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CASE NO.:

Appeal (crl.) 62 of 2004

PETITIONER:

Yakub Ismailbhai Patel

RESPONDENT:

State of Gujarat

DATE OF JUDGMENT: 31/08/2004

BENCH:

K.G. Balakrishnan & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

The present criminal appeal arises out of the judgment and order dated

29.08.2003 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.

327 of 1998 wherein the High Court confirmed the conviction of the Appellant along

with two other co-accused for offence under Section 302 read with Section 34 of the

I.P.C. and sentenced them to imprisonment for life.

The brief facts of the present case are as under:

On 25.08.1995 at about 13.15 hrs. the Ahmedabad Railway Police received a

Vardhi from one Abdulmajid that a knife blow has been inflicted on Nazim at Kankaria

Loco Shed. On the strength of the said entry, Police Sub-Inspector went to the scene

of occurrence, prepared inquest report of dead body and also drew panchanama of

scene of occurrence. In the meantime, at about 17.40 hrs. complaint was given by

Munna @ Gheti Mohamadshafi Shaikh. In the said complaint, it is stated that he

happens to be a friend of Nizamuddin Ismailbhai (deceased) for the last 15 years and

the said Nizamuddin has been allotted one quarter in B scale colony of Kankaria

railway colony, but he was not residing there. He gave the quarter to his relative.

Nearby the quarter of Nizamuddin, Yakubbhai Patel (accused No.1) was residing. The

Complainant also used to visit the said quarter along with Nizamuddin. On 24.08.1995,

there was altercation and quarrel in between accused No.1 and deceased in respect to

the said quarter, as he wanted to get it evicted. On 25.08.1995, the day of the incident,

while the said Munna @ Gheti was returning from the house of his friend, somewhere

near Kankaria railway colony, he saw accused No.1 and accused No.2 along with other

person. They were running. There was Jamaiya (kukari) in the hands of accused

Nos.1 and 2. Therefore, he went towards the fuel room of diesel shed, where he saw

the dead body of Nizamuddin in a pool of blood lying near the railway track. One Raju

was also there. In the inquiry, he could gather from the said Raju that accused No.1

and 2 along with one another person had inflicted injuries on the person Nizamuddin

and thus has resulted into death. The said Munna had also seen the injury on the

throat and on the face of Nizamuddin.

During investigation, police recorded the statements of witnesses, panchanamas

were drawn in respect of the clothes of the deceased, discovery of weapons at the

instance of the accused persons and post mortem note of the deceased was collected.

Incriminating articles were also collected for having scientific examination. Police

arrested accused Nos. 1 and 2 and Tapan @ Tondi Shashdhar accused No.3 on

19.09.1995. After completion of investigation, accused came to be charge-sheeted on

16.12.1995 before the Metropolitan Magistrate, Court No.5, Ahmedabad. The said

charge-sheet was for the alleged offences punishable under Sections 302 and 304 of

the I.P.C. and Section 135 of the Bombay Police Act. It was numbered as Criminal

Case No. 2833 of 1995. The Metropolitan Magistrate, in turn, committed the said

Criminal Case No. 2833 of 1995 of his file to the Court of Sessions Ahmedabad on

01.02.1996 and it was numbered as Sessions Case No. 101 of 1996. Charge was

framed against all the three accused. They pleaded not guilty to the charges and

claimed to be tried.

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The prosecution, in order to prove the charge against the accused, examined 14

witnesses and also relied on documentary evidence which consisted of FIR,

Panchanama of place of incident, recovery of weapons panchanama from the present

appellants. The appellants have also examined D.W. 1 Munna @ Gheti

Mohammadsami Shaikh and produced documentary evidence.

After the prosecution case was over, the appellants were questioned with regard

to the evidence led by the prosecution against them and their statements were

recorded under Section 313 of the Code. In their further statements, all the appellants

have denied the alleged part played by them in the commission of the offence.

However, they gave application to examine the Complainant Munna @ Gheti

Mohammadshafi Shaikh as defence witness.

