REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1026 OF 2007

Vithal Pundalik Zendge  …Appellant

Vs.

State of Maharashtra …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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 alongwith 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

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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.  Vitthal, 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,

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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

proforma 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 P I 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,

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(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 & 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.

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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.    

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4. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgments of the trial Court and the High Court.  

5. The  law  relating  to  the  approach  of  the  courts  when  prosecution

version  essentially  rests  on  the  testimony  of  a  single  witness  has  been

highlighted by this Court in many cases.  

6. On a consideration of the relevant authorities and the provisions of

the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) the following

propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a

single witness though uncorroborated. One credible witness outweighs the

testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should

not insist on corroboration except in cases where the nature of the testimony

of  the  single  witness  itself   requires   as  a  rule  of  prudence,  that

corroboration should be insisted upon, for example in the case of a child

witness, or of a witness whose evidence is that of an accomplice or of an

analogous character.

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(3)  Whether corroboration of the testimony of a single witness is

or is not necessary, must depend upon facts and circumstances of each case

and no general rule can be laid down in a matter like this and much depends

upon the judicial discretion of the Judge before whom the case comes.  

7. Therefore, there is no hesitation in holding that the contention that in

a murder case the court should insist upon plurality of witnesses, is much

too broadly stated.

8. In Vadivelu Thevar v.  The State of Madras (AIR 1957 SC 614) this

Court had gone into this controversy and divided the nature of witnesses in

three  categories,  namely,  wholly  reliable,  wholly  unreliable  and  lastly,

neither wholly reliable nor wholly unreliable. In the case of the first  two

categories this Court said that they pose little difficulty but in the case of the

third category of witnesses, corroboration would be required. The relevant

portion is quoted as under:  

‘11.  …  Hence,  in  our  opinion,  it  is  a  sound  and  well- established  rule  of  law  that  the  court  is  concerned  with  the quality and not with the quantity of the evidence necessary for proving  or  disproving  a  fact.  Generally  speaking,  oral testimony  in  this  context  may  be  classified  into  three categories, namely:

(1) Wholly reliable.

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(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should have no difficulty  in  coming  to  its  conclusion  either  way  — it  may convict or may acquit on the testimony of a single witness, if it is  found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases,  that the court has to be circumspect and  has  to  look  for  corroboration  in  material  particulars  by reliable  testimony,  direct  or  circumstantial.  There  is  another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.’

9. Vadivelu Thevar case (supra) was referred to with approval in Jagdish

Prasad v.  State  of  M.P (AIR 1994 SC 1251).   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 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

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whether the evidence has a ring of truth, is cogent, credible and trustworthy,

or otherwise.”

10. The position has been re-iterated in large number of cases.  Reference

may be  made  to  Joseph v.  State  of  Kerala (2003  (1)  SCC 465),  Yakub

Ismailbhai  Patel v.  State  of  Gujarat (2004  (12)  SCC  229)  ,  Bhimapa

Chandappa Hosamani and Ors. v. State of Karnataka (2006 (11) SCC 323)

and Kunju @ Balachandran v. State of Tamil Nadu [2008(2)SCC 151].  

11. Coming to the evidence of PW-1, the roles played by accused persons

have been elaborately described in detail.  She has described the role played

by each of the accused persons.  She has stated that she was at a distance of

about  12 ft  from the place  of  occurrence.   Interestingly,  a  suggestion in

cross examination was given that distance was about 20 ft.  In other words,

her presence has been accepted. Since the accused persons were known to

her, a minute difference in the distance is really of no consequence.  

12. She  has  deposed  that  she  knew all  the  accused  as  they  were  the

residents  of  the  same  locality  where  she  lived  since  her  birth.  On  15th

December, 1995 at about 11.30 p.m. when she went to  attend the nature’s

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call  near  the  public  toilet,  she  saw  accused  No.4  with  her  brother,  the

deceased. The accused No.4 had kept his hand on her brothers’ shoulder and

they were going towards the toilet. They were talking loudly and accused

No.4 was abusing her brother. Then he started assaulting her brother with a

long  weapon  like  gupti.  All  the  other  accused  were  standing  near  the

garbage bin. She was near the toilet. When accused No.4 was assaulting her

brother,  all  the  other  accused  who were  standing  closeby came near  her

brother. They all also caught him and assaulted him with weapons in their

hands. Accused Nos.7 and 8 caught his hands, accused No.6 caught him by

the hand, accused Nos.1, 2, 3 and 5 started assaulting him with weapons

in their hands which were like gupti. This is in essence prosecution case.  

13. She has further deposed that she was at a distance of about 12 ft. from

the place of the incident. She stood there and watched the incident. At that

time the street lights were on and there were 2 lights on the spot. She as well

as  her  brother  shouted  "Bachao  Bachao".  Nobody  came  for  help.  Her

brother fell down and the assailants ran away. A taxi came and accused Nos.

1 to 4 fled in that taxi.  She rushed to R.A.K. Marg Police Station which was

at a 5 minutes walking distance to meet the officer in charge. Her mother

also came to the police station. The police officer went to KEM Hospital.

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She returned to the spot and found that her brother was not there. She learnt

that he was removed to KEM hospital and she also went to the hospital. Her

brother  had died.  The police recorded her  statement in the hospital.  That

was treated as the FIR, marked Exhibit-16.

14. In spite  of incisive cross  examination a few contradictions  of very

minor nature have been elicited. They are not  sufficient to throw out her

evidence.  Such discrepancies have been rightly held by the trial Court and

the High Court to be of no consequence as she has been a witness of ghastly

crime when in front of her, her  brother was brutally murdered.  

15. Above being the position we find no merit  in this appeal  which is

accordingly dismissed.    

………………………….……….J. (Dr. ARIJIT PASAYAT)

………………….………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 19, 2008   

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