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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 831 OF 2010
Takdir Samsuddin Sheikh ...Appellant
State of Gujarat & Anr. ...Respondents
CRIMINAL APPEAL NO. 832 OF 2010
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Both these appeals have been preferred against the judgment
and order dated 4.5.2009 passed by the High Court of Gujarat at
Ahmedabad in Criminal Appeal No.278 of 2002, by which it has
affirmed the judgment and order passed by the Sessions Court dated
14.12.2001 in Sessions Case No.24 of 2001 in which the appellants
got convicted under Section 302 read with Section 114 of the Indian
Penal Code, 1860 (hereinafter called "IPC") and sentenced to life
imprisonment with a fine of Rs.1000/- each.
2. Facts and circumstances giving rise to these appeals are :-
(a) That Shri Bharat Rajendraprasad Trivedi (PW.1) lodged the
complaint on 21.9.2000 that the complainant, deceased along
with both the appellants had gone to see the land in their two
cars. The complainant (PW.1) and deceased were in one car,
while appellant No.1 in another car being driven by the
appellant No.2. Thereafter, they came back and decided to
meet the owner of the land Smt. Jadaavben Ambalal
Parmar (PW.3). Thereafter, at about 2.30 p.m. when they
were coming back in their respective cars, both the
appellants asked the deceased and complainant to stop their
car. Both the appellants got down from the car with swords
and started giving indiscriminate blows to Moiyuddin
Shaikh, deceased, when the complainant and deceased had
come out from their cars after receiving signal given by the
appellants. The complainant got scared and started running
away. He was chased by the appellant Rameshbhai Ramlal
(b) The complainant Bharat Rajendraprasad Trivedi informed
the brother of the deceased on telephone about the incident
and also filed the complaint with Vadodara Taluka Police
Station vide C.R. No.94 of 2000. The police reached the
place of incident and recovered the dead body. The dead
body was sent for post-mortem in S.S.G. Hospital Vadodara.
According to the post-mortem report, a total of 33 injuries
had been caused on the body of the deceased. In the opinion
of the Doctor, the cause of death was shock and
haemorrhage following multiple incised wounds.
(c) The Investigating Officer had been searching for the
appellants. Both the appellants/accused were arrested on
3.10.2000 while they were travelling in the Car No.GJ-6 JJ-
2408 on the highway. The car was checked and in the dicky
of the car blood stained clothes were found. Blood stained
swords were also recovered on the disclosure statements of
the appellants. One of the swords was not having the handle.
(d) After conclusion of the investigation, the police submitted
the charge-sheet and the matter was committed to the
Sessions Court, Vadodara. After conclusion of the trial, the
Sessions Court vide judgment and order dated 14.12.2001
convicted the appellants under Section 302 read with Section
114 IPC and both of them have been sentenced to life
imprisonment with a fine of Rs.1,000/- each.
3. Being aggrieved, both the appellants preferred appeal before
the High Court which has been dismissed vide impugned judgment
and order dated 4.5.2009. Hence, these appeals.
4. We have heard Mr. Vikas Singh and Mr. Nachiketa Joshi
learned counsel for the appellants and Mrs. Hemantika Wahi with
Ms. Jesal, learned counsel for the State.
5. Learned counsel for the appellants have submitted that
recovery of the blood stained clothes after 13 days from the car of
the appellants is totally improbable and so is the recovery of blood
stained swords. Recoveries made after such a long period cannot be
relied upon as it can be presumed that the incriminating
articles/materials had been planted. There had been material
contradictions/embellishments/improvements in the statements of
witnesses which made the case of the prosecution totally improbable.
Complainant (PW.1), deceased and appellant No.1 were partners in
the business of sale and purchase of lands. In fact, there is sufficient
material on record to show that in the sale transaction of land from
Smt. Jadaavben Ambalal Parmar (PW.3), as the entire amount of
consideration had not been paid to her by the deceased Moiyuddin
Shaikh and she had raised hue and cry, a large number of persons
from the village had gathered and there was a scuffle, so, it was
probable that those villagers might have killed Moiyuddin Shaikh,
deceased. It was not even possible for two appellants to cause as
much as 33 injuries to the deceased. This defence taken by the
appellants had not been given proper weightage by the courts below.
The complainant who was partner in the Firm along with the
deceased and appellant no.1 herein could have also created the
mischief as he would be the beneficiary in terms of money by
eliminating one partner Moiyuddin Shaikh and getting convicted
appellant No.1. In view of the above, the impugned judgment and
order is liable to be set aside, and appeals deserve to be allowed.
6. Per contra, Mrs. Hemantika Wahi, learned Standing counsel
for the State has opposed the appeal contending that the facts of the
case do not warrant interference with concurrent findings of facts by
the two courts. The courts below have rightly appreciated the
evidence on record. Contradictions, being trivial in nature had
rightly been ignored. Recoveries made in the case have rightly been
believed. The appellants could be apprehended on 3.10.2000.
Therefore, the question of recovery of blood stained clothes or
swords could not arise prior to that. The appeals lack merit and are
liable to be dismissed.
7. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
8. The sheet anchor of the argument on behalf of the appellants
had been the contradictions/improvements in the statement of the
witnesses. They are most immaterial and irrelevant for the trial. In
case the earnest deed had not been seen/examined by the
complainant (PW.1), as deposed by him, it could not be presumed
that the complainant, who was a partner in the Firm had seen it. In
case, the complainant had not been the witness to the said earnest
deed it is quite natural that though he was present at the time of
executing the earnest deed he might have not seen it. Another
incident cited is that he did not disclose as to whether he had not told
the deceased as what was the agreement/understanding in respect of
sharing the benefit in the transaction of land with Smt. Jadaavben
Ambalal Parmar (PW.3).
