Judgment:
S.P. Kukday, J.
1. Learned Additional Sessions Judge, Ahmednagar convicted appellants of the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code (for short 'IPC'). Appellants were sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000 each, in default, to suffer SI for one year for the offence punishable under Section 302 read with Section 34 IPC. They were further sentenced to suffer RI for five years and to pay a fine of Rs. 1,000/-. In default to suffer SI for one year for the offence punishable under Section 201. In addition, the learned Trial Judge convicted appellant No. 1 for offence punishable under Section 407 of the IPC and sentenced him to suffer RI for five years and to pay a fine of Rs. 1,000/-, in default to suffer RI for one year. Appellants have impugned this order dated 22nd August, 1997, in the present appeal.
2. Prosecution case stated in brief is that Prakash Bankar (PW 10) purchased truck bearing No. MH 09 A-9905 from Bhanudas Alhat. However as the transaction was not complete the documents were not submitted to R.T.O. for registration of vehicle in the name of PW 10. PW 10 was doing business only with one truck, as such, generally, he used to accompany the Driver himself. However, in his absence, the Driver was allowed to enlist services of any one who was available for the trip. PW 10 knew appellant No. 1 and had employed him as a Driver. Goods used to be transported at various places including Chandrapur, Nagpur, Nanded, Ulhasnagar and Bangalore. The last trip of PW 10 was at Ulhasnagar. He returned to Pune on 7-1-1997. At Pune, he came to know that, goods are available for transportation, with Suyog Transport. Ahmednagar, PW 10 had sustained injury to his teeth, therefore, he sent appellant No. 1 to Ahmednagar. At Ahmednagar, appellant No. 1 was told that onions were to be loaded from Karmala and delivered to Shivam Transport at Bangalore. Appellant No. 1 found that Sahebrao Rokde (PW 8), a boy of 18 years was available for the trip. He therefore, took Sahebrao as a Cleaner and went to Karmala. Onions were loaded at Karmala and were delivered to Shivam Transport at Bangalore. Shivam Transport gave another assignment to appellant No. 1 for transporting groundnuts from Gudibanda District, Anantpur (A.P.) to Nanded. Appellant No. 1, reached Gudibanda on 10-1-1997. Nasiroddin (PW 3) is owner of Shahanwaz Industries which undertakes unsealing and sale of groundnuts. His factory which was closed for some time, had opened recently and was dispatching first consignment of 152 groundnut bags to Kasatwar Seeds & Fertilizers, Nanded. Each bag contained 80 kg. of groundnuts. Govind Rajalu {PW 13) and Chand Pasha (deceased) were working for Nasiroddin. On the night of 10th, PW 13 loaded 152 bags of groundnuts in the truck with the help of Hamals in the presence of appellant No. 1 and Cleaner of the truck. On the next day, two credit bills, way bills etc. were prepared in respect of the assignment of 152 bags for Rs. 2,50,000/- including sales Tax, AMC tax etc. Chand Pasha was to accompany the goods and collect payment from Kasatwar Seeds & Fertilizers at Nanded. Relevant documents and money for expenses were given to Chand Pasha. The truck left Gudibanda on 11-1-1997 at about 11.00 a.m. and entered Maharashtra via Solapur. Appellant No. 1 is the native of Dhanegaon. He, therefore, took a detour and went to Dhanegaon for visiting his family. They reached Dhanegaon at about 12.00 noon. While returning, appellant No. 1 brought appellant No. 2 with him. The truck left Dhanegaon at about 6 O' clock in the evening. On their way, they collected the tyre which was given for repair at Kharda and commenced onward journey. At about 10.00 to 11.00 p.m. they reached Moharighat. While they were negotiating the Ghat, appellant No. 2 started throttling deceased Chand Pasha who was sitting between himself and appellant No. 1, who was driving the Truck. Appellant No. 1 stopped the truck and asked PW 8 to put stones under the wheels of the truck. Appellant No. 1 then hit the deceased on his head with iron tomy, while appellant No. 2 twisted testicles. Chand Pasha succumbed to the injuries. His body was taken out and kept on the road. The appellant No. 1 , again, dealt blow on the face of the deceased to disfigure it, All the garments except nicker were removed and the dead body was kept in a cement pipe under Wagh-Hira Bridge. Mouth of the pipe was closed with stones. Appellants and PW 8, then, started onward journey. After negotiating some distance appellant No. 1, again, stopped the truck and commanded PW 8 to conceal the clothes in the cement pipe under another small Bridge.
