Criminal Appeal No. 143 of 2020 · Bombaybench High Court
Case Details
2024:BHC-AUG:10056-DB Cri. Appeal No.143 of 2020.odtFIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.143 of 20201.Pravin @ Bhangarya Bhimrao Patil,Age : 30 years, Occ. Labour,r/o. Govind Nagar, Pachora,Tq. Pachora, Dist. Jalgaon2.Ravindra Adhar Sonwane,Age : 26 years, Occ. Labour,r/o. Trymbak Nagar, Pachora,Tq. Pachora, Dist. Jalgaon..AppellantsVs.The State of Maharashtra..Respondent----Mr.Vikram R. Dhorde, Advocate for appellantsMrs.S.N.Deshmukh, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : APRIL 18, 2024 PRONOUNCED ON: MAY 06, 2024JUDGMENT (PER R.G.AVACHAT, J.) :-The challenge in this appeal is to the judgment ofconviction and consequential order of sentence dated 24.12.2019,passed by learned Addl. Sessions Judge, Jalgaon, in Sessions CaseNo.64 of 2017. Vide the impugned order, the appellants have beenconvicted for the offence punishable under Section 302 read withSection 34 of Indian Penal Code and therefore, sentenced to suffer
Facts
2Cri. Appeal No.143 of 2020imprisonment for life and pay fine of R.7,000/- each with defaultstipulation. Appellant no.1 (`A1') is in jail since the date of his arrest,while appellant no.2 (`A2') is on bail.2.The facts giving rise to the present appeal are asfollows:-First Information Report (Exh.48) was lodged by PW 1 –Vishal on 25.02.2017 at 01.05 a.m. (midnight). It is the case ofprosecution that Kisan @ Vitthal (deceased) was cousin of PW 1 –Vishal (informant). PW 1 – Vishal is resident of Srikrushna Nagar,Pachora, Dist. Jalgaon. Kisan would reside with the informant and hisfamily members until he attained majority. He, thereafter, shifted toSilvassa. He (Kisan) was driver by profession. Three months beforethe incident dated 24.02.2017, he had shifted to Dhule.3.On 24.02.2017 by 08.00 p.m., Kisan informed PW 1 –Vishal on cellphone that he had come to Pachora for delivery ofmineral water bottles of Bisleri brand. After unloading of the bottles,he would visit him (PW 1 – Vishal) at his residence by 10.00 p.m.PW 1 – Vishal and his another cousin PW 2 – Ransing, therefore, wentto Jalgaon square for awaiting arrival of Kisan. By 10.00 p.m., hearrived in his Eicher vehicle. He stopped having seen PW 1 – Vishal. 3Cri. Appeal No.143 of 2020There was a closed Egg-Omelette-vending cart. Kisan went behindthereof to ease himself (urinating). Both the appellants were presentat the public lamp-post in the nearby. When Kisan was returning, hedashed with A1. Quarrel, therefore, ensued between both of them.A2 gripped Kisan at his waist from behind. A1 knifed on the stomachof Kisan. Kisan tried to get rescued himself. He, therefore, turned.A1 then stabbed in his back. PW 1 – Vishal and some others namedin the FIR, rushed Kisan to Rural Hospital, Pachora, in auto-rickshaw.Kisan, unfortunately, succumbed to the injuries during treatment.4.Based on the FIR (Exh.48), crime vide C.R. No.36 of 2017,came to be registered with Pachora Police Station for the offencespunishable under Sections 302, 504 read with Section 34 of IndianPenal Code. PW 8 – Navnath was entrusted with the investigation.He drew inquest panchnama (Exh.68) in the presence of panchas.Scene of offence panchnama (Exh.65) was drawn. The appellantswere arrested. Clothes on the person of the appellants were seized.During investigation, both the appellants gave disclosurestatements, pursuant to which a knife and motorcycle came to berecovered, respectively. All the seized articles except motorcyclewere sent to C.F.S.L. Statements of the persons acquainted with thewith the facts and circumstances of the case were recorded. Upon 4Cri. Appeal No.143 of 2020completion of the investigation, charge sheet was filed against theappellants in the court of Judicial Magistrate, First Class, Pachora.Learned Magistrate committed the case to the Sessions Court,Jalgaon. Learned Sessions Judge assigned the case to the court ofAddl. Sessions Judge, Jalgaon (trial court) for trial in accordance withlaw.5.The trial court framed charge (Exh.12). The appellantspleaded not guilty. Their defence is of false implication. Theprosecution, to bring home the Charge, examined eight witnessesand produced in evidence certain documents. The trial court, onappreciation of the evidence in the case before it, convicted theappellants and consequentially, sentenced as stated above. 