18 July 1996
Supreme Court
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ALIL MOLLAH AND ANR. Vs STATE OF WEST BENGAL

Bench: ANAND,A.S. (J)
Case number: Appeal (crl.) 400 of 1987


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PETITIONER: ALIL MOLLAH AND ANR.

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT:       18/07/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) THOMAS K.T. (J)

CITATION:  1996 SCALE  (5)471

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave is  directed against the judgment of  the High Court dated 29th April, 1987 upholding the judgment  of the  trial court dated 19th September, 1985 whereby the  appellants were  convicted for an offence under Section 302/34 IPC and sentenced to  imprisonment for life.      On 4th  February, 1982  at about 5.30 p.m. one Elem Bux Molla, owner of a brick kiln at Dhib Dhipa was on his way to Dhib Dhipa  Bazar for  taking tea  and snacks  when  he  was accosted by  4-5 persons,  including the  appellants herein. Appellant No.1  fired upon  him with  his gun as a result of which he  fell down.  Appellant No.2 slit the throat of Elem Bux  with  a  knife  and  after  raising  slogans  ’Inquilab Zindabad’ all  the miscreants  including the appellants fled away. According to the prosecution story PW.3 and PW.6, both employees  of   Elem  Bux,  witnessed  the  occurrence.  Din Mohammad, PW.1,  another employee  of the deceased heard the sound of  gun shots coming from the side of Dhib Dhipa Bazar and he  run towards  that place  from the field where he was working.   On reaching  Harwa-Lauhati Road  he saw  some 4-5 persons running  away towards the north along Boalghata Road shouting slogans  ’Inquilab Zindabad’. At a little  distance he found  his master  Elem Bux lying in a pool of blood with his throat  slit. Some  other  persons  were  present  at  a distance. PW.3 was also seen there and then PW.1 immediately rushed to Police Station Bangar and lodged First Information Report at about 8.30 p.m. In the First Information Report he stated that  "some unknown  miscreants"  had  committed  the murder of Elem Bux. On receiving the information, the police officer on  duty, PW.12,  after registering the formal First Information Report  took up  the investigation  in hand.  He left for  the place  of occurrence  at about  10.00 p.m.  On reaching the  place of  occurrence he  found the  dead  body lying on  the road.  Many people  had  collected  there.  He seized a   number  of incriminating  articles from  the spot including some  empty cartridges etc. He held inquest on the

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dead body of Elem Bux and sent the dead body for post-mortem examination. On  completion  of  the  investigation,  charge sheet was  filed  against  the  appellants  for  an  offence under Sections  302/34 IPC.  The  trial  court,  as  already noticed, convicted them for the offence under Section 302/34 IPC and  sentenced them  to suffee  life  imprisonment.  The appellants unsuccessfully  challenged their  conviction  and sentenced before the High Court.      Both the  trial court  and the High Court , disbelieved PW.6   Tassiruddin Molla  whom the prosecution had set up as one of  the eye  witnesses. Both the courts, however, relied upon the  testimony of  Altab Molla, PW.3. The conviction of the appellants  is based  upon the testimony of a single eye witness, PW.3.  Both the  courts found PW.3 to be a reliable witness  and   his  evidence   sufficient  to   convict  the appellants.      Learned counsel  for the appellants submitted before us that PW.3  was not a wholly reliable witness and his conduct was so  unnatural that  it would  be unsafe to rely upon his testomony  to  uphold  the  conviction  of  the  appellants. Learned counsel, in this connection, pointed out that though PW.3 was  an employee  of the  deceased,  after  seeing  the ghastly assault on his master, he not only did not go to the police but did not even disclose what he had seen to anybody at his  home or  in the  village or even at the place of his work till the next day and that too only after his statement was recorded  by the police during the afternoon of the next day i.e.  5th February,  1982.  Mr.  Puri,  learned  counsel appearing for  the respondent  on the other hand argued that since PW.3  has been relied upon by both the trial court and the High  Court, this  court need  not, in  this  appeal  by special leave,  go into  the  correctness  of  the  findings recorded by the courts below on the basis of appreciation of evidence. It is submitted that from the evidence of PW.3 the offence against the appellants stood amply established.      We  have   given  our   thoughtful  consideration   the respective submissions made at the Bar.      That the  entire case revolves around and rests on  the testimony of  PW.3 only  is not  in doubt.  It is  now  well established that conviction can be based on the testimony of a single  eye witness  provided the  court  finds  from  the scrutiny of  his evidence  that  he  is  a  wholly  reliable witness. Where,  however, the  court is  of the opinion that the single  eye witness  is only  partly reliable,  prudence requires that  corroboration of  his testimony  in  material particulars should be sought before recording conviction. It is in  the light  of these-well  settled principles  that we shall examine the testimony of PW.3.      On  his  own  showing  PW.3  was  an  employee  of  the deceased. He  was present,  according to his testimony, when the deceased was assaulted by the appellants. He admits that after  committing   the  crime   the  appellants  and  their associates fled away. The witness, however, not only did not raise any  alarm when his master was being assaulted, he did not go  near his employer even after the assailants had fled away to  see the  condition in  which the employer was after having  suffered  the  assault.  According  to  him  he  got frightened and  fled away  to his  home. He also admitted in his cross--examination  that neither  at his home nor in the village did  he disclose  what he had seen in the evening of 4th February,  1982 to any one. Though in the morning of the following day,  the witness  went to the brick fields of the deceased-employer and  many of  his co-employees  were  also present there,  he admitted  that he  did not  disclose  the occurrence to  anyone of  them and  went on  to concede that