3. After the incident, the appellants stopped at village Pali at about 2.30 a.m. on 14-1-1997. Appellant No. 1 went to the house of Akbar (PW 6) who is the husband of his wife sister and told him that the Transporter is not making payment, therefore, goods are detained. He requested Akbar to keep the goods for 2-3 days. As there was no place for storing the goods at his house, PW 6 took the appellant No. 1 to the house of Kisan Yele (PW 5). PW 5 agreed to store the goods for 2-3 days on payment of Rs. 80. On the next day morning, 147 bags of groundnuts were unloaded at the house of PW 5. Five bags retained by appellant No. 1 were given to his relative Sikander Khan Pathan of Yelam Ghat Tq. Beed for selling the groundnut at his shop. It was agreed that money realised would be given to appellant No. 1. During onward journey, the appellants stopped at a Dhaba on Latur-Barshi road. Appellants took meals at the Dhaba and were engaged in discussion about, strength of the deceased and started conversing in low tone. PW 8, thus, suspected that they are planning to eliminate him. Therefore, when the appellants went to sleep in the truck, PW 8 climbed a tempo which had slowed down at speed breaker. This tempo came to Ahmednagar. From there, PW 8 returned to his village Wadgaon Sautal. Appellant No. 1 brought back the vehicle to the house of PW 10 at Moshi and informed PW 10 that, during the journey, the vehicle developed some technical snag, therefore, Munimji of the consignor had shifted goods to another truck for making delivery at Nanded. On the pretext of the death of his grandmother, Appellant No. 1 took leave and Rs. 1.000/- from PW 10.
4. After waiting for about five days, as there was no news from Chand Pasha, his father Sayyad Abbas (PW 2) got uneasy and made enquiries with PW 3. They contacted Shivam Transport and were assured that the truck regularly plies on the route and there was no cause to worry. However, PW 2 was not satisfied. He, therefore, went to Bangalore and obtained information about the truck number and the address of the Mahaveer Transport, Pune, with whom the truck owner was usually doing business. PW 2, then, came to Pune and made enquiries with Ravindra, owner of Mahaveer Transport. Ravindra contacted PW 10 who was to deliver consignment of onions to Bangalore. On receiving information that the consignment of groundnut had not reached Nanded, PW 10 abandoned trip to Bangalore and came to Pune. In the meanwhile, on 22-1-1997 Police Patil of Mohari got information that a dead body is lying in the cement pipe under Wagh-Hira Bridge. This information (Exh. 42) was recorded by Police Head Constable Bhosari (PW 14) of Kharda outpost. On the basis of this information, he prepared occurrence report (Exh. 43) and sent it to Jamkhed Police Station. PW 14, then, held inquest and prepared Panchnama (Exh. 11). He also prepared Panchnama of the spot (Exh. 12) and seized underpant which was the only garment on the dead body Seizure Memo (Exh. 13). As the body had decomposed. Medical Officer Dr. Goyal performed post-mortem at the spot. He prepared postmortem report (Exh. 51) expressing inability to determine the cause of death as the body had decomposed. On 31-1-1997 appellant No. 1 met Harishchandra Sahani (PW 7) with his friend Nashir Tashewala. Appellant No. 1 requested PW 7 to stock 40 bags of groundnuts at his shop. Appellant No. 1, PW.7 and Nasir Tashewala went to the house of PW 5 at Pali in a tempo and brought 40 groundnut bags to Kharda. These bags were stored in the shop of PW 7.
