TADA case and sec.302 of I.P.C.- conviction on untrust worthy sole witness with out corroboration not sustainable – High court acquitted the accused under TADA sections but convicted him under sec.302 of I.P.C.- Apex court held that 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.Another aspect which is required to be seen whether such witness or witnesses are the only competent witnesses who could have been fully capable of explaining correctly the factual situation. As we find, the conviction wholly rests on the sole testimony of PW-14. It is well settled in law that conviction can be based on the testimony of a singular witness.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.PW-14 who has come forward for recording his statement under Section 161 CrPC almost after two years and eight months. The only explanation he has given is that he was threatened by the co-accused Dul Bhuyan. It is interesting to note after his statement was recorded, the accused was arrested after six years and nothing happened to him during the said period. Thus the plea of threat to keep him silent for almost two years and eight months does not inspire confidence. His acquaintance with the accused- appellant was hardly a fortnight old, but he along with the appellant and another had gone to the clinic of the deceased where the other person, pretending as a patient, went inside. It is in his evidence that the accused-appellant had fired at the deceased as a result of which he fell down and died. That the said witness could keep such an incident without disclosing to anyone, defies prudence and baffles commonsense. His plea of being threatened for such a long period to have the sustained silence, is unacceptable and we have no hesitation in holding that his testimony is thoroughly and wholly unreliable. Therefore, we are of considered view that the conviction recorded by the Designated Court on his testimony alone without any corroboration is totally unsustainable. In the result, we allow the appeal and set aside the judgment of conviction.=
whereby the Designated Court has acquitted the Appellant
under TADA on the foundation that there is no material to implicate him
under the provisions of TADA and found that there is adequate material to
convict him under Section 302 of the Indian Penal Code, 1860 (“IPC” for
short) and accordingly recorded the conviction and sentenced him to undergo
rigorous imprisonment for life with fine of Rs.50,000/-, in default, to
suffer further rigorous imprisonment for five years.=
Dr. Swapan Sathi Barman, a medical practitioner, while attending
to the patients in his clinic, was shot by two unidentified youths from the
point blank range as a consequence of which he breathed his last.=
on 04.11.1993, they recorded the statement of Suren
Hazarika, PW-14, under Section 161 CrPC. His statement under Section 164
CrPC was also recorded. Thereafter, on the basis of the statement of
Hazarika, steps were taken to apprehend the accused-appellant, and
eventually on 20.02.1999 he was arrested and ultimately charge sheet was
filed before the Trial Court on 29.07.2001.=
In Dahari v. State of U.P.[4], while discussing about the non-examination
of material witness, the Court expressed the view that when he was not the
only competent witness who would have been fully capable of explaining the
factual situation correctly and the prosecution case stood fully
corroborated by the medical evidence and the testimony of other reliable
witnesses, no adverse inference could be drawn against the prosecution.
From the aforesaid authorities, it is quite vivid that non-examination of
material witnesses would not always create a dent in the prosecution’s
case. However, as has been held in the Case of Gian Chand (supra) 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 out whether the witnesses were
available for being examined in the Court and were yet withheld by the
prosecution.
That apart, 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.
Another aspect which
is required to be seen whether such witness or witnesses are the only
competent witnesses who could have been fully capable of explaining
correctly the factual situation.
As we have noticed in the case at hand,
the daughter was the eye witness and the wife was slightly away from the
scene of occurrence.
They are the most natural and competent witnesses.
They really could have thrown immense light on the factual score, but for
the reasons best known to the prosecution, they have not been examined.
It
is also not the case of the prosecution that they had not been cited as
their evidence would have been duplication or repetition of evidence or
there was an apprehension that they would have not supported the case of
the prosecution.
In the absence of any explanation whatsoever and also
regard being had to the presence of wife and daughter of the deceased at
the place of occurrence, we are of the considered opinion that it has
affected the case of the prosecution.
We are obliged to hold so as we find
the prosecution has otherwise not been able to establish the case against
the appellant and, therefore, non-examination of the material witnesses
cannot be regarded as inconsequential.
As we find, the conviction wholly
rests on the sole testimony of PW-14. It is well settled in law that
conviction can be based on the testimony of a singular witness.
It has
been held in Sunil Kumar v. State (Govt. of NCT of Delhi)[5] 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 courts will insist on corroboration.