The Additional Sessions Judge, after appreciating the oral and documentary

evidence and arguments advanced by the respective counsel for the prosecution as

well as the defence, held that on the day of incident i.e. 25.08.1995 all the appellants

had common intention to kill the deceased. It was further held that the deceased

Nizamuddin died a homicidal death. In the light of this, the Additional Sessions Judge

convicted all the appellants and sentenced them, as stated above, which has given rise

to the appeal before the High Court. The High Court, after considering the entire

evidence and the facts and circumstances of the case, found themselves in complete

agreement with the reasoning and findings of the Sessions Judge and dismissed the

appeal and gave liberty to the trial Court to proceed against the witness Munna @

Gheti under Section 344 of the Cr.P.C. Aggrieved by the order of the High Court, the

appellant has preferred the special leave petition before this Court. Leave was granted

on 12.01.2004.

We heard Mr. Huzefa Ahmadi, learned counsel appearing for the Appellant ably

assisted by Mr. Nakul Dewan and Mr. Ejaz Maqbool and Mr. Madhukar, learned

counsel for the Respondent ably assisted by Ms. Sadhana Sandhu and Ms. Hemantika

Wahi. We have been taken through the pleadings, the evidence let in and the

documents produced by learned counsel appearing on either side.

Mr. Huzefa Ahmadi, learned counsel appearing for the appellant, made the

following submissions:

a) the Courts below have relied upon the sole testimony of PW-2 and,

therefore, no reliance can be placed on the statement of PW-1;

b) the Courts have disbelieved the statement of PW-1 and have based

the conviction solely on the ocular testimony of PW-2;

c) No other eye-witness supports the case;

d) In any event, it is evident that the statements of PW-1 and PW-2, far

from establishing their respective presence near the railway tracks

are, in fact, contradictory. In order to establish the above contention,

learned counsel for the appellant drew our attention to the following

extract from the judgment of the High Court:

"Thereafter, he saw the body of deceased Nizamuddin lying in a pool of

blood. He saw Raju standing near the body for Nizamuddin. Raju told the

witness that Yakub Patel and other accused persons gave blow to

Nizamuddin and ran away. Subsequently, Raju and witness went to police

station to lodge complaint which is given mark 10/1.

The witness came after some time and he saw the body of Nizamuddin at a

distance of 200 ft. from the office. He did not see any blood on way to his

office. Munna @ Geti was standing near deceased Nizamuddin before

witness went there."

According to learned counsel for the appellant, the following is evident

from the above extract:

? There is clear dichotomy between the statements of PW-1 and PW-2 as

regards who was there first at the railway tracks near the body;

? If, indeed, the sole eye-witness PW-2 is to be believed, then it is PW-1

who reached the railway tracks first and not vice versa. Therefore, PW-

1's statement that he had seen three persons running away while he was

approaching the railway tracks and that he was told by PW-2 that said

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persons killed the deceased is wholly unbelievable.

Learned counsel for the appellant further submitted that no T.I. Parade was

conducted for accused No.1. Learned counsel also pointed out the discrepancy

between medical and ocular evidence. It was submitted that while the witnesses

deposed that the accused had used jamiyas/kukaris which are blunt edged weapons,

the medical evidence and the wounds show that sharp edged weapons were used.

Learned counsel drew our attention to pages 17, 19, 22 and 23 of Volume-I of the

paper-book.

It was further submitted that the weapon of offence was alleged to be

kukari/jamiya which is a blunt weapon whereas the medical evidence shows that there

were as many as 24 wounds caused by the sharp edged weapons. It was, therefore,

submitted that the High Court in view of the discrepancy between the medical and

ocular evidence ought not to have relied upon the ocular evidence to convict the

accused.

The learned counsel brought to our notice the following discrepancies in the

case of the prosecution:

STATEMENT OF PW-2:

The case of PW-2 is that on the request of the deceased, he accompanied the

deceased to his office in order to enable the deceased to file a sick note. However,

PW-2 had stated in his deposition that the deceased had not signed the muster roll,

which the High Court has recorded as under:

"When they went to diesel shed on scooter, Nizamuddin did not sign the muster

roll".

The statement of PW-2 is, however, belied by the fact that the muster roll was

signed by the deceased. The High Court has recorded this as under:

"As per muster roll exh. 66 it is clear that on 25.08.1995 the deceased was

present on his duty."

He would submit that in view of the High Court noting the discrepancy, it ought

not to have continued to place reliance on the statement of PW-2.

