Sada Bhatra And Another vs State Of Orissa

Dr. S.Muralidhar, CJ

This appeal is directed against the judgment dated 27th June, 2016 passed by the Sessions Judge, Nabarangpur in Criminal Trial No.118 of 2012 whereby both the Appellants have been convicted under Section 302/201/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo further rigorous imprisonment (RI) for a period of one year for the offence under Section 302/34, I.P.C. and for the offence under Section 201/34 IPC they had been sentenced to undergo RI for 3 years and to pay a fine of Rs.2,000/-, and in default to undergo RI for 3 months more.

The case of the prosecution is that on 1st June, 2012 at around 4 pm, one Jalandhar Bhatra (PW 8) called the deceased Raghu Bhatra for consuming liquor. While PW 8 returned home, the deceased did not. Despite search by the son of the deceased and other villagers, the deceased could not be located. Then on the following morning, when the son of the deceased asked PW 8 about his father, PW 8 disclosed that on the previous evening while they were returning after consuming liquor, both the accused caught hold of the deceased, dealt him knife blows around the neck causing his death. PW 8 then led the son of the deceased to the spot and showed the patches of blood lying on the ground where the occurrence took place. However, the dead body of the deceased was not available there.

Thereafter, the son of the deceased went to the Kodinga Police Station (PS) and tendered a written report about the incident. In the course of investigation, the Investigating Officer (IO) examined the informant and other witnesses, visited the spot, seized the sample earth, blood stained earth and one pair of sandals of the deceased from the spot. In the course of the search, the IO found the dead body of the deceased at a distance of about 2 km away from the spot. It was kept inside a gunny bag. The IO then held an inquest over the dead body and sent it for post-mortem examination.

On the same day, the IO arrested both the Appellants. The knife used in commission of the offence was purportedly concealed by them inside the forest and they offered to get it recovered. Later, the wearing apparels of the two accused were also collected from their houses and forwarded to the Court. The wearing apparels of the deceased were also collected after the post-mortem examination.

Dr. Hrusikesh Satapathy (PW16), who was the Medical Officer (MO) at the Kosagumuda Community Health Centre conducted the autopsy over the dead body of the deceased. He noticed the following injuries:

"External injuries :

i) Cut throat injury of size 6x2x2 inches extending from right angle of mandible to the left angle of mandible;

ii) Stab wound of size 2x1x1 inches over left cheek;

iii) Stab wound of size 2x1x1 inches over right cheek;

iv) Lacerated injury of 2x2 inches over right posterior angle of neck.

Internal injuries :

On dissection it was found that large vessels of the neck were torn. So also larynx was torn."

PW 16 opined that all the injuries were ante-mortem in nature and that the nature of death was homicidal. After completion of the investigation, a charge-sheet was laid against both the accused and charges were framed against each of them for the aforementioned offences. They pleaded not guilty and claimed trial.

The prosecution examined 16 witnesses. None was examined for the defence.

PW 6 is the son of the deceased, who lodged the F.I.R. PW 8 was the sole eye-witness to the occurrence. PWs 1, 2, 4 and 5 were co-villagers of the deceased. PWs 9, 10 and 11 were co-villagers of the deceased before whom PW 8 narrated the incident. PW 9 was a witness to the disclosure made by the Appellants and to the seizure of various material objects.

Since the criminal appeal is in effect the continuation of the trial, the Court has perused the entire evidence. This was a case of direct evidence with there being one eye-witness i.e. PW 8. The Court therefore proposes to first discuss at some length the evidence of PW 8. He was clear in his chief examination that he was the eye-witness to both the Appellants inflicting knife blows on the neck of the deceased. The statement of this witness that "on seeing the incident I ran away out of fear" is the natural course of events. This lends credibility to the evidence of PW 8. Even otherwise, the cross-examination of PW 8 did not yield much for the defence. In particular, no doubt was able to be created about PW 8 being an eye-witness to the incident and being able to clearly identify the Appellants as the assailants. The following portion of the deposition of PW 8 is relevant in this regard:

"xxx. It is not a fact that on the relevant night I killed Raghu and to escape from my criminal liability I falsely implicated the accused persons to be the murderers of the deceased. I have not seen both the accused persons proceeding from their houses to the jungle at the relevant time. Both of them had concealed themselves inside the jungle prior to our arrival. It is not a fact that no such occurrence has taken place and the accused persons have not killed Raghu and that I am deposing falsehood.xxx"

The law in relation to direct evidence of even one independent eye-witness being sufficient to sustain the conviction, is well settled. It is trite that it is not the quantity but the quality of the evidence that is material.

In Mohamed Sugal Esa Mamasan Rer Alalah v. The King, AIR 1946 PC 3, Lord Goddard, speaking for the Board stated:

"Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence."

11.1 In Vadivelu Thevar v. State of Madras AIR 1957 SC 614, referring to Mahomed Sugal, this Court stated:

"On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

11.2 Quoting Section 134 of the Evidence Act, it was held in Vadivelu Thevar (supra) that "we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated." The Court held:

"It is not seldom that a crime had been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."

11.3 The Supreme Court in Vadivelu Thevar (supra) further noted:

"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 entirely reliable."

In Shivaji Sahebrao Bobade v. State of Maharashtra (1973) 2 SCC 793, the Supreme Court observed:

"It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs."

In Anil Phukan v. State of Assam (1993) 3 SCC 282, the Court held:

"Indeed, conviction can be based on the testimony of a single eye witness 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 eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a 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 eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."

In Kartik Malhar v. State of Bihar (1996) 1 SCC 614 after referring to several cases, the Supreme Court stated:

"On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence."

In Chittar Lal v. State of Rajasthan (2003) 6 SCC 397, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohamed Sugal and reiterating the law laid down therein the Supreme Court held:

"The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact."

Added to the above factor as pointed out by the trial Court, the evidence of PW 8 is fully corroborated by medical evidence. There were cut wounds on the neck and left cheek. Since there were multiple knife wounds, this was not a case of sudden provocation as was sought to be suggested by learned counsel for the Appellants. PWs 6, 10 and 11 specifically deposed that the PW 8 had disclosed before them the accused had inflicted knife blows to the deceased. It was argued by learned counsel for the Appellants that there was a delay in PW 8 disclosing this fact to the aforementioned witnesses and that this rendered his version unreliable. This too has been negatived by the trial Court by the following analysis with which this Court concurs:

"xxx. It appears from his evidence that on the relevant night he was frightened by seeing the incident. Therefore, in such state of mind, it was quite natural on his part to keep silence on that night without disclosing the incident to anyone. Hence, in the facts and circumstances of the case the disclosure of the incident by the P.W.8 on following morning of the incident cannot be considered as delay in disclosure of the incident."

The mere absence of blood stains on the wearing apparels again will not weaken the prosecution case in a matter of this kind. Further, as rightly pointed out by PW 16, who conducted the autopsy, the injuries inflicted on the dead body of the deceased could have been caused by the knife. As regards motive, as correctly held by the trial Court as under:

"xxx but where direct evidence is available, which is worthy to rely, motive loses its significance. Motive in criminal cases based on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. Hence, in the present case, where there is direct evidence available against the accused persons and such evidence is found to be worthy of credence, absence of motive to commit the crime is of no consequence.xxx"

With PW 8 standing firm and the evidence of PWs 6 and 14 proving the recovery of the dead body being found in a gunny bag at a distance of 2 kilometers away from the spot support the conclusion reached by the trial Court that the two Appellants in furtherance of their common intention removed the dead body and threw it at a further distance in order to make the evidence disappear.

Consequently, the Court finds no reason to interfere with the impugned judgment and order of the trial Court. The appeal is accordingly dismissed, but in the circumstances, with no order as to costs.

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