The same principle has
been reiterated in Namdeo v. State of Maharashtra[6] by stating that it is
open to a competent court to fully and completely rely on a solitary
witness and record conviction, if the quality of the witness makes the
testimony acceptable.
In the case at hand the learned trial Judge has placed reliance on the
evidence of PW-14 who has come forward for recording his statement under
Section 161 CrPC almost after two years and eight months. The only
explanation he has given is that he was threatened by the co-accused Dul
Bhuyan. It is interesting to note after his statement was recorded, the
accused was arrested after six years and nothing happened to him during the
said period. Thus the plea of threat to keep him silent for almost two
years and eight months does not inspire confidence. Apart from that, as
his testimony would show the accused-appellant had enquired about the
deceased and he had accompanied them to the house of the deceased on one
day, when the deceased Doctor was absent. His acquaintance with the accused-
appellant was hardly a fortnight old, but he along with the appellant and
another had gone to the clinic of the deceased where the other person,
pretending as a patient, went inside. It is in his evidence that the
accused-appellant had fired at the deceased as a result of which he fell
down and died. That the said witness could keep such an incident without
disclosing to anyone, defies prudence and baffles commonsense. His plea of
being threatened for such a long period to have the sustained silence, is
unacceptable and we have no hesitation in holding that his testimony is
thoroughly and wholly unreliable. Therefore, we are of considered view
that the conviction recorded by the Designated Court on his testimony alone
without any corroboration is totally unsustainable.
In the result, we allow the appeal and set aside the judgment of
conviction. If the detention of the accused-appellant is not required in
connection with any other case, he be set at liberty forthwith.
2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41873
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 679 OF 2013
Deny Bora ..Appellant
VERSUS
State of Assam ..Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is preferred under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (“TADA” for short) assailing
the judgment passed by the Designated Court, Guwahati in TADA Sessions Case
No. 47 of 2001, whereby the Designated Court has acquitted the Appellant
under TADA on the foundation that there is no material to implicate him
under the provisions of TADA and found that there is adequate material to
convict him under Section 302 of the Indian Penal Code, 1860 (“IPC” for
short) and accordingly recorded the conviction and sentenced him to undergo
rigorous imprisonment for life with fine of Rs.50,000/-, in default, to
suffer further rigorous imprisonment for five years.
The prosecution case, as unfolded, is that on 2.3.1991 about 6.30 p.m., the
deceased, Dr. Swapan Sathi Barman, a medical practitioner, while attending
to the patients in his clinic, was shot by two unidentified youths from the
point blank range as a consequence of which he breathed his last. An FIR
was lodged by one Kumud Bora on the following day i.e. 3.3.1991 at Jamuguri
police station under Sonitpur district and on the basis of the said FIR
Station Case No. 20/91 u/s 302/34 IPC read with Sections 3/4 of TADA was
registered which set the criminal law in motion.
During investigation, certain incriminating documents belonging to Assam
United Reservation Movement were recovered from the residence of one Martan
Dey of Tupia Gaon. The Investigating Officers examined number of
witnesses who had heard about the occurrence from the wife and daughter of
the deceased and on 04.11.1993, they recorded the statement of Suren
Hazarika, PW-14, under Section 161 CrPC. His statement under Section 164
CrPC was also recorded. Thereafter, on the basis of the statement of
Hazarika, steps were taken to apprehend the accused-appellant, and
eventually on 20.02.1999 he was arrested and ultimately charge sheet was
filed before the Trial Court on 29.07.2001.
The prosecution in order to prove its case examined 17 witnesses out of
which many were formal witnesses and the investigating officers as the
investigation was carried out by three officers. The two relevant
witnesses are Dr. Prabhash Kr. Barman, PW-17, who had conducted the post
mortem and Suren Hazarika, PW-14, who claims to be the eye witness.
After the examination of the witnesses cited on behalf of the prosecution
was over, statement of the accused under Section 313 CrPC was recorded in
which he pleaded not guilty and took the stand of false implication. The
defence chose not to adduce any evidence. The Designated Court did not
find any material to show complicity of the accused in any of the offences
in respect of which charges had been framed under the TADA and accordingly
opined that he was not guilty of the same. However, as has been stated
earlier, the Designated Court found that the prosecution had brought home
the charge under Section 302 IPC against the accused. For arriving at the
said conclusion, as the reasoning of the Designated Court would reveal, it
has placed reliance on the testimony of PWs-14 and 17.
