STATE OF MAHARASHTRA versus DINESH

[2018] 2 S.C.R. 515

STATE OF MAHARASHTRA

DINESH

(Criminal Appeal Nos. 1871-1873 of 2013)

FEBRUARY 07, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – Murder and destruction of evidence –Prosecution alleged that accused no.1 committed murder andaccused no.2-respondent destroyed the evidence by cutting thecorpse of the deceased into pieces and disposing them –Trial Courtconvicted accused no.1 u/s. 302 and s. 201 r/w. s.34 and accusedno.2-respondent u/s. 201 r/w. s.34 – High Court acquitted both theaccused persons – On appeal, held: State failed to furnish correctaddress of the accused no.1 for effecting service in the criminalappeals – Consequently, criminal appeals against accused no.1dismissed for non-prosecution – Insofar as accused no.2-respondentis concerned, on perusal of the evidence on the record, out of 23prosecution witnesses, the evidence of PW-7 was crucial as she waspresented as the sole eye-witness who had seen the accused no.2-respondent along with accused no.1, cutting the corpse of thedeceased into pieces – When the entire case hinges on the evidenceof sole witness, paramount duty is cast on the Court to carefullyscrutinize such evidence and find out whether such evidence is worthcredence or not – According to PW-7, her husband also witnessedthe crime, but they could not identify whether the accused werecutting into pieces the body of dead person or an alive person –Even after watching the brutal crime, neither PW-7 nor her husbandhad raised hue and cry in the vicinity which was stated to be thicklypopulated, but they went to sleep peacefully – Unnatural mannerin which PW-7 kept quiet for one and half month after witnessingsuch brutal crime – Further, husband of PW-7 was neither examinedby the police at the time of investigation nor was examined beforethe Court and no satisfactory explanation for his non-examinationwas found from the records – Apart from that, neither testidentification parade was conducted nor any steps were taken toprove the blood group of the deceased with the blood stains foundon the alleged weapon used in the crime – Not safe to convict an

CDE

FGH

[2018] 2 S.C.R.

Aaccused solely relying on evidence of PW-7 – Therefore, judgmentof the High Court affirmed.

Dismissing the appeals, the Court

HELD: 1. The appellant-State of Maharashtra has notcomplied with the directions of Judge-in-Chamber i.e. to furnishBthe latest and correct address of the unserved common solerespondent-accused No.1 in Criminal Appeal Nos.1872 & 1873of 2013. Consequently, Criminal Appeal Nos. 1872 and 1873 of2013 stood dismissed for non prosecution. [Para 5] [519-A-B]

2.1 In the remaining case, namely, Criminal Appeal No.C1871 of 2013 against respondent herein i.e. accused No. 2, out of23 prosecution witnesses, the evidence of PW7 is crucial as shewas presented as the sole eye-witness who had seen the accusedNo. 2 along with accused No. 1, cutting the corpse of the deceasedinto pieces. Apparently, there was no other witness who had lastDseen the accused in the company of deceased prior to the placeand time of occurrence. When the entire case hinges on theevidence of sole witness, paramount duty is cast on the Courtto carefully scrutinize such evidence and find out whether suchevidence is worth credence or not. [Para 7] [519-C-D]E2.2 The evidence of PW7 in the present case needs acareful consideration. Admittedly, PW7 had witnessed the crimebeing committed by the accused at about 10.30 p.m. in the nightand there was no electricity at the alleged scene of offence.According to PW7, her husband also witnessed the crime, butthey could not identify whether the accused were cutting intoFpieces the body of dead person or an alive person. Even afterwatching the brutal crime, neither PW7 nor her husband had raisedhue and cry in the vicinity which was stated to be thickly populated,but they went to sleep peacefully and thereafter led normal life.There is also no dispute that PW7 did not identify the respondentherein-accused No. 2 and her statement was recorded after aGgap of one and half month from the date of incident. [Para 9] [520-B-C]

