Jharkhand High Court
Halim Mian vs The State Of Jharkhand on 6 April, 2023
Bench: Sujit Narayan Prasad, Subhash Chand
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 581 of 2009
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(Against the Judgment of conviction dated 04.05.2009 and order of
sentence dated 05.05.2009 passed by Additional Sessions Judge-cum-
Fast Track Court-II, Giridih in S.T. No.525 of 2007)
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1. Halim Mian
2. Kalam Mian
3. Alam Mian
4. Salim Mian, All sons of Habib Mian
5. Habib Mian
6. Rafique Mian @ Raful
Nos. 5 & 6 sons of Kaila Mian
7. Lukman Mian
8. Majid Mian
Nos. 7 & 8 both sons of Rafique Mian
All are the resident of village-Chutiadih, P.S.Gandey, District-
Giridih. ........ Appellants
Versus
The State of Jharkhand ........ Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant Nos.1 & 3 : Mr. P.P.N. Roy, Sr. Advocate
For the Appellant Nos.2 & 4 to 8: Mr. S.K. Murtty, Advocate
For the State : Mr. Manoj Kumar Mishra, APP
For the Informant : Mr. Vishal Kumar Tiwary, Advocate
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CAV on:16th March,2023 Pronounced on: 06/04/2023
Per: Sujit Narayan Prasad, J.
1. The instant criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure directed against the Judgment of conviction dated 04.05.2009 and order of sentence dated 05.05.2009 passed by Additional Sessions Judge-cum-Fast Track Court-II, Giridih in S.T. No.525 of 2007 by which the appellants have been convicted for 2 commission of offence under Sections 302/449/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/ for the offence under section 302/34 I.P.C and in default to pay fine it shall be realized as per provision under section 421 (1) (a) & (b) of the Cr. P.C. It is further ordered that the whole amount of fine recovered shall be paid to the wife of the deceased as compensation according to the provision of section 357 of the Cr. P. C.
2. The brief facts of the case, as per the statement made in fardbeyan, reads as under:
The wife of the deceased namely, Khairun Bibi (informant) gave her fardbeyan (Exhibit-4) before the A.S.I, namely, Chandradeo Tiwari of Gandey Police Station on 31.07.2007 at 6.30 A.M at her house in village Chutiadih in presence of her dewar Mumtaj and other co-
villagers. It has been stated that in the intervening night of 30/31.07.2007 after having taken meal the informant was sleeping with her husband on a cot and the lantern was burning in the room and the door of the room was open as her children were sleeping in adjacent room. It is alleged that at about 12 O' clock (night) informant awoke having heard the sound dham-dham of jumping towards north-western side of her house near guava tree. Until she could understand anything about the jumping sound, the agnates of her husband, namely, Halim Mian, Alam Mian, Salim Mian, Lukman Mian, Habib Mian, Kalam Mian, Majid Mian and Rafique @ Raful Mian entered into the room.
Having seen them, when informant tried to leave the cot, Habib rushed 3 towards her and caught her hands. She saw that Raful started giving dagger blows at her husband. Having sustained injury, when her husband started crying, one of them told to assault her husband after dragging him on the ground from cot and thereafter all accused persons caught the hands, legs and hairs of her husband and took him in courtyard by dragging and thrashed him there. Thereafter, Lukman Mian caught his one leg, Majid Mian caught his another leg and Kalam caught his hands, in the meantime, Halim and Alam caught her, following which Habib left her and caught the head of her husband.
Salim sit over the chest of deceased and thereafter Raful Mian slitted the neck of her husband with sharp edged dagger. Her husband started wriggling with faltering voice and at that time accused persons pressed him tightly till he succumbed to injury and after that one of them ordered to kill her and her children, whereupon they moved towards her to assault but having heard shouting of her and the children, the neighbouring people started raising alarm and moved towards her house. In the meantime, accused persons fled away having opened the door of the boundary wall. When neighbouring people assembled there, she found her husband dead. In the fardbeyan the reason behind the occurrence has been mentioned as due to land dispute, accused persons have committed murder of informant's husband.
3. On the basis of the said fardbeyan, F.I.R. was registered being Gandey P.S. Case No.53/07 for commission of offence under Sections 449/302/34 of the Indian Penal Code against eight F.I.R. named accused persons.
