Kanwaljit Singh Ahluwalia, J@mdashAs per prosecution case, on 19th of November, 2003 at 02:00 A.M. in the Revenue Estate of Village Payali Road, falling within the jurisdiction of Police Station, Suket, in the land of Prem Lakhara, which was on lease with Aziz, the deceased and his wife Smt. Mutthobai (PW-7), five-persons trespassed into their house and committed dacoity. They took away Rs. 1000/- from the pocket of Aziz and two silver bangles, Article-1 and Article-2, belonging to Smt. Mutthobai (PW-7), wife of Aziz.
2. On the night of occurrence itself, Aziz died. Smt. Muthobai (PW-7) on the night of alleged occurrence at about 04:00 A.M. made an oral statement (Exhibit-P/30) before Devesh Bhardwaj (PW-16), who was then posted as Station House Officer, Police Station, Suket.
3. On the basis of above said statement (Exhibit-P/30), a formal First Information Report (Exhibit-P/17), bearing registration No. 241/2003 was registered at Police Station, Suket, District Kota.
4. As stated earlier, the criminal proceedings, in the present case, were set into motion, on the basis of oral statement (Exhibit-P/30) made by Smt. Mutthobai (PW-7) before Devesh Bhardwaj (PW-16), who was then posted as Station House Officer, Police Station, Suket.
5. The oral statement (Exhibit-P/30) when translated into English reads as under:--
"At this time, Smt. Mutthobai wife of Aziz, by caste Musalman, aged forty-five years, resident of Lanka-talai, Julmi Road, Suket, along with her nephew, Rashid S/o. Ramzanbhai, aged twenty-one years, resident of Lanka-talai, Julmi Road, Suket came in an injured condition at Police Station and the oral statement of Smt. Mutthobai has been recorded as under:--
"That for last two years, we are cultivating the land of Prem Lakhara, situated at Payali Road. Yesterday in the night at 11:00 P.M., I and my husband, Aziz had gone to guard the field at Payali Road. We both slept on the top floor of the quarter. In the night at about 02:00 A.M., I woke up due to injury on my head, and saw that there were five persons among whom one had sword and other four were armed with sticks. Out of said persons two started fighting with me and others started fighting with my husband armed with lathis. My husband became unconscious due to injury caused on his head. One of them, took away Rs. 1000/- out of the pocket of my husband. He asked me to handover the cash to which I refused, then they all brought me to the room down stairs and they removed two silver bangles from my hand. Thereafter, they tied my one hand with the rope and were demanding cash. When I denied having anything more, they bolted the door from the outside of the room and decamped from the spot. I cut the rope with the sickle lying in the room, went upstairs and try to give water to my husband, but due to injuries caused, he had died. The blood was oozing out of his head. Thereafter, I jumped from the roof and went to my house and narrated the entire incident to my nephew - Rashid. All of accused were wearing pant and shirt. They all were young. I can identify them, in case they are brought before me."
6. After about five months of alleged occurrence i.e. on 24.04.2004 Investigating Agency took production warrants of four accused, namely (i) Mahendra, (ii) Lekhraj, (iii) Hansraj @ Dinesh and (iv) Satyanarayan and a formal arrest to this effect was effected vide Exhibit-P/31 to Exhibit-P/34 respectively. Another accused, namely Chauthmal was arrested on 07.05.2004 vide Exhibit-P/40.
7. In the present case, Investigating Agency, during investigation named Satyanarayan S/o. Nathulal, Hansraj @ Dinesh S/o. Madan Lal, Mahendra S/o. Kishan Lal, Lekhraj S/o. Gogaram and Chauthmal S/o. Ramratan as accused.
8. A report of investigation was submitted against the appellants under Section 173 of Code of Criminal Procedure, 1973. The appellants, along with the report of investigation were committed to the Court of Sessions for trial and the trial was entrusted to the Court of Additional Sessions Judge, Ramganjmandi, District Kota.