6.Heard learned counsel for the parties.7.Learned counsel for the appellant would submit that thecase is based on the evidence of sole eye-witness, PW 1 – Vishal.According to him, PW 1 – Vishal is not a witness of sterling quality.As per the case of prosecution, the deceased had informed PW 1 –Vishal that he would be visiting him at his residence by 10.00 p.m.PW 1 – Vishal, therefore, had no reason to be at Jalgaon square.Learned counsel referred to the relevant evidence of PW 1 – Vishal, 5Cri. Appeal No.143 of 2020to indicate that post cellphone call at 08.00 p.m. between the two,there was no further call between them so as to change the plan.According to learned counsel, PW 1 – Vishal claimed to have shiftedKisan to the hospital. It is, however, strange that neither his handsnor the clothes on his person were stained with blood of thedeceased. According to learned counsel, the FIR was lodged threehours after the incident. He would submit that even an hour's delayin the facts and circumstances of the case may prove fatal to theprosecution. He would further submit that the conduct of PW 1 –Vishal indicates him to have not witnessed the incident. He did notintervene to save his cousin (deceased) nor did he raise shout.Learned counsel would further submit that PW 2 -Ransing, anotherso-called eye-witness, did not stand by the prosecution. There areglaring inconsistencies between the evidence of PW 1 and PW 2.8.As regards the disclosure statement made by A1 andseizure of knife, pursuant thereto, is concerned, learned counselwould submit that the C.A. report thereof simply indicates that therewas human blood. As such, the C.A. report does not support theprosecution in its entirety. According to learned counsel, neitherauto-rickshaw driver nor the persons who have been named in theFIR, have been examined as prosecution witnesses. PW 1 – Vishal 6Cri. Appeal No.143 of 2020was an interested witness. Learned counsel would further submitthat the questions put to the appellants in their examination underSection 313 of Cr.P.C. were composite. No contents of the C.A.reports were put to the witnesses. Same cause material prejudice tothem in their defence. According to him, the knife was seized fromunder heap of saw-dust. The Investigating Officer, while forwardingknife to C.F.S.L., did not solicit opinion as regards, whether particlesof saw-dust were found thereon. As regards disclosure statementrelating to motorcycle is concerned, learned counsel would submitthat the FIR is silent to describe on what kind of motorcycle, theassailants had fled. Recovery of motorcycle from an open place, i.e.from in front of house of A2 would, therefore, be irrelevant underSection 27 of the Evidence Act. Learned counsel relied on thefollowing authorities, to ultimately urge for allowing the appeal:-“(i)Asraf Ali Vs. State of Assam, 2008 Cri. L.J. 4338;(ii)Kalyan s/o. Deorao Sawase Vs. State of Maharashtra, 2021(6)Mh.L.J. (Cri.) 321;(iii)Jai Prakash Tiwari Vs. State of Madhya Pradesh, AIR 2022 SC 3601;(iv)Amar Singh Vs. State of (NCT of Delhi), AIR 2020 SC 4894;(v)Mallappa and ors. vs. State of Karnataka, 2024 DGLS (SC) 78
Legal Reasoning
23Cri. Appeal No.143 of 2020“5.4.2 In the case of Rai Sandeep alias Deepu (supra),this Court had an occasion to consider who can be saidto be a “sterling witness”. In paragraph 22, it isobserved and held as under:“22. In our considered opinion, the “sterlingwitness” should be of a very high quality andcalibre whose version should, therefore, beunassailable. The court considering the versionof such witness should be in a position toaccept it for its face value without anyhesitation. To test the quality of such a witness,the status of the witness would be immaterialand what would be relevant is the truthfulnessof the statement made by such a witness. Whatwould be more relevant would be theconsistency of the statement right from thestarting point till the end, namely, at the timewhen the witness makes the initial statementand ultimately before the court. It should benatural and consistent with the case of theprosecution qua the accused. There should notbe any prevarication in the version of such awitness. The witness should be in a position towithstand the cross-examination of any lengthand howsoever strenuous it may be and underno circumstance should give room for anydoubt as to the factum of the occurrence, thepersons involved, as well as the sequence of it.Such a version should have co-relation witheach and every one of other supportingmaterial such as the recoveries made, theweapons used, the manner of offencecommitted, the scientific evidence and theexpert opinion. The said version shouldconsistently match with the version of every 24Cri. Appeal No.143 of 2020other witness. It can even be stated that itshould be akin to the test applied in the case ofcircumstantial evidence where there should notbe any missing link in the chain ofcircumstances