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The police started investigation and on conclusion of the investigation the charge sheet was submitted, whereupon cognizance of the offence was taken and the case was committed to the Court of Sessions.
4. The trial court after commitment of case framed charge against the appellants under Sections 449, 302/34 of the Indian Penal Code. The trial court after examining the evidence of witnesses, examination- in-chief and cross-examination, recorded the statement of the accused persons and found the charges levelled against the appellants proved beyond all reasonable doubt. Accordingly, the appellants have been found guilty and convicted for the offence punishable under Sections 302/449/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life for the offence under section 302/34 of the I.P.C.
5. Mr. S.K. Murtty, learned counsel has represented the case of appellant nos.2 and 4 to 8 while the appellant nos.1 and 3 have been represented by Mr. P. P. N. Roy, learned senior counsel assisted by Mr. P. A. N. Roy, learned counsel. Both the counsel representing the appellants have raised the following grounds in questioning the impugned judgment:
(i) The investigating officer has not seized the blood stained earth, knife and the blood stained bed sheet and as such the same being vital but having not been seized, the entire prosecution will vitiate. Learned counsel appearing for the appellant in order to fortify his argument has relied upon the judgment rendered by Hon'ble Apex Court in the case 5 of Lakshmi Singh and Ors. vs. State of Bihar reported in AIR 1976 SC 2263.
(ii) The ground has been taken that the conviction since is based upon the solitary eye witness, P.W-1 (informant) without having been corroborated by the testimony of the other witnesses and as such conviction cannot be said to be based on sound reasoning. Learned counsel for the appellant in order to fortify his argument has relied upon the judgment rendered by Hon'ble Apex Court rendered in the case of Badri vs. State of Rajsthan reported in AIR 1976 SC 560 and Kartik Malhar vs. & State of Bihar reported in (1996) 1 SCC 614.
(iii) The ground has been taken that the non-examination of the material witness, namely, Mumtaz, Yousuf and Dr. Parvez Alam without any due explanation on behalf of the investigating agency, the case cannot be said to be substantially been established against the appellants, since, they are the material witness since they were present at the time of occurrence and hence their non-examination casts suspicion on the prosecution version and in that view of the matter the principle of benefit of doubt will be applicable as per the settled position of law and the benefit of doubt is to be given to the accused persons, the appellants herein. The learned counsel appearing for the appellants in order to fortify his argument has relied upon the judgment rendered in the case of Manjit Singh & Anr. vs. State of Punjab & Anr.
reported in (2013) 12 SCC 746 and Nachhattar Singh and Ors. vs. The State of Punjab reported in AIR 1976 SC 951.
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(iv) The another ground has been taken that the question based upon the circumstance have not been put at the time of recording of statement of the accused persons as required under section 313 of the Cr. P.C as per the settled position of law that the entire circumstances and the evidence which has come in course of trial against the accused persons is required to be brought to the notice of the accused persons so as to follow the principle of natural justice but in the given facts of the case, the question based upon the circumstance has not been placed and as such on this ground also the prosecution miserably failed to prove its case.
(v) The ground has also been taken by taking into consideration the testimony of P.W-1 who has deposed in her testimony that while she tried to save the life of her husband she was restrained forcefully in doing so but it is very surprising that she has sustained no injury and the same also casts doubt upon the prosecution version.
(vi) The ground has also been taken that in the instant case the defence witness has also been examined but their testimony has not been considered and as such on this ground also the judgment of conviction cannot be said to be justified.
6. Per contra, Mr. Manoj Kumar Mishra, learned APP for the State as also learned counsel for the informant have submitted that the principle of non-seizure of the blood stained earth, knife or the lethra (bed sheet) even if not seized but the prosecution is based upon the testimony of the eye witness, the non-seizure of the blood stained earth, knife or the lethra (bed sheet) will not vitiate the trial. Learned APP for 7 the State as also the learned counsel for the informant in order to fortify their submission have relied upon the judgment rendered by Hon'ble Apex Court in the case of C. Muniappan and Ors. vs. State of Tamilnadu reported in (2010) 9 SCC 567.