It was further submitted that PW-2 is not an employee of the railway and

otherwise not a person who would ordinarily be at the scene of the offence. It was his

submission that because the deceased was sick, at 7.30 AM he took the deceased to

drop a sick note. The case of the prosecution is that both the persons were at one

office for two and a half hours and then in another office for another two and a half

hours and were, therefore, together from 12.30 AM to 1.00 PM when the alleged

incident took place.

According to learned counsel for the appellant, it is inconceivable to believe that:

i. A person who is sick and needs to be taken to office by a friend in

order to drop a sick note, will continue to remain present in office;

ii. Even if the deceased had, in fact, decided to stay on, it is unbelievable

that his friend would continue to remain with him and not attend to his

daily work.

iii. Lastly, it is not as if the case of the prosecution is that the deceased

had changed his mind about the sick note, or that he was feeling better

on reaching his office. PW-2 has stated that the deceased did not sign

the muster roll, a fact which has not proved to be untrue.

SCENE OF THE OFFENCE:

In the deposition of PW-12, Police Sub-Inspector, the scene of the offence has

been stated to be between two railway tracks. According to learned counsel for the

appellant, this is contrary to the deposition of PW-2, who states that the deceased was

attacked in the diesel shed 200 meters away. Learned counsel invited our attention to

appreciate the deposition of PW-12, the Investigating Officer.

He has admitted that Fuel Room, gate of Fuel Room and the tracks of railway

are distinct places. He volunteers that though, it may be called distinct, but it is nearby

.

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He has admitted that no blood sample was obtained from the Fuel Room. He has

admitted that he has not shown date and time of preparation of report exh. 48 when he

reached at Loco Diesel Shed, dead body was not there. Dog squad was available

however no trace was found out.

According to the learned counsel for the appellant, there is no explanation of

how the body came to be found 200 meters away. No investigation was done on that

behalf and even the dog squad could not determine the trace. Therefore, it is

submitted that the prosecution version is not believable.

NO OTHER EYE-WITNESS SUPPORTS THE CASE:

Learned counsel for the appellant submitted that PW-2 in his deposition has

stated that there were four other railway employees who were present at the scene of

offence and, therefore, their deposition becomes necessary for unfolding the narrative.

In the present case, out of the four other alleged eye-witnesses, the prosecution

only called upon PW-3 and PW-9 to depose as eye-witnesses and even these two eye-

witnesses did not support the case of the prosecution. Thus it is submitted that the

failure of the prosecution to call all material witnesses leads to an adverse inference

against the prosecution under Section 114: illustration (g) of the Indian Evidence Act.

THE STATEMENT OF P.W.1 IS UNRELIABLE:

The learned counsel for the Respondent submitted that the statement of PW-

1 supports the case in identifying the accused persons. It was also his submission that

the statement of PW-1 established the presence of PW-2 at the scene of the offence.

According to learned counsel for the appellant, the said submission is devoid of merits

for the following reasons:

a) the Courts below have relied upon the sole testimony of PW-2 and,

therefore, no reliance can be placed on the statement of PW-1 at this stage;

b) the Courts have disbelieved the statement of PW-1 and have based the

conviction solely on the ocular testimony of PW-2;

c) In any event, it is evident that the statements of PW-1 and PW-2, far from

establishing their respective presence near the railway tracks are, in fact,

contradictory.

The learned counsel for the appellant made two legal propositions for

consideration of this Court:

(1) THE TESTIMONY OF A SINGLE EYE-WITNESS MUST BE ENTIRELY RELIABLE

FOR A CONVICTION:

According to Mr. Huzefa Ahmadi, the test for relying on the testimony of a sole

eye-witness is based on the rule of caution, expounded by this Court in a catena of

judgments. He placed reliance on the following judgments:

1) Joseph vs. State of Kerala, (2003) 1 SCC 465 which prescribes that the

evidence of other witnesses must corroborate the single eye-witness.