9. The said Court, vide its impugned judgment dated 31.01.2007, acquitted accused, Chauthmal, but held appellants, Satyanarayan, Hansraj @ Dinesh, Mahendra and Lekhram guilty for commission of offence punishable under Section 396 of Indian Penal Code, and vide a separate order of even date, sentenced them to undergo life imprisonment and to pay a fine of Rs. 1000/- each. In default of payment of fine to further undergo one month simple imprisonment.
10. Aggrieved against the conviction and sentence, all these four accused have instituted the present appeal under Section 374 of Code of Criminal Procedure, 1973, praying inter alia that their conviction and sentence, be set aside, and they be acquitted of the charges leveled against them.
11. Suffice it to say, prosecution to secure conviction of the appellants, in all, had examined twenty-witnesses and relied upon forty-two documents (Exhibit-P/1 to Exhibit-P/42).
12. The statement of accused were recorded under Section 313 of Code of Criminal Procedure, 1973. They denied all the incriminating evidence put to them and pleaded innocence.
13. In defence, accused had not examined any witness. However, they had placed reliance upon Exhibit-D/1 and Exhibit-D/2 (identification of goods).
14. We shall first take note of Medical Evidence.
15. On 19.11.2003, Dr. Babu Lal Meena (PW-11), being posted as Medical Officer at Community Health Centre, Ramganjmandi, along with Dr. Narendra Bhusan Joshi on the request of Incharge, Police Station, Suket, had conducted autopsy on the body of Aziz.
16. It is not necessary to reproduce the injuries given in the Post Mortem Report (Exhibit-P/21), as the cause of death of Aziz by violence, is not disputed before us.
17. In the post-mortem report, four injuries were found on the person of deceased, Aziz. His mandible was fractured and as per opinion of the Medical Board, the cause of death of deceased was neurogenic shock and coma.
18. Dr. Gauri Shankar Chouhan (PW-20) on 19.11.2003 at 09:40 A.M. conducted medico-legally examination of Smt. Mutthobai (PW-7) and found one blunt injury on her forehead. The Injury was declared as simple in nature. Injuries noticed in the Injury Report (Exhibit-P/42) are reproduced below:--
"1. Lacerated wound 2"x 1/2" x 1/4" oblique mod of forehead.
2. Complain of pain seen pain right side of neck."
19. In cross-examination, Dr. Gauri Shankar Chouhan (PW-20) admitted that if somebody had fallen from the roof the possibility, that injury was suffered on that account cannot be ruled out.
20. The prosecution case rest upon the testimony of the solitary injured eye-witness, Smt. Mutthobai (PW-7).
21. Before we notice testimony of Smt. Mutthobai (PW-7), we shall have a quick glance over the testimony of other prosecution witnesses.
22. Jafar Mohd (PW-1) had attested memo Exhibit-P/2, whereby possession of blood smeared pant and shirt of the deceased was taken by the Police. This witness also attested memo Exhibit-P/3, whereby dead-body was handed over to Firoz (PW-5), the son of the deceased and complainant.
23. Hamid (PW-2) had also attested memo whereby blood smeared pant and shirt of the deceased were taken into possession by the Police vide memo Exhibit-P/2. This witness also attested memo Exhibit-P/3, whereby dead-body was handed over to Firoz (PW-5), the son of the deceased and complainant.
24. Ramchandra @ Prem (PW-3) deposed in the Court that he has land at Village Payali. He had given the said land on lease to Smt. Mutthobai (PW-7) and her husband Aziz.
25. Bashirbhai (PW-4) had attested inquest/panchnama vide Exhibit-P/1 and site-plan of the spot vide Exhibit-P/4.
26. Firoz (PW-5), the son of deceased while stepping into the witness box stated that on the night of alleged occurrence, her mother came and disclosed the entire incident. She narrated the fact that her bangles have been removed and the cash of Rs. 1000/- has been taken away from the pocket of his father.
27. Prahlad Kumar (PW-6), being photographer had taken photographs of the spot.
28. Anwar (PW-8) had attested the site-plan of the spot (Exhibit-P/18) and further deposed that he is not aware, whether the photographs of the spot were taken by the Police or not.