So far as the argument advanced on behalf of the appellants that there cannot be conviction on the basis of solitary eye witness, the submission has been made that if the testimony of the eye witness is fully trustworthy then there is no bar in passing the judgment of conviction on the basis of the testimony of the solitary eye witness. The learned counsel for the State as also the informant in order to fortify their argument have relied upon the judgment rendered by Hon'ble Apex Court in the case of Namdeo vs. State of Maharashtra reported in (2007) 14 SCC 150.
So far as the argument advanced on the behalf of the appellants that due to non-examination of Mumtaz, Yousuf and Dr. Parvez Alam trial will vitiate the submission has been made that even accepting the fact that Mumtaz, Yousuf and Dr. Parvez Alam have not been examined but due to their non-examination the trial will not vitiate, since, the conviction is based upon the testimony of the eye witness, P.W-1 and her testimony has been corroborated by the testimony of other witnesses including the investigating officer and the doctor and hence merely because some of the witnesses who ought to have been examined under Section 161 of the Cr. P.C have not been examined the trial will not vitiate.
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So far as the argument advanced on behalf of the appellants that the circumstantial question has not been put while recording the statement of accused persons/appellants under section 313 of the Cr. P.C is concerned, the same is having no force if the question put under section 313 will be perused as available on Lower Court Record it will be evident that all the circumstances on the basis of the evidence has been put up before the appellants.
So far as the argument that P.W-1 has not received any scratch while trying to save the life of her husband, the same cannot be said to have any adverse impact on the prosecution version, since, the case is based upon the testimony of the eye witness.
So far as the argument that there is non-consideration of the defence witness, D.W-1, but, if the testimony of the defence witness, namely, Dewani Mian will be considered, it will be evident that even the D.W-1 has supported the prosecution version and in that view of the matter no prejudice has been caused to the appellants since the D.W-1 itself has supported the prosecution version as would appear from the testimony as made by D.W.-1 at paragraph 11 and 24 of his testimony.
7. We have heard the learned counsel for the parties and gone through the materials available on record but before going into the legality and propriety of the impugned judgment of conviction and order of sentence, deem it fit and proper to first discuss about the testimony of the witnesses as also the exhibits contained in the Lower Court Record.
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8. The prosecution has examined altogether eight witnesses, namely, P.W-1 (Khairun Bibi), the informant, P.W-2 (Damodar Rai) the independent witness, P.W-3 (Mumtaj Ansari), P.W-4 (Puran Rai) and P.W-5 (Mangar Mahato) are the hostile witness, P.W-6 (Dr. S.N Tanti) is the doctor who held autopsy on the dead body and found the following injuries:
"External Injury:
(i) Partially amputated wound on neck with incised bloody margin cutting anterior part of the neck skin, larynx, trachea, muscles and all major vessels with cervical vertebral bones only skin on the posterior part of neck was intact.
(ii) Incised wound 6 ½ inches x bone deep over right pectoral area of chest.
(iii) Incised wound 4 x ¼ x skin deep on the back of the left side of chest.
(iv) Incised wound 3 x ½ x muscle deep over the lateral side of left thigh.
(v) Bruise 2 x 1over left supra clavicular area.
(vi) Three incised wounds each measuring 2 x ¼ x skin deep on the back right side of chest."
P.W-7 (Makbul Mian) is the father of the deceased and Arjun Singh the investigating officer has been examined as P.W-8.
9. It appears from the testimony of P.W-1who happens to be the eye witness of the occurrence has stated that at 12.00 in the night when she was sleeping with her husband in a room and the children were sleeping in the adjacent room she awoke having heard the sound dham-dham and in the meanwhile eight persons entered in the room. She had seen them in the light of the lantern and identified as Halim Mian, Alam Mian, Salim Mian, Lukman Mian, Habib Mian, Kalam Mian, Majid Mian and Rafique @ Raful Mian. She has further deposed that when she tried to stand, Habib caught her and Rafique started inflicting dagger blows at 10 her husband and all of them except Habib took her husband in the courtyard by dragging and thrashed him there. It has been deposed that Lukman Mian caught his one leg and Majid Mian caught his other leg, Kalam of his hand, Salim sitted on the chest and thereafter Rafique Mian silted the neck of her husband with dagger. It has further been deposed that they had pressed her husband for some time and in the meanwhile children also awoke and they all started lamenting whereupon neighbouring people assembled and in the meantime accused persons escaped having opened the door of boundary wall. She has stated reason behind this occurrence by saying that her husband was son of Maquabal. Her husband's grandfather, Kaila Mian had executed a deed of his entire property including the share of her father in-law except husband in favour of Habib and Rafique one month ago since his death and when her husband came to know this fact he convened a panchayati in which it was decided that all landed property will be divided in three parts but even after that accused persons were saying that they will not allow to take the yield of her part.