Mr. Goswami, learned senior counsel for the appellant, criticizing the
judgment of the Designated Court, has submitted that there can be no cavil
over the proposition that a conviction can rest on the sole testimony of a
singular witness but the said witness has to be absolutely reliable so that
the credence can be given to his testimony. In the case at hand, submits
Mr. Goswami, PW-14 has surfaced after two years eight months by availing
the specious plea that he was threatened and therefore, he could not
apprise the investigating agency about the occurrence which makes his
version absolutely incredible. It is also contended by him that as per
the prosecution story, the wife was inside the house and the daughter, Ms.
Prantika Barman, who was with the deceased, have not been examined and such
non-examination of material witnesses, in the absence of any explanation,
creates a dent in the prosecution’s story. Learned senior counsel would
further submit that a reference to the post mortem report by the learned
trial Judge is inconsequential except that it proves the homicidal death,
but unfortunately, the same has been treated as a part of the evidence to
prove the guilt of the accused which is impermissible.
Mr. Navneet Kumar, learned counsel appearing for the State of Assam, per
contra, would contend that the explanation offered by PW-14 about his
revealing of the incident in a belated manner because of the threat given
by the co-accused, namely, Dul Bhuyan, deserves to be accepted because the
witnesses in certain circumstances do behave in a peculiar manner regard
being had to their individual mental framework, personal courage and
disposition in life. Learned counsel would further submit that the
evidence of PW-14 deserves acceptation as it is reliable and the Designated
Court has correctly appreciated the same and, therefore, the view expressed
by it as regards the conviction, cannot be found fault with.
Be it noted that there is no dispute over the fact that the deceased was
fired from the point blank range. The post mortem would reveal that he had
suffered two injuries, namely, (i) one wound on the right side of the face
near the outer angle of the right eye, size ½” x ½” with inverted margin
and (ii) one would present on the left side of the neck just below the ear.
Size 1” x ½” with averted margin and the cause of death was due to shock
and hemorrhage as a result of bullet injuries sustained by the deceased.
Therefore, the death is homicidal is beyond doubt.
The question that arises for consideration is whether the prosecution has
been able to establish the involvement of the appellant in the crime in
question. As is manifest, neither the wife nor the daughter of the
deceased has been examined. Submission of Mr. Goswami is that they are
natural witnesses and no explanation has been given for their non-
examination and hence, adverse inference against the prosecution deserves
to be drawn. He has drawn inspiration from the authority in Surinder Kumar
v. State of Haryana[1] wherein it has been held, though in a different
context, that a failure on the part of the prosecution in non-examining the
two children, aged about six and four years respectively, when both of them
were present at the site of the crime, amounted to failure on the part of
the prosecution. In this context, reference to the decision in State of
H.P. v. Gian Chand[2] would be profitable. The Court while dealing with
non-examination of material witnesses has expressed that:-
“14 … Non-examination of a material witness is 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 leveled against the prosecution should
be examined in the background of the facts and circumstances of each case
so as to find whether the witnesses are available for being examined in
the court and were yet withheld by the prosecution.”
The three-Judge Bench further proceeded to observe that the court is
required first to assess the trustworthiness of the evidence available on
record and if the court finds the evidence adduced worthy of being
relied on, then the testimony has to be accepted and acted upon though
there may be other witnesses available who could also have been examined
but were not examined.
In Takhaji Hiraji v. Thakore Kubersing Chamansing[3] and others the Court
has ruled that it is true that if a material witness, who would unfold the
genesis of the incident or an essential part of the prosecution case, not
convincingly brought to fore otherwise, or where there is a gap or
infirmity in the prosecution case which could have been supplied or made
good by examining a witness who though available is not examined, the
prosecution case can be termed as suffering from a deficiency and
withholding of such a material witness would oblige the court to draw an
adverse inference against the prosecution by holding that if the witness
would have been examined it would not have supported the prosecution
case. On the other hand if already overwhelming evidence is available and
examination of other witnesses would only be a repetition or duplication of
the evidence already adduced, non-examination of such other witnesses may
not be material. In such a case the court ought to scrutinise the worth of
the evidence adduced. The Court should pose the question whether in the
facts and circumstances of the case, it was necessary to examine such other
witness, and if so, whether such witness was available to be examine and
yet was being withheld from the court. If the answer be positive then only
a question of drawing an adverse inference may arise. If the witnesses
already examined are reliable and the testimony coming from their mouth is
unimpeachable the court can safely act upon it, uninfluenced by the factum
of non-examination of other witnesses.
