rana to a doctor,
whose dispensary was situated at Bus Stop No.320. After taking treatment, deceased as well as herself were returning back to their house. When she
reached at Ashok Katial Company, the Accused No.4 came running from their backside and caught hold of Yogesh Rana by putting his hand around
his neck and dealt blow by means of chopper by the other hand in the chest of Yogesh Rana and had moved him around and then one person namely
Kaifi came there and assaulted Yogesh Rana by chopper on his eye. Thereafter Accused No.1 by means of chopper dealt blow on the backside of
head of Yogesh Rana. Accused No.2 assaulted by means of chopper on the back portion of neck of Yogesh Rana. Accused No.3 assaulted Yogesh
Rana by means of chopper over his head and body and Accused No.5 assaulted Yogesh Rana by means of iron bar on his hands and legs. There
were around 5 to 6 persons who assaulted her son by means of iron bar, who were not acquainted to her and she did not know their names.
Thereafter Accused No.2 had caused Yogesh Rana to fall on the ground. Thereafter she raised shout and attracted public for help. Thereafter
Shabnam â€" PW2 came on the spot and she informed the Police on Phone No.100, whereupon police arrived on the spot. Yogesh Rana was carried
by the Police to Rajawadi hospital. Thereafter she went to Powai Police Station and lodged oral report, which was reduced in writing by PSO as per
her say.
4] On the basis of oral report of PWÂ1, First Information Report came to be registered below Exh.18. The investigation was set in motion. At the
conclusion of investigation, a chargeÂsheet came to be filed in the Court of learned Metropolitan Magistrate, Andheri. As the offence punishable
under Section 302 of the IPC, was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions.
5] The learned Trial Judge framed charges against five accused persons for the office punishable under Section 143, 144, 147, 148, 302 r/w 149, under
Section 201 r/w 149, under Section 506(II) r/w 149 and under Section 37(A) r/w 135 of the Bombay Police Act against all the accused below Exh.7.
The accused pleaded not guilty and claimed to be tried. The prosecution examined 25 witnesses and also tendered documentary evidence. At the
conclusion of trial, the learned Trial Judge passed the aforesaid order of conviction against the present Appellants. However, the Appellants were
acquitted for the charges punishable under Section 201 r/w 149 and Section 506(II) r/w 149 of the IPC, so also the offence punishable under Section
37(A) r/w 135 of the Bombay Police
Act. The Accused No.5 was acquitted of all the charges, charged with.
6] We have heard Mr. Prakash Shetty and Mr. Abad Ponda, learned counsels on behalf of Appellants and Ms. M. H. Mhatre, learned APP on behalf
of Respondent â€" State.
7] Learned counsel for the Appellants submits that out of the three eye witnesses namely, PWÂ1 â€" Smt. Gulzarun Amir Khan, PWÂ2 â€" Smt.
Shabnam Yusuf Khan and PWÂ4 â€" Arbaz Amir Khan, the learned
Trial Judge himself has disbelieved the evidence of PWÂ2 â€" Smt. Shabnam Khan. It is therefore submitted that, the only evidence remain is that of
PWÂ1 â€" Smt. Gulzarun Amir Khan and PWÂ4 â€" Arbaz Amir Khan. It is submitted that, in her First Information Report, PWÂ1 â€" Smt.
Gulzarun Khan does not state that PWÂ4 Â Arbaz Khan had accompanied her to the hospital. It is submitted that only to add credence to the
testimony of eye witness PWÂ1 â€" Smt. Gulzarun Khan she has stated in her deposition about PWÂ4 â€" Arbaz Khan accompaning her and
Yogesh Rana to the hospital. It is further submitted that the presence of PWÂ4 â€" Arbaz Khan on the spot itself is highly doubtful in as much as he
has given the total contradictory version as compared to that of PWÂ1 â€" Smt. Gulzarun Khan. The learned counsel further submits that from the
evidence of PWÂ1 â€" Smt. Gulzarun Khan itself, it would reveal that she has not witnessed the incident. It is submitted that though she admits that
there was a doctor next to her house, she states that only on this occasion, she had gone to another doctor near Bus Stop No.320. It is submitted that,
though it is the prosecution case that PWÂ1 â€" Smt. Gulzarun Khan and deceased were returning after taking medicines from the doctor, neither the
prescription nor the medicines are seized. It is therefore submitted that the story put forth by the prosecution is totally got up. Learned counsel further
submits that, the recoveries made on the alleged memorandum under Section 27 of the Indian Evidence Act are also not reliable. In totality of the
circumstances, it is submitted that the Appeal deserves to be allowed and order of sentence is liable to be set aside.