It further appears form the testimony of P.W-2, who happens to be the independent witness has supported the prosecution version as has been narrated by P.W-1. He has deposed that after having heard hulla from the house of Razzaque, he went there and saw the Razzaque dead. His neck was slitted. Razzaque's wife told that Habib, Rafique, Salim, haleem, Alam, Kalam, Lukman and Mazid have jointly caused the murder of her husband.
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It further appears from the testimony of P.W-3 who has deposed that he after having heard the sound of weeping from the house of Razzaque came at his house and saw the Razzaque dead. His neck was slitted. He was apprised by wife of Razzaque's wife that Rafique Mian has slitted the neck of her husband. At that time Habib Mian caught the head of Razzaque, Salim had sitted on his chest, Lukman and Majid caught and pressed his both legs and Kalam had pressed his hands while Haleem and Alam both had caught her.
P.W-4 and P.W-5 have been declared to be hostile but it appears from their testimony that they have consistently deposed about going to the house of the deceased and saw Razzaque dead in the courtyard and neck of the deceased was slitted and there was pool of blood.
P.W-7, namely, Maquabool Mian has supported the prosecution version and deposed that he went to the house of his deceased son and saw him lying in courtyard and his neck was slitted.
The investigating officer has been examined as P.W-8 who has stated to have accorded the fardbeyan of Khairunisa Bibi and has proved fardbeyan and endorsement on it as Exhibit-4 and 4/1 respectively. He has also proved inquest report as Exhibit-5. He has given full description of the place of occurrence with its topography. He has further stated that he found pool of blood near dead body of Razzaque, whose neck was slitted up to its half.
The defence has also examined one witness as D.W-1, namely, Dewani Mian.
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10. The learned trial court on the basis of the testimony of the prosecution witnesses has found the testimony of P.W-1 in support of the version as recorded in the fardbeyan having been corroborated by the testimony of the other witnesses including the investigating officer and the doctor who has supported the prosecution version. The learned trial court on the basis of the testimony of the P.W-1 having been supported by other evidences has found the charge proved beyond all reasonable doubt against the appellants and accordingly convicted them for the offence under Sections 302/449/34 of the Indian Penal Code.
11. The ground has been agitated on behalf of the appellants that the testimony of P.W-1 cannot be said to be acceptable with all credibility, since, the blood stained earth, knife and the bed sheet (lelthra) have not been seized. It appears from the testimony of the investigating officer that the blood stained earth, knife and the bed sheet (lelthra) have not been seized. But the question is that whether on the basis of non-seizure of blood stained earth, knife and the bed sheet (lelthra), can the prosecution version be said to have been vitiated if the prosecution version is being supported by the eye witness, the P.W-1 having been supported by other witnesses including the doctor.
12. The law is well settled that if the blood stained earth, knife or the lethra (bed sheet) have not been seized the entire prosecution will not fail as has been held by the Hon'ble Apex Court in the case of State of Rajasthan vs. Arjun Singh reported in 2011(9) SCC 115 wherein at paragraph 18 it has been held, which reads as under: 13
"18. As rightly pointed out by the learned Additional Advocate General appearing for the State that mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes etc. cannot be taken or construed as no such occurrence had taken place. As a matter of fact, we have already pointed out that the gunshot injuries tallied with medical evidence. It is also seen that Raghuraj Singh and Himmat Raj Singh, who had died, received 8 and 7 gunshot wounds respectively while Raj Singh (PW 2) also received 8 gunshots scattered in front of left thigh. All these injuries have been noted by the Doctor (PW-1) in his reports Exts. P-1 to P-4."
Further the Hon'ble Apex Court in the case of Ram Avtar Rai vs. State of U.P reported in (1985) 2 SCC 61 wherein at paragraph 10 it has been held, which reads as under:
"10. ..... It is true that bloodstained earth has not been recovered from the scene of occurrence by the investigating officer though as stated earlier the deceased had sustained as many as 5 lacerated injuries besides a number of contusions and abrasions. From the failure of the investigating officer to recover bloodstained earth from the scene of occurrence it is not possible to infer that the occurrence had not taken place in front of the house of the deceased and PW 1. The evidence of PWs 2 and 3 could not, therefore, be rejected as unreliable as has been done by the learned Sessions Judge. ......"