2.3 After considering the evidence of PW7, thecircumstances of the entire case and also the evidences of otherprosecution witnesses, it is found that husband of P.W.7, whoH

was also stated to be an eyewitness to the incident, was neitherexamined by police at the time of investigation, nor even beforethe Court and no satisfactory explanation for his non-examinationis found on record. Apart from this, even, test identification paradewas not conducted and no steps were taken to prove the bloodgroup of the deceased with the blood stains found on the allegedweapon used in the crime. [Para 10] [520-D-E]

2.4 Thus, in the foregoing circumstances, especially takingnote of the unnatural manner in which PW7 kept quiet till oneand half month after the incident, that too in the midst of thicklypopulated vicinity, it is not safe to convict an accused solely relyingon her evidence. The High Court has rightly classified andconsidered the evidences of prosecution witnesses and afterproperly analyzing the facts and circumstances rendered areasoned judgment, disbelieving the prosecution story. Therefore,the view taken by the High Court affirmed. [Para 11] [520-F-G]

Joseph v. State of Kerala (2003) 1 SCC 465 : [2002] 4 Suppl. SCR 439; State of Haryana v. Inder Singh(2002) 9 SCC 537; Ramnaresh v. State of Chhattisgarh(2012) 4 SCC 257: [2012] 3 SCR 630; Seeman @Veeranam v. State, by Inspector of Police (2005) 11 SCC142 – relied on.

From the Judgment and Order dated 01.10.2010 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Criminal AppealNo. 130 of 2004 with Criminal Appeal No. 343 of 2004 with CriminalAppeal No. 403 of 2004.

Ms. Deepa M. Kulkarni (for Nishant RamakantraoKatneshwarkar), Adv. for the Appellant.

Subodh K. Pathak, Ms. Pranita Shekhar, Pawan Kumar Sharma,Dharmendra Kumar Sinha, Advs. for the Respondent.

AThe Judgment of the Court was delivered by

N. V. RAMANA, J. 1.These appeals by special leave aredirected against the judgment and order dated 01.10.2010 passed by theHigh Court of Judicature at Bombay, Bench at Nagpur, in Criminal AppealNos. 130, 343 and 403 of 2004.

These appeals by special leave are

2. The prosecution has levelled allegations against two accusedin these appeals. Accused No. 1—Ajay, was charged with the offenceof committing murder of one Rakesh Dattaji Chavan while accused No.2 (respondent herein) was charged for committing the offences punishableunder Section 201 read with Section 34, IPC for allegedly destroying theCevidence by cutting the corpse of the deceased Rakesh Dattaji Chavaninto pieces and disposing them. The trial Court convicted and sentencedaccused No. 2— respondent herein to suffer rigorous imprisonment forthree years and to pay fine of Rs.500/-, in default, to further sufferrigorous imprisonment for period of six months.D3. Having been aggrieved with the conviction and sentence, therespondent filed Criminal Appeal before the High Court which came tobe allowed. As matter of fact, two more criminal appeals were alsofiled before the High Court, one by the co-accused (accused No. 1)against his conviction and sentence and the other by the State seekingenhancement of sentence against the accused. By the judgment impugnedEherein, the High Court while dismissing the appeal of the State, allowedthe appeals filed by the accused and acquitted them of the charges.

4. Dissatisfied with the impugned judgment, three criminal appealsi.e. Criminal Appeal No. 1871 of 2013, against the respondent hereinwho is accused No. 2, Criminal Appeal No. 1872 of 2013 (against accusedNo.1) and Criminal Appeal No. 1873 of 2013 (against accused No. 1)have been filed before this Court by the State of Maharashtra. In viewof failure of the State despite according several opportunities to furnishcorrect address of accused No. 1 for effecting service in Criminal AppealNos. 1872 and 1873 of 2013, the Judge-in-Chamber of this Court finallypassed an order dated 15[th] December, 2016 in the following terms:

“Learned counsel for the appellant is granted four weeks’ furthertime, finally, to furnish the latest and correct address of the unservedcommon sole respondent in Criminal Appeal Nos. 1872 and 1873of 2013, failing which, the Criminal Appeal Nos. 1872 and 1873 of2013 shall stand dismissed without further reference to the Court.”