to hold the accused guilty of theoffence alleged against him. Only if the versionof such a witness qualifies the above test aswell as all other such similar tests to beapplied, can it be held that such a witness canbe called as a “sterling witness” whose versioncan be accepted by the court without anycorroboration and based on which the guiltycan be punished. To be more precise, theversion of the said witness on the corespectrum of the crime should remain intactwhile all other attendant materials, namely,oral, documentary and material objects shouldmatch the said version in material particulars inorder to enable the court trying the offence torely on the core version to sieve the othersupporting materials for holding the offenderguilty of the charge alleged.”30.When PW 1 was expected to be at his home to receiveKisan by 10.00 p.m., and there being no conversation between thetwo post cellphone call of 08.00 p.m. changing the plan, PW 1 had noreason to go to Jalgaon square to receive Kisan. His conduct in notintervening to save Kisan or raising shout for help is unnatural. Whenaccording to him, the incident took place at a dirty and muddy placeand the clothes of deceased were soiled with mud, the Investigating 25Cri. Appeal No.143 of 2020Officer found the clothes of the deceased were not soiled. WhenPW 1 claimed to have lifted Kisan, placed him in auto-rickshaw andadmitted him to the hospital, it is strange that neither his hands norclothes on his person were stained with blood of the deceased. Tomany of the questions, PW 1 either claimed ignorance or testified tohave not been remembering. In one breathe, he says that thedeceased was standing while he was assaulted, in the next breathe,he testified that while the deceased was fallen on the ground, he wasstabbed. Moreover, PW 2 on whose evidence the prosecution relieswas even not suggested about presence of PW 1. It was theprosecution which had confronted PW 2 with his statements underSections 161 and 164 of Cr.P.C., wherein presence of PW 1 has notbeen made out. For all these reasons, we do not find evidence of PW1 to have been inspiring confidence.31.So far as recovery of motorcycle pursuant to thedisclosure statement made by A2 is concerned, there is nodescription of the vehicle given in the FIR, on which the assailantsfled. The vehicle was seized while it was in parked position in frontof house of A2. Said recovery and disclosure statement made by A2are, therefore, not relevant under Section 27 of Evidence Act. So faras recovery of knife is concerned, even if we rely on said evidence as 26Cri. Appeal No.143 of 2020it is, the C.A. report indicates that it was stained with human blood.The test relating to ascertaining blood group of deceased was foundto be inconclusive. The seized Muddemal namely, the articles, i.e.clothes of the deceased, knife, clothes of PW 1 indicate that theblood group of the blood found thereon could not be determined.The prosecution case, therefore, could not be said to have beenfurthered by the C.A. reports. 32.There is another aspect of the matter. The InvestigatingOfficer had immediately paid visit to the crime scene pursuant to thestation-diary entry made by Police Station Officer Kulkarni.Shri.Kulkarni had informed him that a message was received thatsome altercation took place at Jalgaon square. When he went there,he saw crowd of people. PSO Kulkarni has not been examined. WhilePW 8 Navnath, Investigating Officer had paid visit to the crime sceneimmediately, i.e. before registration of FIR, he admitted to havelearnt names of the assailants. He did not name them nor did herecord statements of the persons who were present there from whomhe learnt names of the assailants. The prosecution did not examineany of the independent witnesses named in the FIR or who werefound present at the crime scene. While PW 8 had paid visit soonafter PSO informed him, he did not notice blood stains or marks of 27Cri. Appeal No.143 of 2020struggle at the crime scene. The crime scene was pointed out by PW1 on the following day for drawing the crime scene panchnama.Whether the incident really took place at the place pointed by PW 1is best known to him. The crime scene panchnama is not relevant inview of Section 7 of Evidence Act since neither blood of the deceasednor marks of struggle were noticed thereat. PW 8 InvestigatingOfficer testified that the spot of incident was not dirty place and hedid not notice any dirt or mud on the clothes of the deceased. Thispiece of evidence is grossly inconsistent with the evidence of PW 1and it is, therefore, reiterated that presence of PW 1 at the crimescene is doubtful. Based on such evidence, the trial court ought notto have convicted the appellants.33.For the reasons stated herein above we are not at onewith the findings recorded by the trial court. Interference with theimpugned order of conviction and consequential sentence is,therefore, warranted. The appeal, thus, succeeds.