Further the Hon'ble Apex Court in the case of Maqbool & Anr. vs. State of A.P., reported in (2010) 8 SCC 359 wherein at paragraph 20 it has been held, which reads as under:
"20. Secondly, not only PW 2 but even other witnesses have stated that there was sufficient light in and around the place of occurrence because of streetlight, light from the house of the deceased, bus-stand and the nursing home. There is no reason for us to disbelieve PW 1, PW 3 and other witnesses who said that there 14 was sufficient illumination at the place of occurrence and the argument advanced by the appellants hardly has any merit. Yes, it was expected of the investigating officer to seize from the place of occurrence such articles or items including the bloodstained earth or empties, which were available even as per his statement. This lacuna in the investigation stands completely covered by the statement of the witness, the medical report and the eyewitness version."
13. It is, thus, evident that the law is well settled that merely because the blood stained earth, knife and the lethra (bed sheet) and the other incriminating articles have not been seized, the prosecution will not vitiate if the prosecution version is being supported by the testimony of the eye witness.
14. At this juncture, the consideration is required to be made upon the judgment relied by the appellant i.e., in the case of Laxmi Singh vs. State of Bihar reported in (1976) 4 SCC 394.
This Court has considered the factual aspects involved in the case wherefrom it is evident that the prosecution has relied upon the testimony of the hearsay witness which has been said to be not trustworthy due to non-examination of the independent witness and in that circumstances the observation has been made as under paragraph 14 that not sending the bloodstained earth found from the place of occurrence for chemical examination and his report along with the earth is not produced in the Court, the same has been considered to be a vital omission on the part of the prosecution.
15. The law is well settled that the applicability of the judgment is to be tested on the basis of the given facts of the case. Here in the facts of 15 the given case, it is the case of the prosecution which has been found to be proved on the basis of the testimony of the P.W-1, who has seen the occurrence/ commission of crime committed by the appellants herein and if in that circumstances even if the blood stained earth, knife and the lethra (bed sheet) have not been seized, the same cannot be said to be fatal on the basis of principle laid by the Hon'ble Apex Court in the case of Laxmi Singh vs. State of Bihar (supra).
16. This Court after considering the settled position of law as above, is of the view that the argument which has been advanced on behalf of the appellant that due to non-seizure of the blood stained earth, knife and the lethra (bed sheet) the prosecution will fail, the same considered to be not having any substance, accordingly rejected.
17. The second ground has been taken that there cannot be conviction on the basis of solitary eye witness without any corroboration and to fortify his argument the reliance has been placed upon the judgment rendered by Hon'ble Apex Court in the case of Badri (supra) and Kartik Malhar (supra).
18. This Court has considered the judgment rendered by Hon'ble Apex Court in the case of Badri (supra) wherefrom it is evident that the case is based upon the eye witness but without any corroboration and in that view of the matter the observation has been made that there cannot be conviction on the basis of solitary eye witness if the same has not been corroborated.
But, here in the given facts of the case is that the P.W-1 being the eye witness has supported the prosecution version which has been 16 supported by the other witnesses namely, P.W-2 (Damodar Rai), P.W-3 (Mumtaj Ansari) and P.W-7 (Makbul Mian) including the doctor and the investigating officer and as such as per the law laid down that as a general look the court can and may act on the testimony of the single eye witness provided he is wholly reliable and base the conviction on the testimony of such an eye witness, the relevant paragraphs of the judgments reads as under:
The Hon'ble Apex Court in the case of Bipin Kumar Mondal v.
State of W.B., (2010) 12 SCC 91 held as under:
"30. Shri Bagga has also submitted that there was sole testimony of Sujit Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8, could be treated merely as hearsay. The same cannot be relied upon for conviction.
31. In Sunil Kumar v. State (Govt. of NCT of Delhi)10 this Court repelled a similar submission observing that: (SCC p. 371, para 9)"9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration."
