JUDGEMENT SUMMARY: Dasu and Ors. v. State of Maharashtra
DATE: 8th March, 1985
JUDGES:
• Justice S.P. Kurudukar
• Justice Tated
PARTIES: Dasu (APPELLANT)
State of Maharashtra (RESPONDENT)
SUBJECT: In this case the court deals with the question that whether a conviction can be based on the sole testimony of a witness or not. Also, the case looks into whether inconsistency in the report is acceptable or not.
AN OVERVIEW
1. The present judgement deals with an appeal case against the decision of the Sessions Court in which the appellants was convicted for the offence under section 302 IPC and sentenced life imprisonment.
2. The deceased, Wilson along with Sunder was trying to release his friend Chandya who was caught and taken to Kurla Police Station, but they not succeed and after that Sunder went to his residence. Wilson was also going home with Saiba. Saiba was walking ahead of Wilson and heard sound of attack on Wilson. When he turned, he found Wilson was being assaulted by 3 accused and they 2 of them had iron bars and the third one had a bamboo stick in his hand. Out of fear he ran away to Wilson’s aunt Jakina. When she got to know about the assault, she along with her nephew went to the place of incidence where they found Wilson’s dead in a pool of blood and took him in a taxi to the Police Station.
3. Wilson was then taken to the hospital where he was declared dead and P.I. Bhambre recorded the report.
4. Clothes stained with blood were seized from the body of Wilson. According to the doctor Wilson received several injuries. Each of the head injury was sufficient in the ordinary course to cause death. The internal injuries were a result of the external injuries and could be caused by bamboo stick and iron bars.
5. Accused no. 1 informed about the place of iron and produced it. It had blood stains. Accused no. 3 informed about the bamboo stick and led the police to it. It was then produced stained with blood. Blood stained earth was collected from the place of residence.
6. All 8 articles were seized during investigation and then were sent for chemical analyzer. The blood analysis test showed that the clothes of deceased had stains of blood group A. The shirt that was seized from accused no.1, the iron bar and the bamboo stick also had stains of blood group A.
7. Charge sheet was sent against the three accused before the magistrate who committed the case to the Sessions Court. Murder charges were formed against the three of them. The defence of the accused was of total denial of the facts. They pleaded not guilty and claimed to be tried.
8. The additional Sessions Judge found that the prosecution has satisfactorily proved the accused assaulted the deceased and caused injuries which were in furtherance of their common intention to kill the deceased. Thus, all the accused were convicted.
IMPORTANT PROVISION
INDIAN EVIDENCE ACT
- Section 145- Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.1145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
- Section 154(1)-The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
ISSUES
The key issues in this case are as follows:
- Whether the conviction of the accused by the Sessions Judge was correct or not?
- Whether inconsistency in the report of the witness is acceptable or not?
- Whether the sole testimony of the witness is reliable or not?
ANALYSIS OF THE JUDGEMENT:
- In this case, the appellant contended that the conviction rests solely on testimony of Saiba. Saiba being interested in the conviction of the 3 accused, the conviction cannot be based on his sole testimony.
- Further it was contended that there was overwriting in the timings and report of Saiba appears to be written subsequently after the commencement of investigation. Report of Saiba was treated as FIR and the same was not mentioned in the FIR from. FIR should have been written by PSI, but instead it was recorded by PI, and thus, it should not be considered.
- Answering to the contentions of the appellants, the court stated that FIR should be recorded only by PSI is a vague contention. Referring to section 154 CrPC the court observed that PI was present and was working as supervising police officer and being a senior recorded the FIR and registered the offence and took over the investigation. It is not incumbent that the Station House Officer himself should record the FIR.
- To the contention that the whole report was not written in the FIR, the court again referred to section 154(1) of CrPC, and stated that it is not necessary that the whole report should be there in the FIR. Only the substance has to be entered in the FIR form and the same has been done in the present case. Thus, this contention also stands vague.
- Answering the next contention of overwriting in the timings, the court relied on the timings of the court on the testimony of PI Bharambe who denied that the offence was written in a different ink. The court found nothing dubious in the genuineness of the FIR.
- Further, it was contended that there inconsistencies in the report of Saiba. He nowhere mentions that there was source of light in which he saw the accused, but in the witness box he states that he saw them in the moonlight.
- The court observed that indeed there were inconsistencies in Saiba’s evidence and observed that each and every inconsistency does not affect the credibility of an eye-witness. No one can expect a witness giving evidence two years after the incident to describe the incident without any inconsistency with his earlier statement recorded immediately after the incident. Only tutored witnesses will be able to give evidence two years after the incident without any inconsistency.
- To check whether the night of the incident was moonlit or not, the court looked into the observation of the Trial judge who found in the almanac that the night between 15th and 16th December, 1981 was Marghashirsh Panchami of the fortnight and the moonrise was at about 9.23 p.m., and the incident having taken place at about 2.15 a.m. there was a moonlit night and it was possible for the complainant Saiba to see and identify the assailants and the weapons they had. Thus, the court opined that trial judge was right in belirving the testimony of Saiba.
- The court further stated that under the law it is not necessary that there should be more than one witness to prove any fact. If the Court finds that a single witness examined by the prosecution is a truthful witness, the conviction can be based on the sole testimony of that witness. Relying on the testimony of Saiba, the court found that all the three accused in furtherance of their common intention assaulted deceased Wilson and at the time of the assault the accused Nos. 1 and 2 were armed with iron bars and the accused No. 3 was armed with a bamboo stick.
- Thus, the court found no substance in the appeal and dismissed the case.
CONCLUSION
- It is very well established that there is no legal impediment in convicting a person on the testimony of a single witness provided he is wholly reliable. In the present case, the Court has thoroughly examined all the contentions and evidences and has left no gaps for error. Each of the statements that were put into questions were looked upon and based on that the court found the sole witness reliable and held that there thumb rule that conviction cannot be based on sole testimony.
- In cases like these where such gruesome murders are taking place in the middle of the night, it is quiet difficult to find several witnesses. Thus, the case completely depends on a single eye witness. If sole testimony cannot be relied upon, justice could not be served in such cases. Thus, the court was correct in deciding that conviction can be based on sole testimony of witness.
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