ALIL MOLLAH AND ANR.versusSTATE OF WEST BENGAL

A                          ALIL MOLLAH AND ANR.
                                     v.
                           STATE OF WEST BENGAL

                                   JULY 18, 1996

B                 [DR. A.S. ANAND AND K.T. THOMAS, JJ.]

         Evidence-Sole eye witness--Evidentimy value of-Conviction can be
  based on the testimony of a single eye witness if he is a wholly reliable wit-
  ness-If single eye witness is only partly reliable there should be con-oboration
C of his testimony before recording conviction-Murder-<:onviction of accused
  based upon the single eye witness who was an employee of deceased-Legality
  of-Evidence suggesting that conduct of single witness was zmnatural-Witness
  maintaining unexplained silence-Making delayed statement to the police and
  relatives of deceased-Not appearing before the Investigating Officer-No cor-
  roboration of his evidence from any other independent source-Held, such a
D witness was not wholly reliable-It was unsafe to rely upon his evidence.
          Constitution of India, 1950 : Article 136.

       Appeal-Power of Supreme Court to re-appreciate evidence-Wit-
  ness-Admission made by him in his cross-examination materially detracting
E from his reliability not at all noticed by the courts below thereby resulting in
  miscaniage of justice-Held, appreciation of his evidence by Courts below
  was not justified.

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
F   400 of 1987.

         From the Judgment and Order dated 29.4.87 of the Calcutta High
    Court in Cr!. A. No. 353 of 1985.

           M.N. Krishnamani and Mrs. Sarla Chandra for the Appellants.

G          Ujjwal Banerjee and H.K. Puri for the Respondents.

           S.A. Syed, for the Complainant.

           The following Order of the Court was delivered :

H          This appeal by special leave is directed against the judgment of the
                                         666
                            ALILMOLLAl-Iv. STATE                           667

    High Court dated 29th April, 1987 upholding the _judgment of the trial       A
    court dated 19th september, 1985 whereby the appellants were convicted
    for an offence under Section 302/34 !PC 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
                                                                                   B
•   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 'lnquilab zindabad' all the miscreants includ-
    ing the appellants fled away. According to the prosecution story PW-3 and     c
    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 ran 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 D
    along Boalghata Road shouting slogans 'lnquilab 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 11 some unknown miscreants11 had com-       E
    mitted 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 occur-
    rence 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 F
    seized a number of incriminating articles from the spot including some
    empty cartridges etc. He held inquest on the 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 !PC. The trial court, as already noticed, convicted
    them for the offence under Section 302/34 !PC and sentenced them to G
    suffer life imprisonment. The appellants unsuccessfully challenged their
    conviction and sentence before the High Court.

         Both the trial court and the High Court disbelieved PW. 6 Tassirud-
    din Molla whom the prosecution had set up as one of the eye witnesses. H
    668                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A 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
B 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
C 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
D 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 estab-
  lished.

E         We have given our thoughful consideration in the respective submis-
    sions 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 fmds
F   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.
G   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
H any alarm when his master was being assaulted, he did not go near his
                            ALILMOLLAlfr. STATE                            669

    employer even after the assailants had fled away to see the condition in A
    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-exan1ination 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 B
    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 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 c
    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 D
    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 E
   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, therefore, 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
                                                                                   F
  .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 G
   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. lwo 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 H
   670                    SUPREME COURT REPORTS II996J SUPP. 3 S.C.R.

A arc of the opinion that the appreciation of his evidence hy both the courts
  hclo\v \Vas not proper as adn1issions n1adc by hi111 in his cross-examination
    which materially detracted from his reliability were not al all noticed by
    the courts below thereby resulting in miscarriage of justice. To perpetuate
  an error is no virtue but tu rectify it is a con1pulsion of judicial conscience.
  We find ourselves unable lo agree with the findings recorded by the courts
B
  below with regard lo the reliability of PW3. There is no corroboration of
  his evidence lo connect the appellants with the crime. In our considered
  view, ~1n the basis of critical analysis of the evidence on the record, \Ve are
  of the opinion that the case against the appellants has not been proved
  beyond a reasonable doubt. Consequently, this appeal succeeds and is
C allowed. The conviction and sentence of the appellants is hereby set aside.
  The appellants are on bail. Their bail bonds shall stand discharged.

    T.N.A.                                                      Appeal allowed.