5. At Pune, PW 10 spoke to PW 2 and went to Dhanegaon in search of appellant No. 1. Appellant No. 1 was not at his native place but was traced at Kharda. On the pretext that a new permit has to be obtained. PW 10 brought him to the Office of the Transport Company at Pune where enquiries were made with appellant No. 1 by PW 2 and others. Appellant No. 1 repeated the same story that on account of breakdown of vehicle, deceased had transferred goods to another truck bearing No. AP 07 6268. PW 2 communicated this information to PW 3 who made enquiries with Regional Transport Office at Hyderabad, Guntur and Vijaywada, with the help of Broker Ramesh. However, it was found that no vehicle bearing No. AP 07 6268 was registered at these places. PW 2, then, returned to Gudibanda. As the goods were not traced on 20th or 21st. PW 3 with his Broker Ramesh and representative of Shivam Transport, Munniswami, came to Pune and contacted Ravindra. Appellant No. 1 was again called but, he repeated the same story. As the information regarding replacement of truck was found to be false, no one believed appellant No. 1. It was thus, decided to make further enquiries by going to Barshi and Latur where the truck had allegedly developed technical fault. During this period, while PW 10 was returning to his house, appellant No. 1 confessed to the murder of Chand Pasha and disclosed that the goods are stored at his house. PW 10, therefore, kept the appellant No. 1 at his house under strict surveillance and on the next morning, handed him over to the Bhosari Police. He then, conveyed this information to PW 3 and others at Pune.
6. Head Constable Choudhary arrested appellant No. 1 under Section 41 of the Criminal Procedure Code (in short 'Cr.P.C') and conducted enquiries. Appellant No. 1 disclosed that he committed murder of Chand Pasha with the help of Haridas Kale and Hanumanta Kale of Dhanegaon on 13-1-1997 between 11.00 and 11.30 p.m. while crossing Mohari Ghat and has disposed of his body. The bags of groundnuts were kept at the house of relative of Haridas at Pali for being disposed of later. As the commission of offence was disclosed and the offence had been committed within the jurisdiction of Jamkhed Police Station, Head Constable Choudhary handed over all relevant papers with report (Exh. 45) to Jamkhed Police on 4-2-1997 and informed them that appellant No. 1 is in magisterial custody. On the basis of this information, PW 14 who was conducting enquiry into the accidental death registered earlier, lodged report against appellant No. 1. Haridas Kale and Hanumanta Kale, on behalf of the State (Exh. 14). On the basis of this report, offence was registered as Crime No. 16/1997 on 5-2-1997 and the investigation was taken over by PSI Budiwant (FW 15).
7. The Investigating Officer obtained custody of appellant No. 1 from the Court of Judicial Magistrate, First Class, Pimpri and arrested him on 5-2-1997. Hanumant and Haridas also came to be arrested on that day. During the course of investigation, it was found that Hanumant and Haridas are not concerned with the commission of the offence, thus, both of them came to be released under Section 169 Cr.P.C. On 7-2-1997 appellant No. 1 made a confessional statement (Exh. 20) and volunteered to point out the scene of occurrence. He took the Investigating Officer, Panch Hemant Dhaitadak (PW 4) and others up to the cement pipe under the Wagh-Hira Bridge. Some stones came to be attached from this place under the Panchnama (Exh. 21). After pointing out the spot, appellant No. 1 made confessional statement (Exh. 18) and produced 39 groundnut bags worth Rs. 674. 896/(sic) from the house of PW 7. The bags were attached under Seizure Memo (Exh. 19). After that appellant No. 1 made another confessional statement and produced remaining 107 groundnut bags worth Rs. 1,78.048/-. from the house of PW 5.
8. On 9-2-1997, seat cover and tomy were attached under Seizure Memo (Exh. 34). On 10-2-1997 appellant No.2 came to be arrested. Appellant No.2 made a confessional statement (Exh. 39) and produced suitcase containing clothes of deceased buried in his field at Dhanegaon. On 13-7-1997, appellant No. 1 again made a confessional statement (Exh. 38). He produced bloodstained Shirt, bluish pant, torn sweater and a muffler concealed in the pipe under the Bridge produced by appellant No. 1 were attached under Seizure Memo (Exh. 37). On 14-2-1997 the Investigating Officer traced Cleaner of the truck Sahebrao (PW 8). On 19-2-1997 Tahsildar in the presence of Hiraman Sonwane (PW 9), another panch, exhumed the body. Broken skull and some other bones found were attached under Seizure Memo (Exh. 31). These bones were sent to Anatomy Department of B. J. Medical College. Dr. (Mrs.) N.S. Khot associate Professor of the Anatomy Department, issued certificate (Exh. 31) in the month of April 11, 1997 certifying that the skull, mandible and left scapula were broken. She further certified that the bones belong to male, aged about 40 years and that there were no signs of antemortem injuries on the bones. Other articles were sent to Chemical Analyser. Report of Chemical Analyzer (Exh. 50) disclosed that nicker stained with blood appeared to be decomposed. Shirt (article No. 5) had one bloodstain and upholstery of the truck had considerable number of bloodstains at various places.