29. Out of five accused, named during investigation, Chauthmal, the acquitted accused, had made a disclosure statement under Section 27 of the Indian Evidence Act vide Exhibit-P/42 on 10.05.2004 and stated that he had concealed silver bangles belonging to Smt. Mutthobai (PW-7) in his house. The silver bangles were recovered vide memo Exhibit-P/22. The said memo was attested by Ramgopal (PW-13) and Mukesh Rathore (PW-14), who turned hostile to the prosecution case.
30. Hansraj @ Dinesh, in the disclosure statement under Section 27 of the Indian Evidence Act (Exhibit-P/39), stated that he concealed a silver bangle of complainant Smt. Muttubai (PW-7) in his house. The silver bangles were recovered vide memo Exhibit-P/19. The said memo was witnessed by Rambabu (PW-9) and Ramesh Chand (PW-18). Both the witnesses have turned hostile and have stated that nothing was recovered in their possession.
31. Krishana Kanhaiya Goyal (PW-19), who was then posted as Tehsildar had carried identification of silver bangles vide Exhibit-D/1 and Exhibit-D/2. He stated that Smt. Mutthobai (PW-7) had identified her two bangles, which were mixed with other similar bangles.
32. Shivraj (PW-17) had carried the investigation. He deposed regarding various facets of investigation, including the fact that through production warrants he effected the arrested of the accused and furthermore, during investigation, got a silver bangle each recovered from the possession of Hansraj @ Dinesh and Chauthmal, accused. He had also presented an application (Exhibit-P/28) before Judicial Magistrate, Kota for carrying test identification proceedings of the accused.
33. Ramakant Sharma (PW-15), was posted as Judicial Magistrate, Kota, he on receipt of the application (Exhibit-P/28) from Investigating Officer had carried test identification proceedings (Exhibit-P/23 to Exhibit-P/27). This witness stated that he had mixed all the four accused, along with thirty-five other inmates of jail having similar features.
34. In the present case, occurrence had taken place on 19.11.2003, the accused were arrested on 24.04.2004. The test identification proceedings were carried on 01.06.2004. Thus, test identification proceedings were carried after more than six months of the occurrence, and one month and six-days after the arrest of the accused.
35. Now we shall deal with the testimony of star witness Smt. Mutthobai (PW-7).
36. Smt. Mutthobai (PW-7) in the Court stated that it is correct that she along with her husband Aziz, deceased had retired in the night for sleep in a room after bolting the doors. Since November is month of winter, it is expected that the doors of the rooms shall be bolted. She stated in the Court that when they retired to the bed, they had switched off the light.
37. To be precise, this witness stated that
38. This witness (PW-7) further stated that an electricity bulb in front of the well and outside the room was emitting light. She further stated that the well is at a distance of ten feet. The exact words are that
39. This witness (PW-7) further stated that after causing her injuries, the accused brought her down stairs. She saw their faces, there were five accused, but she could not tell as to whether how long the hairs of accused were and whether they were having any moustaches or beard. She simply said that they were wearing pant and shirt, but she could not tell about the colour of pant or shirt.
40. To be precise, witness stated as under:--
41. In cross-examination, this witness (PW-7) admitted to be correct that regarding presence of electricity on the well. She had not stated this fact in her statement (Exhibit-P/30) that the light being emitted from the well.
42. The exact words are that
43. Admittedly, the accused were not known to the solitary witness, Smt. Muttubai (PW-7).
44. Bashir Bhai (PW-4), in cross-examination, admitted that when inquest proceedings were prepared on the date of occurrence, Investigating officer had disclosed the names of Satyanarayan, Lekhraj, Hansraj @ Dinesh and Mahendra. This witness further admitted that when accused were arrested, he and his sister, Smt. Mutthobai (PW-7) and son of deceased had gone to the Police Station. The Investigating Officer had shown all the accused, who were arrested.