In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
32. In Namdeo v. State of Maharashtra this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
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33. In Kunju v. State of T.N., a similar view has been reiterated placing reliance on various earlier judgments of this Court including Jagdish Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras.
34. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly."
Likewise, the Hon'ble Apex Court in the case of Kuriya and another vs. State of Rajasthan, (2012) 10 SCC 433 held as under:
" 33. ---The Court has stated the principle that, as a general rule, the Court can and may act on the testimony of a single eyewitness provided he is wholly reliable and base the conviction on the testimony of such sole eyewitness. There is no legal impediment in convicting a person on the sole testimony of a single witness."
The Hon'ble Apex Court in the case of Kalu @ Amit vs. State of Haryana, (2012) 8 SCC 34 held as under:
"11. We find no infirmity in the judgment of the High Court which has rightly affirmed the trial court's view. It is true that the accused have managed to win over the complainant PW 4 Karambir Yadav, but the evidence of PW 5 Ram Chander Yadav bears out the prosecution case. It is well settled that conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence. This witness has meticulously narrated the incident and supported the prosecution case. We find him to be a reliable witness."
Further, the Hon'ble Apex Court in the judgment rendered in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367 at paragraph 9 held as under:
"9. Vadivelu Thevar case1 was referred to with approval in the case of Jagdish Prasad v. State of M.P. This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single 18 witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
19. This Court on examination of the factual aspect and having compared with the testimony of P.W-1 has found that the P.W-1 without any inconsistency has supported the prosecution version by showing the attributality of the appellants individually. It further appears from the testimony of the other witnesses, namely, Damodar Rai (P.W-2), Mumtaj Ansari (P.W-3) and Makbul Mian (P.W-7) including the investigating officer and the doctor that they are all around consistently supported the testimony of P.W-1.
20. This Court on the basis of the discussion so made hereinabove and taking into consideration the testimony of P.W-1 having been corroborated with the testimony of the other witnesses, namely, P.W-2, P.W-3 and P.W-7 including the investigating officer and the doctor and relying upon the principle laid down by Hon'ble Apex Court in the case of Bipin Kumar Mondal (supra) is of the view that the argument which has been advanced that there cannot be conviction on the basis of solitary eye witness without any corroboration is not attracted in the given facts of the case, since, herein the testimony of P.W-1 has been found to be consistent with the testimony of other witnesses and as such 19 it is incorrect on the part of the appellants to take the ground that testimony of P.W-1 has not been corroborated by the testimony of other witnesses.
21. The third ground has been taken that due to non-examination of material witness, namely, Mumtaz, Yousuf and Dr. Parvez Alam the benefit of doubt is to be given in favour of the appellants and in order to fortify his argument the reliance has been placed upon the judgment rendered in the case of Manjit Singh & Anr. (supra) and Nachhattar Singh and Ors. (supra).
This Court has considered the factual aspect involved in the case of Manjit Singh & Anr. (supra) wherefrom it is evident that on the basis of ocular and the documentary evidence brought on record the trial court found the prosecution to have proven its case beyond all reasonable doubt but while assailing the aforesaid judgment of conviction the ground has been taken that due to non-examination of two crucial witnesses, namely, Didar Singh and Malkiat Singh creates a great doubt in the prosecution version which makes it absolutely incredible. But the Hon'ble Apex Court while considering the aforesaid issue and after putting reliance upon the judgment rendered by Hon'ble Apex Court itself in the case of Masalti vs. State of U.P. reported in AIR 1965 SC 202 wherein it has been laid down as under paragraph 12 which reads hereunder as:
"12. In the present case, however, we are satisfied that there is no substance in the contention which Mr Sawhney seeks to raise before us. It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are 20 made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court. It is undoubtedly the duty of the prosecution to lay before the court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised."
Further in the case of Namdeo vs. State of Maharashtra reported in (2007) 14 SCC 150 wherein at para 28 it has been laid down:
"28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived."
In the case of Bipin Kumar Mondal (supra) the Hon'ble Apex Court has been pleased to hold as under paragraph 31 that it is not the quantity, but the quality that is material.
The Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Gian Chand reported in (2001) 6 SCC 71 as under
paragraph 14 has been pleased to hold, which reads as under:21
"14. So far as non-examination of other witnesses and an adverse inference drawn by the High Court therefrom is concerned, here again we find ourselves not persuaded to subscribe to the view taken by the High Court. The prosecutrix, PW 7 has stated that soon before the incident she was playing with three girl-children of the same age as hers and they were present when the accused committed rape on her. One of the girls picked up a broom and had tried to scare away the accused by striking the broom on him. This little friend of the victim had also raised a hue and cry but none from the neighbourhood came to the spot. These girls were none else than daughters of her uncle. What the High Court has failed to see is that these girls were of tender age and could hardly be expected to describe the act of forcible sexual intercourse committed by the accused on PW 7. Secondly, these girls would obviously be under the influence of their parents. We have already noted the co-sister of PW 1 turning hostile and not supporting the prosecution version. How could these little girls be expected to be away from the influence of their parents and depose freely and truthfully in the court? Non- examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence, which though available has been withheld from the court, then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of 22 corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations...."
-- is the law declared in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] (SCC p. 403, para 21). (Also see State of Rajasthan v. N.K. [(2000) 5 SCC 30 : 2000 SCC (Cri) 898] , State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147] and Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204 : 1992 SCC (Cri) 598] .) In the present case we are clearly of the opinion that in view of the accused being a relation of the in-laws of the mother of the prosecutrix and the other young girls who are alleged to have been not examined being from the family of such in-laws, it is futile to expect that such girls would have been allowed by their parents to be examined as witnesses, and if allowed, could have freely deposed in the court. The question of drawing an adverse inference against the prosecution for such non-examination does not arise."
The Hon'ble Apex Court on the basis of the aforesaid judgment has been pleased to observe that it is not the number and quantity of the witness but the quality that is material. It is the duty of the Court to consider the trustworthiness of the evidence on record which is pious confidence and the same has to be accepted and acted upon and in such a situation no adverse interference should be drawn from the fact of the non-examination of the other witnesses.
22. This Court on the basis of the aforesaid proposition of law as have been settled in the aforesaid judgments of the Hon'ble Apex Court and coming to the facts of the given case is of the view that the testimony of P.W-1 cannot be said to be having lack of trustworthiness, rather, the testimony of P.W-1 goes to clarify that the attributability of each individual accused persons have been corroborated as per the prosecution version as recorded by her in the fardbeyan and as such 23 there is no reason to consider the testimony of P.W-1 to be not trustworthy as also for the further reason that her testimony has also been supported by the other witnesses to whom she has narrated the version of commission of crime which is having with no inconsistency.
23. This Court, therefore, is of the view that merely because Mumtaz, Yousuf and Dr. Parvez Alam since have not been examined the prosecution will not vitiate.
24. So far the ground of putting no question under section 313 Cr. P.C is concerned basis upon which the argument has been advanced that as per the position of law non-putting the question to the accused under section 313 Cr. P.C will be fatal to the prosecution. There is no dispute about the aforesaid settled position of law as per the judgment rendered by Hon'ble Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, relevant at paragraph 143, 144 and 145 wherein the ratio has been laid down that not putting the question under section 313 of the Cr. P.C, what incriminating has come against the appellants and if in absence thereof, the conviction if based, the same cannot be said to be justified.
25. This Court, on the basis of the aforesaid position of law and on consideration of the statement recorded under Section 313 as available in the Lower Court Record, has found therefrom that the question has been put on the basis of the evidence gathered in course of examination of the witnesses regarding the commission of crime, for ready reference, the statement recorded with respect to one of the co-accused, namely, Rafique Mian is being referred herein:
24
^^iz'u&D;k vkius lkf{k;ksa dk C;ku lquk gSA mRrj&gk¡A iz'u&lk{; gS fd vkiyksxksa ,oa e`rd jTtkd fe;ka ds chp tehu dk fookn pyrk Fkk ftl laca/k esa iapk;r Hkh gqbZ Fkh D;k dguk gS\ mRrj&ughaA iz'u&;g Hkh lk{; gS fd iapksa us fookfnr tehu dks rhu Hkkxksa esa ckaV fn;k Fkk ftl ij vkiyksxksa us e`rd jTtkd fe;ka dks /kedh nh fd tehu rks ns fn;s gSa exj iSnkokj ugha [kkus nsxa s] D;k dguk gS\ mRrj&ughaA iz'u&;g Hkh lk{; gS fd vkius fnukad 30@31 tqykbZ 2007 dh jk=h esa xzke pqfV;kMhg] Fkkuk&xk.Ms;] ftyk&fxfjMhg esa uktk;t etek cukdj ?kkrd gfFk;kj ls Nqjk vkfn ls ySl gksdj e`rd jTtkd fe;ka ds ?kj esa vukf/kdkj izos'k fd;s rFkk ,d er gksdj jTtkd fe;ka dks ?klhVrs gq, vkaxu esa ykdj mudh gR;k mudk xyk dkVdj ds dj fn;k] D;k dguk gS\ mRrj&ughaA iz'u&lQkbZ esa D;k dguk gS\ mRrj&funksZ"kA iz'u&D;k lQkbZ xokg nsuk gS\ mRrj&jQhd fe;kaA**
26. This Court on the basis of the consideration of the statement as put forth to be recorded on behalf of the appellants under section 313 of the Cr. P.C and on taking into consideration the testimony of the witnesses is of the view that it is incorrect on the part of the appellants that they have not been put to the relevant questions on the basis of the material come in course of examination of the testimony.