9. On the basis of the evidence collected during the investigation, appellants came to be charge-sheeted. As seen from the examination of the appellants recorded under Section 313 of the Cr.P.C. the appellants adopted the defence of total denial. The trial Court found that the evidence of prosecution witnesses is worthy of credence. Evidence of PW 2, PW 3, PW 8, and PW 13 established that appellants in furtherance of their common intention, committed murder of Chand Pasha in Mohri Ghat and caused disappearance of the evidence by concealing his body and clothes at different places. Learned Trial Judge further found that the appellant No. 1 committed breach of trust in respect of consignment of groundnuts entrusted to him by PW 3 in his capacity as a carrier. In conformity with these findings, learned Trial Judge convicted both the appellants for offence punishable under Sections 302 and 201 read with Section 34 of the IPC. He further convicted appellant No. 1 for offence punishable under Section 407 of the IPC and sentenced them as stated earlier.
10. Shri H.I. Pathan, learned Counsel holding for Sri S.B. Talekar, for appellants, contended that PW 8 is a got up witness. There is no documentary evidence on record to show that he was Cleaner on the truck belonging to PW 10. Assuming that PW 8 was, in fact, Cleaner on the said truck, in view of the improvements made by him in his evidence and his conduct in not disclosing the incident to any one for a period of 14 days, no reliance whatsoever should have been placed on the evidence of this solitary and a chance witness. Learned trial Judge committed an error in convicting appellants on the basis of his uncorroborated evidence. In support of this contention, learned Counsel placed reliance on the ruling of the Supreme Court reported in : 2004CriLJ2874 in the matter of Shankarlal v. State of Rajasthan. According to learned Counsel for the appellants, if the evidence of PW 8 is discarded, remaining evidence does not establish complicity of the appellant in the commission of offence. The appellants, therefore, deserve to be acquitted.
11. Shri K.M. Suryawanshi, learned APP however, contends that conduct of PW 8 who is a boy of 18 years, is quite natural. In his first attempt to earn his livelihood, PW 8 suffered a serious trauma. In this background, it was natural for him to run away from the appellants for saving his life and to keep hits mouth shut. According to learned APP delay of 14 days in recording his statement is explained by the fact that the Investigating Officer was sent on false trial by appellant No. 1 who named Hanumant and Haridas as his accomplices. Apart from this, detection of the dead body of deceased under Wagh-Hira Bridge, discovery of his clothes and the goods from the places mentioned by PW 8 substantiate his evidence. Learned APP argues that the evidence on record establish complicity of both the appellants in the commission of offence beyond reasonable doubt.
12. Contention of learned Counsel for the appellants that PW 8 is a chance witness is clearly misconceived, though he can be termed as a solitary witness. The law of evidence does not require any particular number of witnesses to be examined for proving a relevant fact. However, in cases where the decision rests on the evidence of single witness, the Court has to be circumspect and analyze the evidence of such witness with due care and caution. If the evidence of the witness inspires confidence and receives corroboration from the attending circumstances, there can be no impediment in convicting the accused on the basis of his evidence. In the present case, no contradictions in the evidence of PW 8 are brought on record during his cross-examination. Learned Counsel for appellants has referred only to the improvements made by the witness over his police statement by stating some of the facts for the first time in his deposition before the Court. According to learned Counsel, the fact that witness has made several improvement, discredits his evidence. The evidence of witness cannot be discarded on this count if the facts stated for the first time before the Court are in the nature of elaboration and do not amount to contradiction. The Apex Court has clarified this aspect in the matter of Esher Singh v. State of A.P. reported in : (2004)11SCC585 . Considering this aspect, their Lordships observed in para No. 23 of the report:
23. ...Though it is true as contended by learned Counsel for the accused appellant Esher Singh that some statements were made for the first time in Court and not during investigation, it has to be seen as to what extent they diluted the testimony of Balbeer Singh and Dayal Singh (PWs 16 and 32) used to bring home the accusations. A mere elaboration cannot be termed as discrepancy. When the basic features are stated, unless the elaboration is of such nature that it creates a different contour or colour of the evidence, the same cannot be said to have totally changed the complexion of the case....