(i)The appeal is allowed.(ii)The order of conviction and consequential sentencedated 24.12.2019, passed by learned Addl. Sessions Judge, Jalgaon,in Sessions Case No.64 of 2017, for the offence punishable underSection 302 read with Section 34 of Indian Penal Code, is set aside.The appellants stand acquitted thereof. 28Cri. Appeal No.143 of 2020(iii)Appellant no.1 - Pravin @ Bhangarya Bhimrao Patil is injail. He be released forthwith, if not required in any other case.(iv)Appellant no.2 - Ravindra Adhar Sonwane has alreadybeen released on bail. His bail bond stands cancelled. (v)Fine amount deposited by the appellants, if any, berefunded to them. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP
Arguments
7Cri. Appeal No.143 of 2020In the second breathe, learned counsel for the appellants, submitsthat at the most, it can be a case of offence under Section 304 Part IIof Indian Penal Code.9.Learned APP would, on the other hand, submit that it isthe quality and not quantity of evidence that matters. She meant tosay that the conviction can be based even on the testimony of solewitness. According to her, the evidence of the informant isconsistent with his FIR. Same suggests, his evidence before thecourt has been corroborated by his previous statement in the natureof FIR. In relation to the memorandum of recovery statement, shewould submit that the knife was recovered from below the heap ofsaw-dust. According to her, though it was an open space, the knifewas not noticeable to anyone other than the person, who had hiddenit at that place. According to learned APP, recovery of anyincriminating article from a place which is open or accessible toothers, shall not vitiate the evidence under Section 27 of theEvidence Act. She relied on the judgment in the case of State ofH.P. Vs. Jeet Singh, AIR 1999 SC 1293. On the question ofinconsistencies interse prosecution evidence, she would submit thatno much importance could be given to minor discrepancies which donot go to the root of the matter and shake the basic version of the 8Cri. Appeal No.143 of 2020witnesses. She relied on another judgment of Hon’ble SupremeCourt in the case of Bharwada Bhoginbhai Hirjibhai Vs. State ofGujarat, 1983 Cri. L.J. 1096, to ultimately urge for dismissal of theappeal.10.Considered the submissions advanced. Perused theevidence on record. Also perused the judgment impugned herein.11.Let us advert to the evidence on record and appreciatethe same. Admittedly, Kisan was assaulted at a place near Jalgaonsquare at Pachora town, by 10.00 p.m. on 24.02.2017. Hesuccumbed to the injuries while under treatment. He was cousin ofinformant (PW 1 – Vishal). Deceased Kisan was professional driver.On the fateful day, he had come to Pachora to deliver mineral waterbottles of Bisleri brand. Admittedly, he had informed PW 1 – Vishalon phone by 08.00 p.m. in the evening of the very day that afterunloading of the water-bottles at a place near Railway Station, hewould visit his (PW 1 – Vishal) residence by 10.00 p.m. 12.PW 7 – Dr. Mandar conducted postmortem on the mortalremains of Kisan. Following injuries were noticed on his person:-“(i)Large 6x2 cm. incise round purporting type,involving all layers of abdomen and intestine was jettingout of the defect in left lateral part of the abdomen. 9Cri. Appeal No.143 of 2020(ii) Large 5x2.5 cm. incise purporting wound in rightiliac fossa obliquely placed involving all layers of abdomen.(iii)Small 3x1.5 cm. purporting incise wound on leftside of chest in axilla at T-5 T-6 rib level and bone deep andit was found in thorax.(iv)Small 3x1x2.5 cm. deep purporting incise wound onleft side just lateral to vertebral column on back.The post mortem report (Exh.95) indicates, “death due to terminalcardio-respiratory arrest due to hypovolumic shock (hemorrhagicshock)”. PW 7 was shown the knife seized pursuant to the disclosurestatement made by A1. According to him, all the injuries noticed onthe person of the deceased were possible by such knife. During hiscross-examination, he testified that all the injuries might be possiblewith different weapons used for different injuries. He admitted tohave not mentioned time of death in the post mortem report.13.PW 4 – Yuvraj is witness to inquest panchnama (Exh.68).He was nephew of the deceased. It was suggested to theInvestigating Officer (PW 8) that all