Parasharam Vishnu Siddha and anr. Vs. State of Maharashtra - Court Judgment

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criminal - testimony of witness - section 134 of evidence act, 1872 - no impediment in law recording or sustaining conviction on testimony of solitary eye-witness - section 134 provides that no particular number of witness is required for proof of any fact - solitary witness must be implicitly reliable before it can be made sole basis for conviction - court finds it difficult to rely on circumstantial evidences adduced by informant and prosecution - held, appellants liable to be acquitted on ground of benefit of doubt. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - from her cross examination, it is crystal clear that there is no love lost between her and the appellants. such incised wound could not be caused due to beating by iron rods like articles nos. in our view, the circumstance that the deceased sustained the said incised wound clearly belies' the claim of bhagubai of having seen the incident. fourthly, there are certain omissions which render it unsafe to accept her evidence. 10. it is true that there is no impediment in law in recording/sustaining a conviction on the testimony of a solitary eye -witness because, section 134 of the indian evidence act provides that 'no particular number of witnesses shall in any case be required for the proof of any fact'.but, the time -honoured rule is that the evidence of a solitary witness must be implicitly reliable before it can be the sole basis for conviction. consequently, we feel that it would not be safe to sustain the conviction of the appellants on her testimony. at any rate, the aforesaid circumstance would only create at the highest, a strong suspicion against the appellants and since we have rejected the ocular account furnished by bhagubai and there is no other evidence connecting the appellants with the crime, the appellants cannot be convicted on a strong suspicion simplicitor because, as gajendragadkar, j. state of punjab, 1957crilj1014 observed 'suspicions' however strong cannot take the place of proof'.12. in the result, this appeal is allowed.vishnu sahai, j.1. through this appeal, the appellants challenge the judgment and order dated 29-1-1997 passed by the iiird additional sessions judge, kolhapur in sessions case no. 100 of 1996 whereby they have been convicted and sentenced to undergo imprisonment for life and to pay a fine of rs. 1000/- each, in default to undergo three months r.i. for the offence punishable under section 302 r/w 34 i.p.c.it is pertinent to mention that along with the appellants was tried co-accused sou. akkatai parasharam siddha but, she has been acquitted vide the impugned judgment and the state of maharashtra has not challenged her acquittal by preferring an appeal under section 378(1) cri.p.c.2. in short, the prosecution case runs as under :---the informant bhagubai siddha p.w. 1 is the mother of the appellant parasharam siddha and grand mother of the appellant bhikaji siddha. she is the mother-in-law of the acquitted accused sou. akkatai siddha. the deceased dhanaji bandoba burungale was her son-in-law. from 20 years, prior to the incident, the informant bhagubai was residing with her daughter and son in law dhanaji in pune because, the appellants were not permitting her to reside in her house at jyotiba dongar which she had inherited from her father. at the time of the incident, the appellants and akkatai were residing jointly at jyotiba dongar. they did not allow the informant to stay in the house and did not provide anything for her sustainance. consequently, she executed a registered sale deed in respect of the said house and open space which was behind it in favour of dhanaji, about five to six months before the incident.sometimes in may 1995 dhanaji told the informant that he would make construction on the open space which was behind the house. consequently, the informant and dhanaji came to jyotiba dongar on 15-5-95. the same day dhanaji went back to pune to bring some money while she stayed back at the house. dhanaji returned next morning (morning of 16-5-1995) at 9 a.m. with the cash. he thereafter, went in the open space. thereafter, the appellants came and removed the wooden planks and the iron rods from the door of the house. thereafter, along with the said iron rods, they went towards the open space. at that juncture, the appellant bhikaji told the informant that either side would be murdered. then, the appellants started assaulting dhanaji with iron rods. in the meantime, the informant came out in the open space and started crying loudly. at that time the acquitted accused akkatai also came there caught hold of her and pushed her down resulting in her falling down. the informant saw the appellants assaulting dhanaji with iron rods on head, legs, shoulders etc. co accused akkatai gagged her mouth in order to thwart her bid to cry.it is alleged that apart from the informant, this incident was seen by her neighbours shankar katkar p.w. 6, sou kisabai katkar p.w. 7 and sonabai chatre p.w. 8.after assaulting dhanaji, the appellants and akkatai are said to have left. thereafter, the informant went near dhanaji and saw him precariously injured. persons who had assembled there brought a gunny bag and on the same dhanaji was taken to the informant's house. police patil balkrishan bitake p.w. 10 was informed. he immediately came to the house of the informant and the latter narrated to him the incident. he immediately arranged for a motor vehicle and on the same, he and the informant along with dhanaji proceeded to cpr hospital. on way, the police patil informed kodoli police station that the appellants had assaulted dhanaji. on reaching cpr hospital, the doctor pronounced that he was dead.3. the evidence of phc maruti shevale p.w. 18 shows that on 16-5-1995 he was deputed on duty at cpr police chowky from 8 a.m. to 11 p.m. and at about 11.50 a.m. the medical officer of cpr hospital, kolhapur informed in writing about the corpse of dhanaji being brought to the hospital. consequently, same