"When there is a sole witness to the incident his evidence has to be accepted

with an amount of caution and after testing it on the touchstone of the evidence

tendered by other witnesses or evidence as recorded. Section 134 of the Indian

Evidence Act provides that no particular number of witnesses shall in any case

be required for the proof of any fact and, therefore, it is permissible for a court to

record and sustain a conviction on the evidence of a solitary eyewitness. But,

at the same time, such a course can be adopted only if the evidence tendered

by such witness is cogent, reliable and in tune with probabilities and inspires

implicit confidence. By this standard, when the prosecution case rests mainly

on the sole testimony of an eyewitness, it should be wholly reliable. Even

though such witness is an injured witness and his presence may not be

seriously doubted, when his evidence is in conflict with other evidence, the view

taken by the trial court that it would be unsafe to convict the accused on his sole

testimony cannot be stated to be unreasonable. Particularly, when the trial

court had given cogent reasons to acquit the accused, the High Court ought not

to have interfered with the same merely because another opinion is possible

and not that the finding concluded by the trial court was impossible. The High

Court did not follow the aforesaid standard but went on to analyse evidence as

if the material before them was given for the first time and not in appeal.

(Paras 12 & 13)

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2) Suresh Chaudhary vs. State of Bihar, (2003) 4 SCC 128

In the above case, this Court while setting aside the sentence of conviction of

two Courts below advocated the Rule of Caution.

3) The Rule of Caution has also been advocated by this Court in Shahbuddin

Abdul Kahlik Shaikh vs. State of Gujarat, 1995 Supp (2) SCC 441.

4) The aforesaid judgments are based on the judgment of this Court in Vadivelu

Thevar etc. vs. The State of Madras etc., AIR 1957 SC 614 wherein this Court has

divided the appreciation of evidence into three categories, namely: (1) wholly reliable;

(2) wholly unreliable; and (3) Neither wholly reliable nor wholly unreliable and thereafter

stated that 'it becomes the duty of the court to convict, if it is satisfied that the testim

ony

of a single witness is entirely reliable'.

5) The above view emerges from the view of the Privy Council in Mohamed Sugal

Esa vs. The King, AIR 1946 PC 3.

"In England where provision has been made for the reception of unsworn

evidence from a child it has always been provided that the evidence must be

corroborated in some material particular implicating the accused. But in the

Indian Act there is no such provision and the evidence is made admissible

whether corroborated or not. 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. It is a sound rule in practice not to act on the

uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule

of prudence and not of law."

Mr. Ahmadi, in view of the above judgments and of the facts stated above,

submitted that the statement of PW-2, sole eye-witness fails to meet the test of 'entire

reliability' and, therefore, cannot be the basis for convicting the accused and that the

testimony of PW-2 to the effect that there were other employees present at the time of

the occurrence is belied by the evidence of two of the said employees, who have

deposed otherwise and, therefore, the evidence of the other two witnesses far from

corroborating the sole eye-witness account in fact belies it.

The learned counsel for the appellant then concentrated on the second legal

proposition, namely, non-production of material witnesses leads to an adverse

inference against the prosecution:

It was contended that it is the duty of the prosecution to produce all material

witnesses and failure thereof leads to an adverse inference under Section 114,

illustration (g) of the Indian Evidence Act, 1857.

This Court in Habeeb Mohammad vs. The State of Hyderabad, [1954] SCR

475 at 490 extracting from the judgment of the Privy Council in Stephen Senivaratne

vs. The King, AIR 1936 PC 289 stated as under:

"Witnesses essential to the unfolding of the narrative on which the prosecution

is based, must, of course, be called by the prosecution, whether in the result the

effect of their testimony is for or against the case for the prosecution."

The above two judgments have been relied upon by this Court in the case of

State of U.P. and Anr. vs. Jaggo Alias Jagdish and Ors. 1971 (2) SCC 42.

It was submitted that while the prosecution is not necessarily required to call

upon each and every witness, it is bound to call all witnesses who are material to the

unfolding of the narrative and failure to do so, leads to an adverse inference. In the

present case, the other two eye-witnesses did not support the prosecution and it can

thus be inferred that the other eye-witnesses would also not support the version of the

prosecution and in these circumstances, the Courts below have erred in relying upon

the sole statement of PW-2 for convicting the accused.

Concluding his argument, Mr. Huzefa Ahmadi, submitted that the accused have

spent over seven years in jail and if this Court is to allow the present appeal, it would

only be trite to allow the appeal qua accused Nos. 2 and 3 who were unable to

approach this Court. For this, the learned counsel for the appellant, relied on the

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judgment of this Court in Suresh Chaudhary's case (supra) wherein relying on

precedents, the Court stated as under:

"This Court in a catena of cases has held where on the evaluation of a case this

Court reaches the conclusion that no conviction of any accused is possible, the

benefit of doubt must be extended to the co-accused similarly situated though

he has not challenged the order of conviction by way of an appeal. [See Bijoy

Singh vs. State of Bihar, (2002) 9 SCC 147]. This Court while rendering the

above judgment has placed reliance on some other judgments of this Court in

Raja Ram vs. State of M.P., (1994) 2 SCC 568, Dandu Lakshmi Reddy vs.