the witnesses were either relatedto the deceased or belonged to his community. Learned APPadverted to the inquest panchnama (Exh.68), indicating that thedead body was identified by PW 1. According to her, the inquestpanchnama corroborates PW 1's evidence. Close reading of the 10Cri. Appeal No.143 of 2020inquest panchnama (Exh.68) would indicate that there were twoinjuries on the stomach of the deceased. His intestine had come out.The description of the clothes on the person of the deceased hasalso been given therein. There is last column titled as “Abhipray”.The matter appearing therein is reproduced in verbatim below:-अभि(cid:3)प्राय :- आम्हा व पंचाचे मते कि(cid:19)सन उर्फ(cid:24) किवठ्ठल जोरसिंसगराठोड यास धारदार चा(cid:19)ूने झालेल्या जबर वाराच्या जखमामुळेमरण आले असावे. तरीपण मयताचे किनश्चि/त (cid:19)ारण समजून येणे(cid:19)ामी प्रेत पोस्टमाॅट(cid:24)म साठी पाठकिवले आहे. तरी प्रेतावर पोस्टमाॅट(cid:24)महोऊन ऍडव्हान्स सर्टिटकिर्फ(cid:19)ेट किमळणेस किवनंती आहे. टीप :- मयताचा रक्त नमुना (cid:19)ाढून सिसलबंद किमळणेस किवनंती आहे.The dead body was identified by PW 1 for inquest. It was drawn at09.00 in the morning on the following day. He did not name thenames of the assailants (appellants), in the inquest. Be that as itmay. 14.The fact remains that the deceased met with homicidaldeath. The question is whether the appellants are authors thereof?Since the incident took place at 10.00 in the night, a question wasraised as to whether electricity/light was there. Learned APPadverted our attention to the scene of offence panchnama (Exh.65),wherein existence of a lamp-post was shown in the vicinity. Shemeant to say that there was sufficient light to identify the assailants. 11Cri. Appeal No.143 of 2020She then adverted our attention to the evidence of the InvestigatingOfficer, who had collected information from Municipal Council,indicating that public electric supply was not disrupted at thematerial time.15.PW 1 – Vishal (informant) gave his evidence consistentwith his FIR. It is in his evidence that deceased Kisan was his cousin.Kisan had called him by 08.00 p.m. on 24.02.2017, informing to havecome to Pachora to deliver mineral water bottles of Bisleri brand. Itis further in his evidence that Kisan had informed him that afterunloading of the bottles at a godown near Railway Station, Pachora,he would come to his (PW 1 – Kisan) house by 10.00 p.m. It isfurther in his evidence that he along with his cousin PW 2 – Ransingwere waiting for Kisan at Jalgaon square. It was about 10.00 p.m.Kisan came in Eicher vehicle and met him. Kisan left for urinatingnear an Omelette-cart (closed). When Kisan was returning, both theappellants were standing at the public lamp-post. Kisan dashed withA1. Quarrel, therefore, ensued between the two. A1 abused him andeven started beating. It is further in his evidence that A2 gripped hiswaist from behind. PW 1 – Vishal meant to say that it was tofacilitate A1 to give blow on the stomach of the deceased with knife.It is further in his evidence that A1 gave two blows on the stomach of 12Cri. Appeal No.143 of 2020Kisan. Kisan made effort to get rescued. In that process, A1 stabbedin his back. Kisan thereby fell on the ground. Both the appellantsthen fled on motorcycle towards Warkhedi road. It is further in hisevidence that at that time, PW 2 and three-four others namely,Santosh Hatkar, Anil Pawar, Bapu Hatkar, Shriram Hatkar andLaxman Shinde were present. An auto-rickshaw was hired. Kisanwas taken to rural hospital, Pachora. He accompanied Kisan in theauto-rickshaw to the hospital. PW 1 – Kisan identified the clothes ofthe deceased and knife shown to him before the court.16.PW 1 – Vishal was subjected to a searching cross-examination. He was first confronted with his FIR. Admittedly, he didnot give description and colour of the clothes deceased was clad innor did he give description of the knife with which Kisan wasassaulted. In our view, PW 1 necessarily came to know about thesethings during investigation and his evidence in examination-in-chiefin this regard, would, therefore, be of not much assistance for theprosecution.17.It is further in the cross-examination of PW 1 – Vishal thatat the time when the deceased was assaulted by knife and he fell onthe ground, no blood spilled from his body. He denied that afterKisan fell on the ground he was again assaulted. At the time when 13Cri. Appeal No.143 of 2020Kisan was assaulted by knife he was not standing but had fallen onthe ground. PW 1 admitted that the spot of incident was dirty place.When Kisan fell on the ground at the spot of incident, his clothesbecame muddy. There were no blood stains on his pant. It