8] Ms. M. H. Mhatre, learned APP vehemently opposes the Appeal. She submits that the evidence of PWÂ1 â€" Smt. Gulzarun Khan clearly
implicates the present Appellants. She submits that in her evidence specific role is attributed to all the Appellants. It is submitted that the Appellants
are the neighbours of the PWÂ1 â€" Smt. Gulzarun Khan and as such there should not be any reason to disbelieve her testimony. It is further
submitted that the attack on the conduct of the PWÂ1 is also without substance. It is submitted that as to how the person will respond to a situation
depends on person to person and merely because PWÂ1 did not do anything to save the deceased, cannot be a ground to discard her testimony.
Learned APP further submits that apart from that, weapons used in the crime are recovered at the instance of the Appellants, as can be seen from
the evidence of PWÂ7, PWÂ8 and PWÂ9. The Chemical Analysis Report shows the said recovered clothes and weapons were stained with blood.
She further submits that, the motive for the crime has come in the evidence of PWÂ4 i.e. the quarrel which has taken place on the earlier date. It is
therefore submitted that there is no merit in the Appeal and the Appeal is liable to be dismissed.Â
9] With the assistance of the learned APP as well as the counsel for the Appellants, we have scrutinized the evidence on record. Initially, the
prosecution has examined four witnesses as eye witnesses. They are PWÂ1 â€" the First Informant â€" Smt. Gulzarun Khan, PWÂ2 â€" Smt.
Shabnam Khan, PWÂ3 â€" Smt. Mumtaz Begum Khan and PWÂ4 â€" Arbaz Khan â€" son of the First Informant. Out of these four eye witnesses,
the learned Trial Judge has disbelieved the evidence of PWÂ2 â€" Smt. Shabnam Khan and PWÂ3 â€" Smt. Mumtaz Begum Khan. We have
scrutinized the evidence of these two witnesses. Upon scrutiny of the evidence, we find that the learned Trial Judge has rightly disbelieved their
evidence.
10] We have perused the evidence of PWÂ1 â€" Smt. Gulzarun Khan and PWÂ4 â€" Arbaz Khan. Perusal of the evidence of PW Â1  Smt.
Gulzarun Khan would reveal that in her examinationÂinÂchief she has stated that on the date of incident she was in her house alongwith her son
Arbaz and the deceased. Deceased told her that he was not keeping well and thereafter she herself with her son Arbaz had taken Yogesh Rana to a
doctor. In her crossÂexamination, she has stated that while filing report she has stated that her son Arbaz was present at home and he accompanied
them to hospital and back towards their home. However, it is pertinent to note that PWÂ24 â€" Dattatray Laxman Somvanshi â€" PSI, who has
recorded the First Information Report Exh.18, has clearly stated in his deposition, that the PWÂ1 did not state before him that when she was
proceeding towards her house alongwith Yogesh Rana her son Arbaz was alongwith them. It is further to be noted that there are material
contradictions with regard to the incident in the deposition of PWÂ1 â€" Smt. Gulzarun Khan and PWÂ4 â€" Arbaz Khan. PWÂ1 states that the
Accused No.1, Accused No.2 and Accused No.3 assaulted the deceased by means of chopper. PWÂ4 â€" Arbaz Khan states that Accused Nos.1
and 2 were armed with knife, whereas Accused No.3 was armed with iron bar. In view of nonÂmentioning of fact in the FIR by the PWÂ1 â€" Smt.