If the evidence of witness does not militate against his earlier version and is merely an elaboration of the same narration such evidence of the witness cannot be discarded on the ground that some of the statements are made by him for the first time in the Court. The Court, however, must be cautious and careful in appreciating the evidence of solitary witness.
13. Learned Counsel for appellants has placed reliance on the ruling of the Apex Court in the matter of Shankarlal v. State of Rajasthan (supra), in support of his contention that no reliance should be placed on the evidence of solitary and chance witness whose presence has not been properly established. The authority does not support the arguments advanced. In that case, the evidence of the solitary witness was full of infirmities. There was a delay in lodging the report which created a doubt about the genuineness of the prosecution case. In these circumstances, in the absence of independent corroboration, evidence of solitary chance witness was disbelieved and the conviction was set aside. There can be no dispute about the dictum. However, the authority does not apply to the facts and circumstances of the present case. In the present case, version of the incident narrated by PW 8 is corroborated in all material particulars. The story unfolded by him shows that after he accepted the employment at Ahmednagar, the journey commenced from Karmala where onions were loaded for delivery to Shivam Transport, Bangalore. At Bangalore, they were asked by the transporter that consignment of groundnuts for Nanded Is available at Gudibanda. This offer was accepted and 152 bags of groundnuts worth Rs. 2,50,000/-were loaded at Shahnawaz Industries, Gudibanda for making delivery to M/s. Kasatwar Seeds & Fertilizers, Nanded. At Gudibanda, deceased joined them as the representative of the consignor. This evidence of PW8 in respect of the initial phase is fully corroborated by the evidence of PW 10, PW 13 and PW 3, After coming to Poona from Ulhasnagar, PW 10 sent appellant No. 1 to Suyog Apartment, Ahmednagar, who promised to provide load of onions for delivery at Bangalore. PW 3 hired the vehicle. through Shivam Transport for delivery of the consignment of groundnuts to Kasatwar Seeds & Fertilizers, Nanded. PW 13 who loaded the goods has identified appellant No. 1 in the Court.
14. The second and crucial phase of the incident narrated by PW 8 also receives sample corroboration. The onwards journey from Gudibanda to Kharda was uneventful. At Kharda, one of the tyre punctured and the vehicle stopped for vulcanizing the tube. Subsequent developments would show that the seeds of what was to follow were sown at Kharda. Instead of waiting at Kharda appellant No. 1 decided to take a detour and visit his native place Dhanegaon which was nearby. While returning from Dhanegaon, appellant No. 1 took appellant No. 2 with them. During the onward journey when the vehicle was negotiating Mohari Ghat, appellant No. 2 who was sitting by the side of deceased throttled him. Appellant No. 1 stopped the vehicle and completed the task by hitting the deceased on the head with iron tomy. He dealt second blow on the face to disfigure it before tucking the dead body in the cement pipe under Wagh-Hira bridge. After negotiating some distance PW 8 was compelled to dispose of the garments of deceased by putting them in the pipe under a small bridge near Patoda. Evidence of PW 8 that the face was disfigured after the death is corroborated by the medical evidence of Dr. (Mrs.) N.S. Knot from the Anatomy Department of B.J. Medical College, Pune. In her certificate (Exh. 31), the Associate professor has mentioned that skull, mandible and left scapula were fractured and that she could not get any evidence of antemortem injury on examination of these bones. The age estimated by approximation from the development of bones can never be accurate. Thus, estimation of age to be 40 years does not adversely affect the prosecution case as the corpus delicti is proved by other cogent evidence.