isfurther in the evidence of PW 1 that his (PW1) hands or clothes werenot stained with blood during he lifted Kisan from the spot andplaced him in the auto-rickshaw and accompanied him to admit himto the hospital. Even the clothes and body parts of other personswere not stained with blood. There were no blood stains in the auto-rickshaw in which he was taken to hospital. He denied that he statedthe name of auto-rickshaw driver to the police or they inquired him.He did not not know whether said rickshaw driver was witness in thepresent case or not. He denied that said rickshaw-driver was knownto him. It is further in his evidence that he did not shout for help.The police did not find blood stains on the spot of the incident duringpreparation of spot panchnama. There were no marks of struggle onthe spot of the incident. Existence of electric poles at and aroundthe scene of offence has been brought on record through thesuggestion in the nature of admission given on behalf of A2. It wasonly suggested to him as to whether he knew, the lamps on thosepoles were glowing. 14Cri. Appeal No.143 of 202018.It is further in the evidence of PW 1 - Vishal that prior tothe incident, he received deceased’s phone call on his cell phoneno.7507737141. He was unable to say as to from which mobilenumber of the deceased he had received phone call. He did notknow whether he had made any call from his cellphone number afterhe received call of the deceased at 08.00 p.m. to the time he lodgedFIR. This witness voluntarily stated that he did not know means hedid not remember. It is further in his evidence that he had not givenhis mobile handset to the police for checking it at the time of lodgingthe FIR. He did not know as to whether deceased was having hismobile handset with him (deceased) when he died. It is further in hisevidence that he was present at the time of preparation of inquestpanchnama. He did not remember as to whether mobile handsetwas on the person of deceased while inquest panchnama was drawn.It is further in his evidence that he did not remember whether he hadasked to the police to see the mobile of the deceased. The policehad not read over the contents of inquest panchnama. The policehad not inquired with him regarding the mobile handset of deceasedat any point of time nor did they record statement in that regard. Headmitted that he had no other evidence to show except his wordsthat he received phone call of the deceased prior to the incident. Itis further in his evidence that when the deceased made phone call to 15Cri. Appeal No.143 of 2020him he (deceased) stated that he would be coming to his home by10.00 p.m. It did not happen that he waited at his home till 10.00pm. for deceased. Deceased had stated him that he would meethim at his home and not any other place. It is further in his evidencethat he was unable to say as to whether his house was situatedbetween the spot of incident and Pachora Railway Station. Hedenied that if proceeded from Pachora Railway Station, first hishouse comes and thereafter the spot of incident. It did not happenthat prior to the incident, he made phone call to his cousin brotherRansing (PW 2) and called him. It is further in his evidence that hedid not remember whether he had stated to the police regarding howRansing came at the spot of incident. He denied to have not statedto police as to how Ransing arrived at the spot of incident andtherefore, it was not mentioned in his report. He denied that Ransingand other witnesses were not present at the spot of incident.19.It is further in the evidence of PW 1 – Vishal that hedenied that the witnesses arrived at the spot after the incident. Hewas unable to say whether he was aware or not regarding whatquarrel occurred between the deceased and the appellants while helodged the report. According to him, said quarrel occurred for twominutes. During the quarrel, he did not intervene nor did he feel to 16Cri. Appeal No.143 of 2020intervene. He did not remember at what place Eicher vehicle wasparked at that time. He did not remember whether the Eichervehicle was parked on the left side while coming from Pachora. Hedenied that Eicher vehicle was parked near him. He was unable tosay whether Eicher vehicle was parked on proper side of the road. Itdid happen that he went to Kisan (deceased) after the appellantsassaulted him (deceased) He did not remember as to how manystabs were given to Kisan after he was fallen down by A1. He wasunable to say as to what A2 was doing and he was at what distancewhen Kisan fell on the ground. He admitted that there was no earlierdispute between the appellants and the deceased. It is further