The ground has been taken that the deposition of defence witnesses have not been considered as per the law settled that the defence witness is also to be given equal weightage as is to be given to the prosecution witness. There is no dispute about the legal position of law that the testimony of the defence witness is to be given treatment at par with the testimony of the prosecution witness. 25
This Court in order to consider the aforesaid argument has perused the impugned judgment wherefrom it is evident that one defence witness, namely, Diwani Mian has been examined as D.W.-1 and as would appear from paragraph 11 and 24 of the testimony it is evident that he has supported the prosecution version and so far as its consideration is concerned by the learned trial court it appears from the judgment impugned that the due consideration has been given to the testimony of the D.W-1 as would appear from the consideration so made at paragraph 18 of the impugned judgment, which reads as under:
"18. D.W.1 is Dewani Mian, has stated that 1 ½ years ago Razzaque died. When he heard about it, he went there and met with his wife, who told nothing about occurrence. He had not seen blood in his room or bed. One doctor Parwez live in house of deceased, fled away from there at the time of occurrence and wife of Razzaque (deceased) also left the place. He further has stated that he cannot say that accused persons, who are agnates of deceased are actually murderer of deceased or not but there was tension between both sides from before. During cross examination he has stated that the dead body was lying in courtyard at a distance of one hand (1 ½ ft.) from door of room. In para 15/16/17/18/19/20 of cross examination he has stated that land dispute between both parties has been existing for one year. The reason behind it is that Habib had got executed a deed for land of Razaque's share in his favour and a panchayati was convened in village for it. It was decided in Panchayati that Habib would return the land of Razzaque's (deceased) share but he cannot say as to whether accused persons had returned the land of Razzaque's (deceased) to him or not? He has further stated that 10 days before since murder of Razzaque, a quarrel occurred between deceased and Habib & other accused persons for dispute triggered for ploughing of land. He further has stated that the statement of the wife of Razzaque was recorded by officer in charge of police in his presence and she had stated the name of murderers of her husband. Razzaque's wife has been living at her parental house with her children since murder of Razzaque. He further has said that he has come to court with family member of Habib today."
27. This Court, after having discussed the fact and the issues in entirety as above and taking into consideration the testimony of the eye 26 witnesses and as per the discussion made hereinabove, is of the view that judgment passed by the learned trial court cannot be said to suffer from an error.
28. Accordingly, the instant appeal fails and is dismissed.
29. Consequent upon dismissal of the appeal preferred by the appellants, since appellant nos.1, 2, 3, 4, 7 and 8, namely, Halim Mian, Kalam Mian, Alam Mian, Salim Mian, Lukman Minan and Majid Mian respectively who are enjoying suspension of sentence after the order being passed by this Court directed to release them during pendency of the appeal, their bail bonds are cancelled and they are directed to surrender before the learned trial Court who would send them jail to serve out their remaining sentence with fine of Rs.5,000/ each.
30. Needless to say that if the appellants will not surrender, the trial Court will take endeavours for securing custody to serve out their remaining sentence and further secure that they deposit the amount of fine so imposed by this Court.
31. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
(Sujit Narayan Prasad, J.) I agree.
(Subhash Chand, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi Saket/ - A.F.R.