5. In spite of the aforesaid order, the appellant—State ofMaharashtra has not complied with the directions of Judge-in-Chamber.Consequently, Criminal Appeal Nos. 1872 and 1873 of 2013 stooddismissed for non prosecution. Hence, we are now concerned withCriminal Appeal No. 1871 of 2013 only against respondent herein i.e.accused No. 2.

6. We have heard learned counsel for the appellant – State aswell as learned counsel appearing on behalf of the respondent – accused,and gone through the material on record.

7. Undoubtedly, out of 23 prosecution witnesses, the evidence ofPW7—Pushpabai is crucial in this case as she was presented as thesole eye-witness who had seen the accused No. 2 along with accusedNo. 1, cutting the corpse of the deceased into pieces. Apparently, therewas no other witness who had last seen the accused in the company ofdeceased prior to the place and time of occurrence. When the entirecase hinges on the evidence of sole witness, paramount duty is caston the Court to carefully scrutinize such evidence and find out whethersuch evidence is worth credence or not. Before assessing the evidenceof PW7, we find it appropriate to note some of the views expressed bythis Court on this aspect.

8. In Joseph v. State of Kerala, (2003) 1 SCC 465 this Court hasobserved that where there is sole witness, his evidence has to beaccepted with an amount of caution and after testing it on the touchstoneof other material on record. In State of Haryana v. Inder Singh, (2002)9 SCC 537 this Court has laid down that the testimony of sole witnessmust be confidence inspiring and beyond suspicion, thus, leaving no doubtin the mind of the Court. In Ramnaresh v. State of Chhattisgarh, (2012)4 SCC 257 this Court, after taking note of the aforementioned twojudgments, observed that “the principles stated in these judgments areindisputable. None of these judgments say that the testimony of the soleeyewitness cannot be relied upon or conviction of an accused cannot bebased upon the statement of the sole eye-witness to the crime. All that isneeded is that the statement of the sole eye-witness should be reliable,should not leave any doubt in the mind of the Court and has to becorroborated by other evidence produced by the prosecution in relationto commission of the crime and involvement of the accused in committingsuch crime”. It is well settled that it is the quality of the evidence andnot the quantity of the evidence which is required to be judged by the

Acourt to place credence on the statement [Seeman @ Veeranam vs.State, by Inspector of Police, (2005) 11 SCC 142].

9. In light of the above, the evidence of PW7—Pushpabai in thepresent case needs to be considered. Admittedly, PW7 had witnessedthe crime being committed by the accused at about 10.30 p.m. in theBnight and there was no electricity at the alleged scene of offence.According to PW7, her husband also witnessed the crime, but they couldnot identify whether the accused were cutting into pieces the body of adead person or an alive person. Even after watching the brutal crime,neither PW7 nor her husband had raised hue and cry in the vicinitywhich was stated to be thickly populated, but they went to sleep peacefullyCand thereafter led normal life. There is also no dispute that PW7 did notidentify the respondent herein—accused No. 2 and her statement wasrecorded after gap of one and half month from the date of incident.

10. After giving our thoughtful consideration to the evidence ofPW7, we have also considered the circumstances of the entire case andDalso the evidences of other prosecution witnesses. We find from therecord that husband of P.W.7, who was also stated to be an eyewitnessto the incident, was neither examined by police at the time of investigation,nor even before the Court and no satisfactory explanation for his non-examination is found on record. Apart from this, even, test identificationEparade was not conducted and no steps were taken to prove the bloodgroup of the deceased with the blood stains found on the alleged weaponused in the crime.

11. Thus, in the foregoing circumstances, especially taking noteof the unnatural manner in which PW7 kept quiet till one and half monthFafter the incident, that too in the midst of thickly populated vicinity, it isnot safe to convict an accused solely relying on her evidence. Thus, wefind no firm ground in this appeal or reason to believe the testimony ofalleged eyewitness PW7 calling for our interference in the judgmentpassed by the High Court. In our view, the High Court has rightly classifiedand considered the evidences of prosecution witnesses and after properlyGanalyzing the facts and circumstances rendered reasoned judgment,disbelieving the prosecution story. We, therefore, affirm the view takenby the High Court and dismiss the appeal of the State.

12. Pending applications, if any, shall also stand disposed of.

HAnkit Gyan Appeals dismissed.