State of A.P., (1999) 7 SCC 69 and Anil Rai vs. State of Bihar, (2001) 7 SCC

318 wherein this Court had taken a similar view. Following the above dictum of

this Court in the judgments noticed by us hereinabove, we are of the opinion

since we have come to the conclusion that no conviction of any accused is

possible based on the prosecution case as presented, it becomes our duty to

extend the benefit of acquittal in these appeals also to a non-appealing

accused, therefore, Sona @ Sonwa Chaudhary who is the first accused before

the Sessions Court in Sessions Trial No. 417 of 1993 and who was the first

appellant before the High Court in Crl. A. No. 88 of 1995 will also be acquitted

of all the charges of which he is found guilty by the two courts below".

Concluding his argument, learned counsel submitted that the prosecution has

failed to prove the case beyond reasonable doubt and, therefore, the accused appellant

ought to be acquitted.

Learned counsel for the State of Gujarat Mr. Madhukar while justifying the

judgments of the Courts below submitted that the body of the evidence produced by the

prosecution against the appellant consisted of the following:-

1. Testimony of eyewitness to the incident (PW-2);

2. Motive;

3. Evidence relating to Recovery of weapons at the instance of the accused;

4. Medical evidence;

5. Absence of accused from railway duty and their arrest only after 24 days of

incident;

After narrating the case of the prosecution and the evidence and documents

produced, he submitted that it has come in the evidence of PW-1 and PW-2 that both

the witnesses were known to the deceased as well as the appellant accused and the

testimony of both these witnesses has been relied upon by the trial Court and the High

Court to base the conviction of the appellant.

He invited our attention to paras 20, 21 and 29 of the High Court's order and

paras 50-53 of the trial Court's order of PW-2 Akbar Khan @ Raju. This witness is an

eye-witness to the incident. The two other eye-witnesses who were examined by the

prosecution turned hostile during the trial and thus this witness was rendered in the

position of being the sole eye-witness. We have perused the evidence of PW-2. It has

given in his testimony that on the fateful day of the incident, he escorted the deceased

to the railway office in order to enable him to place a sick note in the railway office.

PW-2 has specifically stated in that while he has present in the railway office, the

appellant along with the co-accused threatened and attacked the deceased with sharp

dangerous weapons on his neck. It is the version of PW-2 that on witnessing this

ghastly attack, he ran away from the spot out of fear. He came back from the hiding

after sometime and saw the dead body of the deceased while PW-2 was near the body.

He has stated to have met PW-1. In fact, PW-1 who is also the Complainant was

accompanied by PW-2 to the Police Station for lodging of the complaint.

The testimony of this witness, in our opinion, proves and corroborates the

presence of the Complainant PW-1 and vice-versa. PW-2 does not claim to have seen

the entire attack but has categorically deposed about having seen the initial attack by

the appellant and co-accused with sharp edged weapons on a vital organ of the

deceased, namely, the neck.

The testimony of PW-2, in our view, is wholly believable and worthy of inspiring

confidence but is also sufficient by itself to prove the case against the appellant and

that the credibility of this witness has not been impaired in the cross-examination by the

appellant. This witness has stuck to his police statement and the subsequent

examination in chief in Court where he identified the appellant accused as well as the

co-accused as the assailants of the deceased. This deposition, in our view, proved the

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intention of the accused to cause the death of the deceased inasmuch as he deposes

that the assault was directed at the neck of the deceased. It is also not the case of the

appellant that this witness was inimical to the appellant or that there was a reason for

PW-2 to implicate the appellants falsely. The factum of his friendship with the

deceased does not reduce PW-2 to the position of being an interested witness.

The learned counsel for the appellant has argued before this Court as well as

the Courts below that the conduct of this witness in not saving the life of his friend, the

deceased, renders him an improbable witness. In our view, the act of this witness in

running away to save his own life and not going forward to help the deceased at the

time of the incident is a most probable and natural human conduct which most men

faced in such situation would resort to. In our view, the conduct of PW-2 in not having

the courage to stop three persons armed with deadly sharp edged weapons is not and

cannot be a circumstance or a ground to disbelieve his testimony particularly when the

rest of his testimony is tested with cross-examination.