45. The following portion in vernacular from the cross-examination reads as under:--
46. It is amazing that even though occurrence had taken place on 19.11.2003, Investigating Officer, Shivraj (PW-17) took production warrants of the accused on 24.04.2004. The said Investigating Officer has not stated as to how the name of accused surfaced during the investigation. Whether he got any secret information about the names of the accused or the accused had admitted their guilt, during interrogation of other cases in which they were allegedly arrested, one is left to the guess work as prosecution case totally silent on this score.
47. What was the basis for the Investigating Officer to arrive at a conclusion that offence has been committed by five-accused and to how he recorded the names of the accused, nothing has been shared by the Investigating Officer. The Court has to grope in the dark as to how Investigating Officer received any information or derived any knowledge regarding the involvement of the accused.
48. Be that as it may, admittedly identification of the accused was carried after more than six months of occurrence, and one-month and six-days after the arrest.
49. In the present case, during investigation, the witness (PW-7) has not narrated the feature or marks of identification of the accused. She is silent regarding height, colour, complexion their gait, their body built as to whether accused were fat or thin. Suddenly, she had identified the accused after six months. Whether the witness could have such a long retention regarding faces of accused, the Court has to be circumspect and should be on guard while examining the evidence of the witness, where extra-ordinary delay has occurred.
50. The Hon''ble Apex Court in the case of
51. In the case of
52. In the present case, admission made by Bashir Bhai (PW-4) that the accused were shown in the Police Station to demolish the witnesses, including his sister Smt. Muttobai (PW-7), the entire case of the prosecution regarding the identification.
53. We cannot become oblivious of the fact that Smt. Mutthobai (PW-7) is a solitary witness.
54. Hon''ble Apex Court in the case of
"Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has 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. Hence, in our opinion, it is a sound and well- established 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.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-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 entirely 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."
55. There is no doubt that so far as occurrence is concerned, Smt. Mutthobai (PW-7) is a reliable witness. However, so far identification of the accused is concerned, we hold it to be doubtful and not worth reliance. Furthermore, in the present case, no corroboration is coming forward to the test identification proceedings carried by the Magistrate.
56. Smt. Mutthobai (PW-7) in the Court stated that she had identified four persons in Kota jail and the accused are present in the Court. The trial Judge has not carried the identification of each accused in the Court, which is a substantive piece of evidence as test identification proceedings are only corroborative in nature.
57. In cross-examination, this witness stated that she had identified one Girraj. She further stated in the Court as under:--
58. Taking totality of the circumstances, enumerated above and considering the fact that the accused were shown to the witness in the Police Station, we are of the firm view that the prosecution has failed to prove the identity of the accused.
59. Having held that prosecution has failed to establish identity, we are left with the recovery effected from the two accused, namely Chouthmal and Hansraj @ Dinesh. Chauthmal was acquitted by the trial Judge by holding that two witnesses to recovery memo (Exhibit-P/22) have turned hostile to the prosecution in the Court. Chauthmal was also acquitted because he was not identified by the witness, Smt. Muttobai (PW-7), during identification. Besides Chauthmal, another silver bangle was recovered from Hansraj @ Dinesh vide memo Exhibit-P/19 and the said memo was attested by Rambabu (PW-9) and Ramesh Chand (PW-18). Both the witnesses have also turned hostile to the prosecution case.
60. Accepting the same analogy, as given by the trial Court, we are of the view that the recovery cannot be relied against Hansraj @ Dinesh, as witnesses to recovery have turned hostile to the prosecution. Even otherwise disclosure statement (Exhibit-P/39) made by Hansraj @ Dinesh is not attested by any witness. Relying upon the judgment of Hon''ble Apex Court in the case of
"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in
61. Thus, taking totality of circumstances for not proving the recovery of silver bangle recovered in pursuance of recovery memo (Exhibit-P/19) from accused- Hansraj @ Dinesh and also not for establishing the identity of all the accused-appellants, we shall give the benefit of doubt to the present appellants, as a matter of abundant caution.
62. Consequently, the present appeal is accepted. The conviction and sentence of the appellants is set aside and they are acquitted of the charges.