15. Evidence of PW 8 that the deceased joined them at Gudibanda and loading of 152 bags of groundnut for delivery at Nanded is substantiated by PW 13 and PW 3. PW 13 supervised the loading and prepared documents in respect, of the consignment. PW 3 has referred to the xerox copies of the documents shown to him during the course of the recording, of his evidence. Undlsputedly, PW 3 received 146 bags of the groundnuts out of the consignment of 152 bags from the Court on the strength of credit bills and way bills, his ownership has not been disputed till now. Thus, the evidence of discovery of goods lend further assurance to the evidence of PW 8.
16. On 7-1-1997, appellant No. 1 made a disclosure statement (Exh. 18) and produced 39 groundnut bags worth Rs. 64,896/-, from the house of PW 7. He, then, made another confessional statement (Exh. 22) and produced 107 groundnut bags worth Rs. 1,78,048/- from the house of PW 5. Referring to the admission of PW 4 during his cross-examination that appellant No. 1 had not opened his mouth in his presence, it is contended that no reliance can be placed on the evidence of discovery. While considering this contention, it must be borne in mind that Section 26 of the Evidence Act bars admissibility of confessional statement made in presence of the police. However, Section 27 is in the nature of an exception to the general rule. The provision makes that portion of the confessional statement admissible in evidence which distinctly leads to the discovery of a relevant fact. Section 27 does not require presence of an independent person at the time of recording the confession. The Court seek independent corroboration to the evidence of the police Officer as a precaution and not as a rule of law. This concept is made clear by the Apex Court in the matter of Praveen Kumar v. State of Karnataka : (2003)12SCC199 . Interpreting Section 27 of the Evidence Act, their Lordships observed in para 21 of the Report:
21. Section 27 does not lay down the Statement made to a police officer should always be in the presence of independent witnesses. Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the Courts seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the Court to seek corroboration from an independent source, in such cases, while assessing the evidence of the police. But in cases where the Court is satisfied that, the evidence of the police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without Independent corroboration....
17. Nothing has been brought on record during the cross-examination of the Investigating Officer PW 15 to disbelieve his testimony in respect of recovery of groundnut bags. On the contrary, his evidence regarding recovery of the groundnut bags has received independent corroboration from the evidence of PW 5 from whose house 107 groundnut bags were recovered and PW 7 from whose shop 39 groundnut bags were attached. The evidence of PW 5 and PW 7 further established that appellant No. 1 was the Driver of the truck and had entrusted the goods to PW 5 and PW 7.
18. In addition to these circumstances, the fact that appellant No. 1 made false statements to PW 2, PW 3 and PW 10 provides an additional circumstance which further substantiates the prosecution case. PW 2, PW 3, and PW 10 have consistently deposed that appellant No. 1 informed them that his truck had broken-down near Barshi and the deceased had transferred the goods to another truck bearing Registration No. AP 76266. PW 3 made enquiries with RTO at Hyderabad, Vijayawada and Guntur, only to discover that no such truck was registered at these places. The conduct of the accused in making a false statement provides an additional link to complete the chain of circumstances.
19. On careful examination of the entire evidence, in our considered opinion, the contention of learned Counsel for appellants that no reliance can be placed on the evidence of PW8 is without substance. His evidence as well as evidence of other prosecution witnesses could not be impeached, in spite of the searching cross-examination. Considering the totality of the circumstances, in our considered opinion, no fault can be found with the finding of the Trial Judge that the appellants committed murder of Chand Pasha in furtherance of t heir common intention while they were negotiating Mohri Ghat on the night on 12-2-1997 and caused disappearance of the evidence of the crime by disfiguring the corpse and concealing the body in the cement pipe under Wagh-Hira Bridge and that appellant No. 1 committed breach of trust in respect of the goods entrusted to him in his capacity as a Carrier. 20. For the reasons stated above, we are in the agreement with the findings recorded by the Trial Court and confirm the order of conviction and sentence passed by the trial Court. As there la no merit in the appeal, we dismiss the appeal. The appellants shall surrender to bail before the trial Court on or before 20th September, 2006 for undergoing unserved sentence.