Next we analyse the evidence of PW-1 Munna @ Gheti. Our attention was

drawn to the various paras in the trial Court's order and the High Court's order of this

witness. PW-1's evidence was relied upon by the trial Court and also by the High

Court. The most important feature of the testimony of this witness is that he

corroborates the presence of the eye-witness PW-2 at the spot. It is submitted that in

face of the specific deposition of this witness, the PW-2 was present at the spot the

doubts sought to be raised by the appellant in receipt of the sick note of the deceased

and the subsequent staying back at the office are rendered irrelevant and insignificant.

PW-1 has deposed that he was known to the deceased and the appellant and that

there were altercation on 24.08.1995 between the appellant and the deceased in

respect of the railway quarter. It is the version of this witness that on the day of the

incident he saw the present appellant running away and also saw the deceased in the

pool of blood. Raju was present there. PW-1 has deposed as prosecution witness that

while he was returning from railway colony after meeting his friend at about 12.00 noon

accused Nos. 1 and 2 and one another were being seen by him, they were running

away. PW-1 has identified the appellants and the co-accused in the Court. Thus, it is

clear from the testimony of Munnabhai @ Geti as a prosecution witness that although

he is not an eye-witness of the incident, yet he throws light on the conduct of the

accused on the day of the incident around the time of incident. His testimony together

with the testimony of Investigating Officer corroborates the presence of PW-2 at the

place of the incident.

Significantly this witness, later on filed an affidavit, wherein he had sworn to the

fact that whatever he had deposed before Court as PW-1 was not true and it was so

done at the instance of Police.

The averments in the affidavit are rightly rejected by the High Court and also the

Sessions Court. Once the witness is examined as a prosecution witness, he cannot be

allowed to perjure himself by resiling from the testimony given in Court on oath. It is

pertinent to note that during the intervening period between giving of evidence as PW-1

and filing of affidavit in Court later he was in jail in a narcotic case and that the accuse

d

persons were also fellow inmates there.

It was argued by the learned counsel for the appellant that no identification

parade was conducted for the accused. The Investigating Officer has stated in his

testimony that the test identification parade was not necessary in the instant case. This

apart, both the witnesses PW-1 and 2 have categorically stated in their deposition that

they knew the appellant from the past.

RECOVERY:

It is seen from the records that a weapon of offence has been recovered at the

instance of the appellant from his own house. The testimony of the panch witness PW-

6 in respect of the recovery and the appellant's identity therein has remained unshaken

during extensive cross-examination and blood stains were also seen on the said

weapon recovered at the instance of the accused.

MEDICAL EVIDENCE:

We shall now see the medical evidence. There were as many as 24 injuries on

the dead body of the deceased. The High Court says that all injuries were ante mortem

in nature and death was caused in this case due to haemorrhage and shock as a result

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of multiple injures sustained and that the injuries were caused by sharp edged and

tipped penetrating weapon/weapons. After referring to the Muddamal articles Kukari

and knives, the doctor has observed that the injury could be caused by mudammal

articles kukari and knives. The High Court also specifically held that the ocular version

in this case is not at the loggerheads with the medical evidence.

Certain discrepancies were pointed out by learned counsel for the appellant at

the time of arguments. The learned counsel for the State while answering the said

submission of the counsel for the appellant submitted that according to PW-2, the

duration of attack which he witnessed before he ran away took place at the office and

that there is evidence on record that blood was found at the spot where PW-2 states

that he had witnessed the armed attack upon the deceased. The presence of blood at

the spot where PW-2 states the attack had taken place establishes the correctness of

the version of this witness. In such an event, the mere failure to explain the presence

of the dead body at an adjoining place does not disprove or contradict the prosecution

case and in our opinion is certainly not fatal to the prosecution case.

Learned counsel for the State also made certain submissions on law and, in

particular, the testimony of single eye-witness. Learned counsel for the State relied

upon the legal principles as laid down in Shivaji Sahabrao Bobade and Anr. vs. State

of Maharashtra (1973) 2 SCC 793 (three-Judge Bench) wherein it has been held as

follows:

"\005\005Even if the case against the accused hangs on the

evidence of a single eye-witness it may be enough to sustain the

conviction given sterling testimony of a competent, honest man,

although as a rule of prudence courts call for corroboration. It is a

platitude to say that witnesses have to be weighed and not counted

since quality matters more than quantity in human affairs\005\005."

