VITHAL PUNDALIK ZENDGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court dismissing the three appeals preferred by the present appellant and two other co-accused. Criminal Appeal No.703 of 2000 was filed by the present appellant while the co-accused Kisan filed Criminal Appeal No. 701 of 2000 and Milind Dhondu Gaikawad filed Criminal Appeal 702 of 2000. The accused persons faced trial for alleged commission of offences punishable under Sections 144, 148, 302 read with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). The appellant faced trial along with 8 others. Appellant was first accused (A-1). The trial Court held that all the accused persons were guilty and they were awarded life sentence in respect of offence punishable under Section 302 read with Section 149 IPC and different other sentences which were directed to run concurrently by the learned Sessions Judge, Greater Bombay in Sessions Case No.248 of 1996. Only three appellants questioned the conviction and the sentence and three appeals were disposed of by the impugned judgment as noted above.

(2.) Prosecution version which led to the trial of the accused persons is essentially as follows : On 15.12.1995 at about 2330 hrs. complainant Sahida Shaikh (PW1) was going to Sulabh Sauchalaya (Public Toilet) situated at Prabuddha Nagar Hutments, Suweree, Wadala, Bombay-15. When she was passing near the house of Subhash Kharkhare, she noticed Vitthai, Shiva, Krishna, Mohd. Ali, Nitin, Milind and Sandeep standing near the heap of garbage near the said Sulabh Sauchalaya. The B.M.C. street light and the lights of nearby houses were sufficient for the purpose of identification. She also noticed that Babu came out of the house of Subhash Khandale keeping his hands around the shoulder of Yasin (hereinafter referred to as 'deceased') and they were talking and going towards the said Sauchalaya. She was at a short distance. The said persons who were standing near the garbage heap, came near the Yasin and Babu. Then Babu removed his hand from the shoulder of Yasin and started abusing Yasin. Yasin objected to that. At that time Milind caught right hand of Yasin, Sandeep caught left hand of Yasin, Nitin caught head and hairs of Yasin from behind. Then Babu removed a sharp edged weapon from under his pant and shirt and started giving blows on the stomach of Yasin. Shiva, also took out sharp edged weapon which he was hiding on his person and said "Maro Sale Ko", and gave blows with the said weapon on the stomach and different parts on Yasin. Vitthai, Mohd. Ali and Krishna also gave blows with the weapons in their hands. Yasin was shouting "Ma Bachao, Bachao", then he went little ahead and fell down near Diamond Electric Store. One taxi was coming from the direction of Hindu Cemetery. Shiva, Vitthal. Babu, Krishna, Mohd. Ali sat in the said Taxi, threatened the driver of the Taxi, Nitin got down from the taxi and said taxi sped away towards the Jarbani Road. Nitin, Milond and Sandeep ran away towards the Cemetery. Hearing her shouts, her husband Mohd. Naseem, Subhash Khandare, Salim, Naresh and other persons came running there. Salim and Naresh removed Yasin to the KEM Hospital. She also went to the Hospital with her mother and came to know that Yasin had expired. EPR Constable Vishwas B. Sarate (PW15) was on duty at KEM Hospital, recorded the report of said incident which is at Exh.P-77 and passed on the information to PC22794 who was on duty at RAK Marg Police Station. PSI Chorge (PW12) who was Station House Officer on duty went to the KEM Hospital, recorded the statement of complainant PW-1 obtained running C.R. number which was 431/95, scribed the inquest report of Yasin which is at Exh.P-22 (admitted under Section 294 of Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.')). Thereafter, police party visited scene of offence and scribed the spot panchanama which is Exh.P-32. After returning to the Police Station, he treated the statement of Bahida as FIR, filled in the pro forma of FIR (Exh.P 16A) and proceeded with the further investigation. At about 8.20 a.m. on 16.12.1995, police also filled in ADR form, statements of Naresh, Salim and Amina. On 16.12.1995 the case was marked to PI Palele for further investigation who recorded the statements of (i) Kallu Verma, (ii) Kailash Bansode, (iii) Shankar Delare, (iv) Kishore Solanki, (v) Moh. Nasim, (vi) Subhash Khandare, (vii) Mamud Bhatkar, (viii) Aslam Mullu, (ix) Nagu Chatu, (x) Salim Shaikh (xi) Naresh, (xii) Fakir Shaikh and (xiii) Amina Yusuf. On 16.12.1995 police arrested accused No.6 Nitin Vasu Kadam and accused No.8 Sandeep Sahadev Jaitpkar. On 17.12.1995, they arrested accused No.2 Shiva Yashvant Tambe. Accused No. 5 Mohammed Ali Ismail Aamadare, accused No. 7 Milind Dhondu Gaikwad. On 29.12.1995, they arrested accused No. 1 Vitthal Pundalik Zondage, accused No.4 Vilas and Babu Bhagurao Shirke. On 15.01.1996, police recovered Gupti (Art. M-8) at the instance of accused No. 1 as per the panchanama Exh.P-42. On 16.01.1996, police recovered dagger (Art.M-9) at the instance of accused No. 3 Kisan Pandurang Gavli as per the panchanama Exh.P-27. On 06.02.1996 police sent all the muddamal articles to Chemical Analyst. Police received report of muddemal articles which is at Exh.P-45. On 12.2.1996 police charge sheeted all the accused before the learned Metropolitan Magistrate 13th Court, Bombay as per charge sheet and on 26.2.1996 their case was committed to the Court of Sessions. Since accused persons abjured guilt, trial was held. The prosecution has examined 15 witnesses many of whom are stated to be eye witnesses, except PW-1 who is the sister of the deceased, others resiled from their statements made during investigation. The trial Court after analyzing the evidence of PW-1 found her to be a trustworthy witness and relied on her evidence and rejected the plea of the accused persons that prosecution version cannot be accepted only on the basis of PW-1's evidence. Questioning their conviction appeals were filed before the High Court and as noted above the High Court affirmed the conclusions of the guilt and the sentences imposed.

(3.) In support of the appeal, primary stand of learned counsel for the appellant was that even though the conviction is maintainable on the basis of evidence of solitary witness that witness's version must be free from any blemish. In the instant case, the evidence of PW-1 does not inspire confidence. Primarily it was submitted that when there is a solitary witness's evidence it would be unsafe to rest the conviction thereon.