9. We are of the view that all omissions/contradictions pointed
out by the appellants' counsel had been trivial in nature, which do
not go to the root of the cause.
It is settled legal proposition that while appreciating the
evidence, the court has to take into consideration whether the
contradictions/omissions/improvements/embellishments etc. had
been of such magnitude that they may materially affect the trial.
Minor contradictions, inconsistencies, omissions or improvements
on trivial matters without affecting the case of the prosecution
should not be made the court to reject the evidence in its entirety.
The court after going through the entire evidence must form an
opinion about the credibility of the witnesses and the appellate court
in natural course would not be justified in reviewing the same again
without justifiable reasons.
(Vide: Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of
Maharashtra, (2010) 13 SCC 657).
10. The complainant Shri Bharat Rajendraprasad Trivedi (PW.1)
is the sole eye-witness. It has been submitted on behalf of the
appellants that being a sole and an interested witness, his evidence
cannot be relied upon without corroboration. The submissions
advanced in this respect had been that Shri Bharat Rajendraprasad
Trivedi (PW.1) being a partner in the Firm would be beneficiary in
the transaction of land involved herein in case one partner had been
eliminated and other partner landed in jail. Such an argument is not
acceptable for two reasons:
(i) While appreciating the evidence of witness considering him
as the interested witness, the court must bear in mind that the term
`interested' postulates that the witness must have some direct interest
in having the accused somehow or the other convicted for some
other reason. (Vide: Kartik Malhar v. State of Bihar, (1996) 1
SCC 614; and Rakesh & Anr. v. State of Madhya Pradesh, JT
2011 (10) SC 525).
(ii) This Court has consistently 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 witness. That is the logic of
Section 134 of the Evidence Act, 1872. But if there are doubts about
the testimony, the court 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. 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. (See: Vadivelu Thevar v. The State of
Madras, AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of
Delhi, (2003) 11 SCC 367; Namdeo v. State of Maharashtra,
(2007) 14 SCC 150; and Bipin Kumar Mondal v. State of West
Bengal, AIR 2010 SC 3638).
11. We do not find any force in the submissions advanced on
behalf of the appellants that it was not possible for two persons to
cause 33 injuries on the person of the deceased and therefore, the
villagers could have caused such injuries. Had it been so, as the
scuffle took place in the presence of the appellants, they could have
given the full details of the incident and further disclosed as to
whether those villagers reached the place of occurrence with swords.
Had it been so, Smt. Jadaavben Ambalal Parmar (PW.3) and her
son Sureshbhai Ambalal Parmar (PW.5) could have also been
involved in the case.
12. As the courts below have discussed each and every factual
and legal aspect of the case elaborately, we do not think it proper to
re-examine every point. Presence of the complainant along with
deceased and appellants was natural as being partners, they had gone
to see the land. In case, there was some scuffle at the place of
incident for the reason that the entire consideration for land had not
been paid to Smt. Jadaavben Ambalal Parmar (PW.3), what was
the occasion for the villagers to chase the deceased and kill him and
that is too, without harming complainant and the appellants. More
so, in case only agreement to sell had been executed, question of
making payment of full consideration would not arise. However,
Sureshbhai Ambalal Parmar (PW.5) had stated that sale deed and
agreement to sell had been executed simultaneously. We fail to
understand in case the sale deed is being executed, what was the
occasion for executing the agreement to sell in respect of the same
land in the same transaction. Shri Vasimuddin Jenuddin Shaikh
(PW.4), brother of the deceased has admitted that immediately after
the incident he received the phone call from the complainant
regarding the incident. This very fact makes the prosecution case
most probable. FIR had been lodged promptly. Thus, there was no
time for any kind of manipulation.
13. After appreciating the evidence, the two courts below
reached the following conclusions:
(i) Bharat Trivedi (PW.1) is an eye-witness. He had
accompanied deceased at the time when the incident had taken place.
Though, he was subjected to cross-examination, nothing substantial
could be elicited.
(ii) Death of the deceased is proved. Appellants were arrested
after 13 days and from the dickey of their car clothes stained with
blood were discovered.
(iii) The evidence of Bharat Trivedi (PW.1) is fully trustworthy
and he is not an interested witness.
(iv) In fact, Bharat Trivedi (PW.1) had informed brother of
deceased about the incident without any loss of time.
(v) Bharat Trivedi (PW.1) stated that he had made phone call
from STD, PCO booth whereas the relevant witness Budhabhai
Prajapati (PW.6) stated that accused had made call from his place
but this discrepancy is insignificant. All the witnesses are
(vi) Principle of falsus in uno falsus in omnibus is not applicable
to a criminal trial in India.
(vii) The assertion by Bharat Trivedi (PW.1) that he was with the
deceased could not be demonstrated to be untrue merely because
Bharat Trivedi (PW.1) had not informed the police first but had
informed brother of the deceased.
14. We had been taken through the entire record by learned
counsel for the parties. We do not find any ground on the basis of
which we may reach the conclusion that any of the findings recorded
by the courts below is improbable or does not require affirmation.
15. In view of the above, we do not see any cogent reason to
interfere with the impugned judgments and order. The appeals lack
merit and are accordingly dismissed.
( Dr. B.S. CHAUHAN )
( A.K. PATNAIK ) New Delhi, October 21, 2011 12