The legal position in respect of the testimony of a solitary eye-witness is well

settled in a catena of judgments inasmuch as this Court has always reminded that in

order to pass conviction upon it, such a testimony must be of a nature which inspires

the confidence of the Court. While looking into such evidence this Court has always

advocated the Rule of Caution and such corroboration from other evidence and even in

the absence of corroboration if testimony of such single eye-witness inspires

confidence then conviction can be based solely upon it. In the case on hand, the

testimony of the solitary eye-witness stands corroborated by other circumstances and

evidences and more particularly PW-1 whose testimony has been relied upon by both

the Courts.

Learned counsel for the State next answered the submission of the learned

counsel for the appellant in regard to the non-production of material witnesses.

According to him, the witnesses which were necessary should unfold the narrative of

the incident were cited and examined as witnesses. Two of the witnesses to the

prosecution case present at the spot turned hostile. In such a scenario, it cannot be

said that the prosecution must suffer adverse inference for any further non-production.

It is not the case of the appellant that there were certain witnesses who were cited as

witness in the charge-sheet but were later on dropped as witnesses by the prosecution

during the trial. It was also pointed out to us and is pertinent to mention that one of the

witnesses before the trial Court had been granted police protection by the trial Court on

the ground of threats from the accused persons.

In our opinion, the appellant has failed to establish his case of innocence. On

the contrary, the prosecution has proved its case beyond any reasonable doubt. We

are of the opinion that the depositions that was given on record, namely, Akbar Khan @

Raju can be said to be reliable and that there is no reason to disbelieve him so far as

the ocular aspect of the prosecution case is concerned. The witness Akbar Khan

cannot be branded as a related or interested witness because he is merely a friend of

the deceased. There is nothing significant to infer that there was enmity between

himself and accused persons. His conduct appears to be consistent and natural in

accompanying the deceased to his office at loco shed on the date of the incident thus

the testimony of eye-witness Akbar Khan @ Raju cannot be brushed aside. He is

believable and does inspires confidence.

Learned counsel for the appellant pointed out certain discrepancies which, in our

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opinion are trivial in nature but such discrepancies would not affect the case of

conviction imposed on the appellant. The deposition of Dr. Patil who conducted the

autopsy is worth to mention. There were in all 24 external injuries and 3 internal

injuries on the head, chest and abdomen region. According to him, the injuries were

caused by sharp edged deep penetrating weapons the victim had sustained multiple

injuries and owing to the same there was haemorrhage which ultimately resulted into

his death.

The cumulative effect of injuries found on the dead body were sufficient in the

ordinary course of nature to cause death and the injury found out on the neck, a vital

part of the body alone could have caused death. The evidence of the witnesses and

the evidence on record sufficiently and convincingly upholds the narrative of the guilt of

the appellant.

We, therefore, find ourselves in complete agreement with the reasoning and

findings of the learned trial Judge and of the High Court. Therefore, the present appeal

deserves to be dismissed and accordingly it is dismissed.

Before taking leave of the case, we would like to advert to the argument of the

learned counsel for the appellant on the question of sentence. He submitted that the

accused had spent over seven years in jail. He relied on the judgment of this Court in

Suresh Chaudhary vs. State of Bihar (supra). The above judgment is to the effect

that if no conviction of any accused is possible, the benefit of doubt must be extended

to the co-accused similarly situated though he has not challenged the order of

conviction by way of an appeal.

In the instant case, we have come to the conclusion that the conviction and

sentence imposed by the Courts below are correct and, therefore, the acquittal is not

possible. We also hold that the prosecution has proved the case beyond any

reasonable doubt. It is true that an order of sentence purely falls in the realm of judicia

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discretion and the prosecuting State is only duty bound to endeavour that the guilty had

tried and convicted in accordance with law.

In the present case, the guilt of the appellant has been convincingly established.

We are, therefore, unable to countenance the submission made by the learned counsel

for the appellant on the submission of sentence.

The appeal fails and is therefore dismissed. The appellant to serve the

remaining period of sentence.