In Dahari v. State of U.P.[4], while discussing about the non-examination
of material witness, the Court expressed the view that when he was not the
only competent witness who would have been fully capable of explaining the
factual situation correctly and the prosecution case stood fully
corroborated by the medical evidence and the testimony of other reliable
witnesses, no adverse inference could be drawn against the prosecution.
From the aforesaid authorities, it is quite vivid that non-examination of
material witnesses would not always create a dent in the prosecution’s
case. However, as has been held in the Case of Gian Chand (supra) 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 out whether the witnesses were
available for being examined in the Court and were yet withheld by the
prosecution. That apart, 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. Another aspect which
is required to be seen whether such witness or witnesses are the only
competent witnesses who could have been fully capable of explaining
correctly the factual situation. As we have noticed in the case at hand,
the daughter was the eye witness and the wife was slightly away from the
scene of occurrence. They are the most natural and competent witnesses.
They really could have thrown immense light on the factual score, but for
the reasons best known to the prosecution, they have not been examined. It
is also not the case of the prosecution that they had not been cited as
their evidence would have been duplication or repetition of evidence or
there was an apprehension that they would have not supported the case of
the prosecution. In the absence of any explanation whatsoever and also
regard being had to the presence of wife and daughter of the deceased at
the place of occurrence, we are of the considered opinion that it has
affected the case of the prosecution. We are obliged to hold so as we find
the prosecution has otherwise not been able to establish the case against
the appellant and, therefore, non-examination of the material witnesses
cannot be regarded as inconsequential. As we find, the conviction wholly
rests on the sole testimony of PW-14. It is well settled in law that
conviction can be based on the testimony of a singular witness. It has
been held in Sunil Kumar v. State (Govt. of NCT of Delhi)[5] 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 courts will insist on corroboration. The same principle has
been reiterated in Namdeo v. State of Maharashtra[6] by stating that it is
open to a competent court to fully and completely rely on a solitary
witness and record conviction, if the quality of the witness makes the
testimony acceptable.
In the case at hand the learned trial Judge has placed reliance on the
evidence of PW-14 who has come forward for recording his statement under
Section 161 CrPC almost after two years and eight months. The only
explanation he has given is that he was threatened by the co-accused Dul
Bhuyan. It is interesting to note after his statement was recorded, the
accused was arrested after six years and nothing happened to him during the
said period. Thus the plea of threat to keep him silent for almost two
years and eight months does not inspire confidence. Apart from that, as
his testimony would show the accused-appellant had enquired about the
deceased and he had accompanied them to the house of the deceased on one
day, when the deceased Doctor was absent. His acquaintance with the accused-
appellant was hardly a fortnight old, but he along with the appellant and
another had gone to the clinic of the deceased where the other person,
pretending as a patient, went inside. It is in his evidence that the
accused-appellant had fired at the deceased as a result of which he fell
down and died. That the said witness could keep such an incident without
disclosing to anyone, defies prudence and baffles commonsense. His plea of
being threatened for such a long period to have the sustained silence, is
unacceptable and we have no hesitation in holding that his testimony is
thoroughly and wholly unreliable. Therefore, we are of considered view
that the conviction recorded by the Designated Court on his testimony alone
without any corroboration is totally unsustainable.
In the result, we allow the appeal and set aside the judgment of
conviction. If the detention of the accused-appellant is not required in
connection with any other case, he be set at liberty forthwith.
……………………………….J.
[DIPAK MISRA]
………………………………..J.
[ABHAY MANOHAR SAPRE]
NEW DELHI
AUGUST 27, 2014
———————–
[1] (2011) 10 SCC 173
[2] (2001) 6 SCC 71
[3] (2001) 6 SCC 145
[4] (2012) 10 SCC 256
[5] (2003) 3 SCC 169
[6] (2007) 14 SCC 150
———————–
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