in hisevidence that he did not know that Kisan (deceased) was going tostop at Jalgaon square. According to him, no third person waspresent at the spot of the incident, except he himself and thewitnesses named in the FIR.20.It is further in the evidence that he did not know whetherthere was Cleaner in the vehicle. According to him, the spot ofincident was dirty and muddy place. As a result of fall of Kisan, theclothes on his person were stained with mud. Neither he nor PW 2intervened. He was at a distance of about 30 ft. away while theassault was going on. He even did not remember whether he helped 17Cri. Appeal No.143 of 2020while shifting the deceased in the auto-rickshaw. He even did notremember which place he occupied in the auto-rickshaw. The policedid not seize his clothes during investigation. He did not rememberwhether the Medical Officer, Pachora, inquired with him about theincident. According to him, the Doctor told him Kisan to have passedaway.21.PW 2 – Ransing is said to be another eye-witness. He toowas cousin of deceased. It is in his evidence that by 9.30 p.m. on24.02.2017, he received phone call of Kisan (deceased) informinghim to have come to Jalgaon square. He (Kisan) asked him (PW 2)to meet him there. PW 2, therefore, went to Jalgaon square. It isfurther in his evidence that Kisan had parked Eicher vehicle nearomelette-cart at Jalgaon square. It is further in his evidence that hesaw the beating was on. Kisan @ Vitthal was present. According tohim, he learnt that there was quarrel between A1 and Kisan. A2 wasalso in the company of A1. When he reached that place, Kisan waslying on the road and he was being carried to hospital. It is further inhis evidence that he heard that somebody had assaulted Kisan withknife. It is further in his evidence that in the hospital, he saw Kisanto have been assaulted on his abdomen. It is further in his evidencethat he had seen crowd at the scene of offence. He heard that boththe appellants ran away. 18Cri. Appeal No.143 of 202022.Since PW 2 did not stand by the prosecution, learned APPcross-examined him in extenso. Material portion from his cross-examination is reproduced below:-“5.I went at Jalgaon square as I had received phonecall of Vitthal. It is not true to say that when I reachedthere, at that time, there was talk between Bhangarya andVitthal. It is true to say that at that time, friend ofBhangrya namely, Ravindra was present there. At thatplace there was one closed Egg Pav cart near Eicher vehicle.It is not true to say that at that time Ravindra had caughthold Vitthal from back side and Bhangrya was assaultingVitthal by knife. One road goes towards Warkhedi from thespot of incident. It is true to say that some of the personshad gone there to rescue Vitthal. It is not true to say that Iwas also among them. I do not know that when thosepeople had gone to rescue Vitthal at that time, Bhangryaand Ravindra went away on motorcycle towards Warkhedi.It is true to say that at that time, it was 10.00 pm. It is trueto say that at that time, people gathered there had carriedVitthal in auto rickshaw. It is true to say that due to assaultgiven to Vitthal in the said incident, the intestine of Vitthalhad come out of his abdomen. It is true to say that ShriramHatkar had rapped handkerchief on the intestine of Vitthal.It is true to say that Bapu Hatkar, Shriram Hatkar andLakshman Shinde had carried Vitthal in auto rickshaw toGovernment Hospital. It is true to say that while they werecarrying in auto rickshaw I was present there. It is true tosay that due to said incident, Vitthal had died. It is true tosay that Vishal Amarsing Rajput had lodged report inregard to said incident. It is true to say that 3 to 4 assaultswere given to Vitthal by knife on his abdomen and back. Itis true to say that I came to know that those assaults weregiven by Pravin Bhangrya. It is true to say that I was atJalgaon square during 09.30 to 10.00 pm. It is true to saythat the incident of assault to Vitthal occurred during saidperiod.” 