Gulzarun Khan, that PWÂ4 â€" Arbaz Khan accompanied her and in view of the material contradictions in the deposition of PWÂ1 â€" Smt.
Gulzarun Khan and PWÂ4 â€" Arbaz Khan and particularly in view of specific assertion by her in the FIR that she had alone taken deceased to the
hospital and after taking treatment, two of them were returning home, it will not be safe to rely on the testimony of PWÂ4 â€" Arbaz Khan.
11] That leaves us with the evidence of PWÂ1 â€" Smt. Gulzarun Khan, who is a star witness. No doubt that a conviction can be based on the basis
of evidence of a solitary witness. Their Lordships of the Apex Court in the case of Vadivelu Thevar Vs. The State of Madras AIR 1957 SC 614 Â have
observed thus: ÂÂ
“Hence, in our opinion, it is a sound and wellÂestablished 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.
(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 â€" 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. Situations may arise and do arise where only a single person is available to give evidence in support of
a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints
which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where
the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in
cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that
of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that
the testimony of a single witness is entire reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the
only reliable evidence in support of the prosecution.â€Â Â
12] It could thus be seen that as held by Their Lordships, there should not be difficulty in resting an order of conviction when testimony of a solitary
witness is found to be totally reliable. If the Court finds that the evidence of solitary witness is wholly reliable and free from all taints, then there should
be no difficulty in resting the conviction on the basis of evidence of such a solitary witness.
13] It will be relevant to refer to the relevant part of the examinationÂinÂchief of PWÂ1 â€" Smt. Gulzarun Khan: Â
 “The incident had taken place at about one year ago from today when I was at my house alongwith my son Arbaz, regarded son Yogesh Rana
(the deceased) at about 10 a.m. At that time I was preparing tea. At that time
Yogesh Rana informed me that he is not keeping well. Thereafter I myself and my son Arbaz had taken Yogesh to doctor of his dispensary situate at
near bus Stop No.320 and accordingly treatment was given by doctor to Rana and medicine. Likewise medicine was taken for me. Then we were
returning back to our house. When we reached at Ashok Katial Company at that time from our back side the accused No.4 came while running and
caught hold Yogesh Rana by putting his hand around his neck and dealt blow by means of chopper by other hand on the chest of Yogesh Rana. Then
Yogesh Rana was moved by him around. Then one person namely Kaifi came there and he assaulted Yogesh Rana by chopper on his eye. Then the
accused No.1 by means of chopper had dealt blow on the back side of head of Yogesh Rana. Then the accused No.2 assaulted blow by means of
chopper on the back portion of neck of Yogesh Rana. Then the accused No.3 assaulted my son
Yogesh Rana by means of chopper over his head and body. The accused No.5 had assaulted Rana by means of iron bar on his hands and legs. There
were other five to six persons they assaulted my son by means of iron bar but they were not acquainted to me hence cannot name them. Then
accused No.2 had caused Yogesh Rana to fall on ground. Then I raised shouts and attracted public for help. Thereon my brother's daughter Shabnam
arrived on the spot. Then she ranged to the Police on phone No.100 thereon police arrived on the spot. Then the injured Yogesh Rana was carried by
the Police in Rajawadi Hospital. Then I had been in Pawai Police station and lodged oral report which was reduced to writing by the P.S.O. As per
my say.â€
14] In her crossÂexamination, she has admitted that in front of her house after road there is a hospital of doctor. She has stated that however, on the
date of incident, she has been to the hospital of other doctor. She has further admitted in her deposition that she does not know the name of the doctor
to whom they had gone on the date of incident for treatment. She has further admitted that she had never gone to the said doctor other than the date
of the incident. She has stated that they were followed by some strangers from backside due to which she was frightened. However, no attempt was
made by them to flee away from the spot. She has further stated that no attempt was made by her to catch hold of Yogesh Rana. She has further
stated that when Yogesh Rana fell on the spot, she did not try to save him or catch him. It will be further relevant to note from the evidence of PWÂ‐
24, that the body of the deceased was disposed of being remained unclaimed.Â
15] It could thus be seen that according to PWÂ1, though she regarded the deceased as her son, neither she made any attempt to save him, nor did
she make any attempt to catch him when he was falling down. Not only that, but her evidence would show that she did not find it necessary to visit
the Rajawadi hospital, where deceased was taken after the assault. It will be further relevant to refer to following admission in the crossÂ‐
examination.