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even  to  the  Manager  of  the  brick-fields  he  gave  the information about  the occurrence  only 2-3  days after  the occurrence. His  statement was recorded by the police on the next day  in the afternoon. This conduct of the witness that he did  not tell  anyone about  the occurrence till the next day appears to be rather unnatural and creates an impression that he  had  not  witnessed  the  occurrence.  The  witness however tried  to take  shelter on  the  plea  that  he  was "frightened" and  therefore  till  he  appeared  before  the police, he  did not pick up courage to inform anyone  either in  the   village  or  on  the  brick-fields  regarding  the occurrence.  This   plea  does  not  impress  us.  From  the statement of  the investigating officer, PW.12, we find that after having visited the scene of occurrence, he went to the village where  the witness  resides, on  the   night of  4th February, 1982  and remained  there till 5th February, 1982. It is  not understandable  why the  witness who  was in  the village did  not appear  before the  investigating  officer, when he  was camping  in the village throughout the night or even the  next morning.  No explanation  whatsoever has been offered by  him. PW  3, in  view of his unexplained silence, delayed statement  to the  police and  relationship with the deceased, thereof,  does not  appear to  us to  be a  wholly reliable witness.  There is no corroboration of his evidence from any  other independent source either. In the absence of any corroboration  of his testimony we find it rather unsafe to rely  upon the  evidence  of  PW.3  only  to  uphold  the conviction and  sentence of  the appellants. Indeed both the courts below  have relied  upon the  statement of  PW.3  and found him to be a reliable witness but unfortunately neither the trial  court nor  the High  Court have  adverted to  the admissions made  by the  witness in  his  cross-examination, which we  have noticed  above. Though  this Court sitting in appeal by  special leave does not normally re-appreciate the evidence, which has been appreciated by the two courts below unless there  are compelling  reasons but  with  a  view  to satisfy  our   judicial  conscience  we  have  examined  the statement of PW.3 critically and are of the opinion that the appreciation of  his evidence  by both  the courts below was not  proper   as  admissions  made  by  him  in  his  cross- examination which  materially detracted from his reliability were  not  at  all  noticed  by  the  courts  below  thereby resulting in  miscarriage of justice. To perpetuate an error is no  virtue but  to ractify it is a compulsion of judicial conscience. We  find ourselves  unable  to  agree  with  the findings recorded  by the  courts below  with regard  to the reliability  of  PW3.  There  is  no  corroboration  of  his evidence to  connect the  appellants with  the crime. In our considered view,  on the  basis of  critical analysis of the evidence on  the record, we are of the opinion that the case against  the   appellants  has  not  been  proved  beyond  a reasonable doubt.  Consequently, this appeal succeeds and is allowed. The  conviction and  sentence of  the appellants is hereby set  aside. The  appellants are  on bail.  Their bail bonds shall stand discharged.