19Cri. Appeal No.143 of 202023.It was suggested by learned APP to PW 2 that hisstatement was recorded on 04.03.2017, i.e. seven days after theincident. It was even suggested to him that he gave information tothe police as per the incident occurred. His attention was drawn toportion marked as “A” appearing in his statement dated 04.03.2017.He was further suggested that his statement under Section 164 ofCr.P.C. was recorded on 14.06.2017. It was further suggested to himthat he narrated the incident as occurred. The statement underSection 164 of Cr.P.C. of PW 2 is at Exh.154. It is the prosecutionwhich relies on it with a view to contradict PW 2.24.In the cross-examination undertaken by defence, PW 2testified that police had threatened to make him an accused in thecase. He was even detained for two days. The police accompaniedhim to Pachora Court for recording his statement. It was dark. Hedid not notice presence of PW 1 – Vishal at Jalgaon square. Heclaimed ignorance about the quarrel between the appellants and thedeceased. He admitted that his information about the incident washearsay. He went on to state that PW 1 was not present at the sceneof offence and therefore, he did not state his presence at the sceneof offence in his statement under Section 164 of Cr.P.C. 20Cri. Appeal No.143 of 202025.If we appreciate the evidence of both these witnesseswho are said to be eye-witnesses to the incident, both contradicteach other. According to PW 1, he along with PW 2 was waiting atJalgaon square for arrival of Kisan (deceased). PW 1, however,admitted in his evidence that he had not contacted PW 2 and askedhim to come to Jalgaon square to join him to receive Kisan(deceased). PW 2's statement under Section 164 of Cr.P.C. wasrelied on by the prosecution, wherein he did not mention presenceof PW 1 at Jalgaon square at the material time. His statement evenrules out presence of PW 1 at the scene of offence. Admittedly, hisstatement was recorded seven days after the incident. His attentionwas also adverted to portion marked as “A” appearing in his policestatement dated 04.03.2017. Attention was drawn by none otherthan the prosecution. In the statement, to which his attention wasdrawn, there was no mention of presence of PW 1. Learned APP inthe cross-examination of PW 2 did not suggest him that PW 1 waspresent at Jalgaon square. 26.The cross-examination of PW 1 would indicate that at onepoint of time, he says that the deceased was in standing position,while he was assaulted and A2 had held him from behind. In thesecond breathe, he testified that the deceased was lying on the 21Cri. Appeal No.143 of 2020ground and then, he was stabbed. Admittedly, PW 1 neither raisedshout for help nor intervened to save his cousin Kisan. His conductappears to be unnatural. Moreover, the presence of PW 1 in thenearby of the crime scene is doubtful since as per the plan betweenhim and the deceased, the deceased was to visit his residence by10.00 p.m. It was so decided between them during telephonicconversation that took place at 08.00 p.m. Admittedly, there was nophone call between the two after the phone call of 08.00 p.m.Therefore, there was no question of duo changing the plan anddeciding to meet at Jalgaon square. It is not that the deceased didnot know house of PW 1, since, according to the prosecution, thedeceased was residing with PW 1 in his house for many years.There is nothing to suggest any reasonable ground for PW 1 tochange his mind and to go to Jalgaon square to receive Kisan.According to PW 1, he did not contact PW 2 and asked him to cometo Jalgaon square. It has already been observed that PW 2, in hisstatement to the Magistrate, did not mention presence of PW 1 atJalgaon square. Said statement has been relied on by theprosecution while cross-examining PW 2. Similar is the case abouthis police statement. According to PW 1, neither his hands nor hisclothes were stained with blood in the process of lifting Kisan andshifting him to hospital at Pachora. PW 8 – Investigating Officer 22Cri. Appeal No.143 of 2020admitted that he did not notice blood stains on the clothes of PW 1.This makes presence of PW 1 doubtful at Jalgaon square at therelevant time. If PW 1 had really accompanied Kisan to the hospitalat Pachora, his name would have figured in the medical papers.M.L.C. papers have not been placed on record. 27.It is in the evidence of Medical Officer (PW 7 –Dr. Mandar) that the dead body of Kisan was brought by policeconstable for postmortem examination. Admittedly, the incidenttook place at a dirty and muddy place. According to PW 1, theclothes on the person of Kisan were soiled with mud. TheInvestigating Officer (PW 8) however testified that he did not noticeany mud on the clothes of the deceased.28.We are conscious of the fact that for proving a fact, noparticular number of witnesses is required (Section 134 of EvidenceAct). In short, conviction can be based on the sole testimony of awitness, provided it inspires confidence.29.For sustenance of conviction on sole testimony of awitness, such witness has to be of sterling quality in view of the ApexCourt judgment in the case of Santosh Prasad @ Santosh KumarVs. The State of Bihar (Criminal Appeal No.264/2020, decided on14/2/2020), wherein it has been observed thus :