“While lodging report it was stated by me that during the incident I raised the shouts and alarmed for attracting others to the spot. However my
report is silent thereto. No attempt was made by me in caught holding Yogesh Rana. When Yogesh Rana fell on the spot I did not try to save him or
caught him.â€
16] It is further to be noted that though she regarded the deceased as her son neither she nor her sons claimed the body of the deceased and the body
was disposed of by the police as unclaimed. In this respect, it would be appropriate to refer to the following observations of Their Lordships in the
case of Anil Phukan Vs. State of Assam AIR 1993 SC 1462: Â
“The unnatural conduct of Ajoy PW 3 which has come to our notice from the record is that though he was present along with the deceased at the
time of occurrence, on 21Â3Â1976, at about 8 p.m., he made no attempt to save his uncle from the assault. He did not even continue to stay there,
though of course according to him, he ran for his life on being advised so by his uncle. He was not assaulted though both he and his uncle were
unarmed. Even if Mahendra was engaged in assaulting the deceased, Anil, who was also allegedly armed neither made an attempt to assault Ajoy PW
3 nor even chased him.â€
17] In the aforesaid case, Their Lordships therefore refused to rely on the testimony of Ajoy, who was the sole eye witness, without there being some
independent corroboration. It will be further relevant to refer to the following observations of Their Lordships: Â
“3. This case primarily hinges on the testimony of a single eyeÂwitness Ajoy PW 3. Indeed, conviction can be based on the testimony of a single
eyeÂwitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the
single eyeÂwitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single
eyeÂwitness is not found to be wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest
in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording
conviction. It is only when the courts find that the single eyeÂwitness is a wholly unreliable witness that his testimony is discarded in toto and no
amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy.â€Â  Â
18] We are of the considered view that from the conduct of PW1, it will not be safe to rest the conviction of the Appellants on her sole testimony,
without there being corroboration to her evidence. The prosecution has attempted to corroborate the evidence of eye witnesses on the basis of
recoveries made from the accused on memorandum under Section 27 of the Indian Evidence Act. The prosecution also relies on the Chemical
Analysis Report, according to which blood stains have been found on the said seized weapons. In so far as the Accused No.1 â€" Gufran Ahmad
Noushad Aalam @ Nadan is concerned, the prosecution relies on the evidence of PWÂ7 â€" Sadashiv Sheshrao Bhadarge. PWÂ7 in his deposition
says that after the memorandum, Accused No.1 was willing to produce the clothes, which he had worn at the time of commission of crime and
weapons by which he had committed the crime. Police party went to Filterpada alongwith accused. Accused took them near Shivam Juice Center.
Accused pointed out a room No.MMRD 19981 and told that he had kept clothes and weapons in the said room. Thereafter police informed Smt.
Azgari Begum Sayyed who was present in the room about their purpose of visit. The accused inspected the room and after inspecting the room took
out an iron chopper and clothes worn by him. It could thus be clearly seen that the recovery by the police is not from a place distinctly within the
knowledge of the Accused No.1, but accessible to others also.
19] In so far as the Accused No.2 is concerned, the prosecution relies on the evidence of PWÂ8 â€" Ram Danari Shukla. The said witness also
states that accused was willing to show the place where he had hidden the clothes worn by him at the time of commission of crime and weapon used
in crime. He further states that accused thereafter took police party at Dindoshi near Saiba Bakery. Thereafter, the accused took out the clothes
hidden by him from electrical cabin near public toilet. Apart from the fact of the said recovery being from the place accessible to others than the
accused, it will be relevant to refer to the admission of this witness in his crossÂexamination :Â
“The police had informed me to act as a panch in one murder case. I had instructed him that I wanted to resume my duty whereon I informed that
till 12 noon recovery of chopper clothes from Dindoshi area will be completed hence I should not worry about it.â€
It could thus be seen that sole witness much prior to the disclosure of statement being recorded, was made aware that the recovery of weapon and
clothes was to be done in Dindoshi area.Â
20] In so far as Accused No.3 is concerned, the prosecution relies on evidence of PWÂ9 â€" Pravin Arjun Narayane. He has stated in his
examinationÂinÂchief that one Nimbalkar had called him to act as Panch hence he had been in Powai Police Station. It could thus be seen that in the
present case also, Panch witness was informed much prior to recording of declaration under Section 27 that he was to visit Filterpada. He further
states that, at that time one paper was prepared by police and it was signed by other panch and by the accused. The said witness has been declared
hostile. In his crossÂexamination by the APP, he has stated that it is true that the accused No.3 had made memorandum statement regarding
discovery of chopper and iron bar hence his statement was reduced in writing. However, it will be relevant to refer to his cross examination: Â
“It is true that Head constable Nimbalkar had informed me that alongwith me they wanted to visit Filterpada. Thereafter I had been in the crime
detection room.â€
He has not stated about the disclosure statement being made by the accused. We are therefore of the considered view that no significance could be
attached to such recoveries.Â
21] The prosecution has also tried to rely on the evidence of PW4 â€" Arbaz Khan with regard to the motive for committing the crime. He states that
on 29th July 2007 at around 4 to 5 p.m. after purchasing milk, he was coming back towards his home, at that time Accused No.1 inquired with him
about Yogesh Rana and Jafar (other brother of the witness). He disclosed that he had no idea where the said persons have been. He thereafter
narrated the said incident to PWÂ1 (his mother Smt. Gulzarun Khan). He states that thereafter PWÂ1 informed Nadan Chacha about mischief.
Nadan Chacha told them that he will do the needful. Thereafter he alongwith PWÂ1 went to Powai Police Station. There he made complaint against
accused. He had stated that Accused No.3 before the Court was Nadan Chacha. He further states that Powai Police asked them to go in Murarji
Police Chowki. Thereon two police by bike brought Accused Nos.1 and 2 in the Police Chowki. Thereafter they came back to their house. It is to be
noted that though this incident is alleged to have taken place on 29th July 2007 i.e. prior to the incident of 30th July 2007, there is no mention in this
regard in the FIR. At the most, this incident would show some previous enmity between Accused on one hand and PWÂ1 and PWÂ4 on the other
hand. It is to be noted that Accused Nos.1 and 4 are sons of Accused No.3. Accused No.3 is also related to them. It has come in the evidence of
PWÂ1 that accused are her neighbours. The previous enmity is sought to be brought on record in the deposition of the prosecution witnesses itself. In
the evidence of PWÂ1 itself, it has come on record that a large number of her family members including her husband, her sons are having criminal
records and have been imprisoned. Not only that, but it has come in her evidence that deceased Yogesh Rana was acquainted with them since he and
her son Jafar had spent time together in the children home at Dongri. As held by the Apex Court in the case of Ramashish Rai Vs. Jagdish Sing
(2005) 10 SCC 498 Âp revious enmity is double edged sword on one hand it can be ground for assault and on the other hand possibility of false
implication also cannot be ruled out.
22] In the present case, we are of the considered view that the evidence of PWÂ1 cannot be said to be wholly reliable so as to rest conviction on the
basis of same. It would not be safe to base conviction on the basis of her evidence unless there is some corroboration to her evidence. As already
discussed hereinÂabove, there is no corroborative to her evidence. In that view of the matter, we pass the following order: Â
(i) Appeal is allowed.
(ii) The judgment and order of conviction and sentence is set aside.
(iii) Appellants/Accused are acquitted of the charges, charged with.
(iv) Appellant/Accused Nos. 1, 2 and 4 are directed to be set at liberty forthwith, if not required in any other case.
(v) Bail bonds of Appellant/Accused No.3 stands cancelled.
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