day, he recorded the fir of bhagubai siddha p.w. 1 (evidence of bhagubai shows that the fir was recorded at 2 p.m.)the evidence of asi maruti koli p.w. 12 shows that at 7.15 p.m. same day he received the fir of bhagubai and registered on its basis c.r. no. 29 of 1995 under section 302 r/w 34 ipc.4. the autopsy on the corpse of the deceased dhanaji was conducted on 16-5-1995, between 1.15 to 1.30 p.m., by dr. janardhan bansode p.w. 15 who found on it the following ante-mortem injuries:-'1. clw 3' x 1' x 1' size, left forehead bone deep fracture of skull.2. clw having the size of 2 x ' on left parietal region. fracture to skull oblique.3. clw 1' x ' x ' right lower 3rd hand with fracture radius ulna.4. fracture humorous shaft right side.5. clw 4' x 3' x 1' fracture radius ulna, middle third left side.6. incised wound 2' x ' with fracture tibia fibula right upper 1/3rd.7. fracture ribs over 4th, 5th and 6th haemothorax left side.'on internal examination, dr. bansode found fractures of left frontal bone and left parietal bone. he also found fracture of 4th, 5th and 6th ribs on the left side haemothorax and laceration of middle lobe of left lung. in the opinion of dr. bansode, dhanaji died on account of shock, due to crania cerebral injury with left haemothorax and the said injures were attributable to iron rods shown to him (article nos. 9 and 10) and were sufficient in the ordinary course of nature to cause death.5. the investigation was conducted in the usual manner. the bulk of it was performed by psi rajaram patil p.w. 20. on 30-5-1995, he arrested the appellants and seized the blood stained clothes which they were putting on their person in the presence of public panch balasaheb khamkar p.w. 11.from the person of the appellant parasharam sidda, a blood stained dhoti, blood stained cotton shirt and blood stained tricot cotton cap were seized. from the person of the appellant bhikaji, a full pant which was blood stained and tricot open shirt which was also blood stained were seized. after completing the investigation, psi patil submitted the charge sheet against the appellants and the acquitted accused akkatai siddha on 25-8-1995.6. the case was committed to the court of sessions in the usual manner where the appellants and the acquitted accused were charged for the offence punishable under section 320 r/w 34 i.p.c. to which charge, they pleaded not guilty and claimed to be tried.during trial, in all the prosecution examined 20 witnesses. four of them namely bhagubai siddha p.w. 1, shankar katkar p.w. 6, sou kisabai katkar p.w. 7 and sou sonabai chatre p.w. 8 were examined as eye witnesses. it is pertinent to mention that the last three witnesses turned hostile and when confronted during cross-examination with those portions of their statement under section 161 cri.p.c. wherein they had given ocular account, disowned having made them.in addition to the ocular account, the prosecution through psi rajaram patil p.w. 20 and public panch balasaheb khamkar p.w. 11 proved that blood stained clothes were recovered from the appellants.the learned judge felt that there was sufficient evidence against the appellants and consequently convicted and sentenced them in the manner stated in para 1 above, but, however acquitted co-accused akkatai. hence, this appeal.7. we have heard mr. b.r. patil, learned additional public prosecutor for the respondent and gone through the entire evidence and the impugned judgment. no one appeared for the appellants because, mr. a.y. sakhare, their learned counsel was elevated to the bench and thereafter notice was sent to them to engage another counsel but, they did not engage any.after considering the entire material on record, we are of the judgment that this appeal deserves to be allowed. the conviction of the appellants is primarily based on the ocular account furnished by the informant bhagubai siddha p.w. 1. in addition, the prosecution has furnished circumstantial evidence in the form of recovery of the blood stained clothes from the person of the appellants on their arrest on 30-5-1995.we now, propose examining the said evidence. 8. we begin with the ocular account furnished by bhagubai siddha p.w. 1. as mentioned in para 2, she is the mother of the appellant parasharam siddha and grand mother of the appellant bhikaji siddha. her evidence shows that the said appellants along with sou. akkatai (wife of the appellant parasharam siddha) stayed at jyotiba dongar in the house which she had inherited from her father and she stayed with her son-in-law dhanaji and her daughter at pune. her evidence also shows that the appellants did not provide anything for her sustainance. she deposed that about five to six months prior to the incident, she had executed a registered sale deed of the said house and the open space behind it in favour of dhanaji and in the month of may, 1995, dhanaji told her that he wanted to make some constructions in the said open space. consequently, she along with him came to jyotiba dongar on 15-5-95. dhanaji left for pune to get some cash but she stayed at her house. next morning (morning of 16-5-1995) at about 9 a.m. he came back with cash and went in the open space behind the house. at that juncture, the appellants removed the wooden planks of the door of the house and the iron rods from the door. thereafter, with the said iron rods, they went in the open space behind the house and started belabouring dhanaji with them. when she came in the open space, co-accused akkatai also came; caught hold of her; pushed her on the ground and gagged her mouth to thwart her bid to raise cries. she saw the appellants with iron rods assaulting dhanaji on head, legs, shoulders etc. and thereafter went away.9. we have examined the said version of bhagubai and we are constrained to observe that we find it hazardous to accept her evidence. we say this inspite of our first reaction that being the mother of the appellant parsharam and grand mother of the appellant bhikaji, it was normally not expected that she would have falsely implicated the said appellants. but, to every rule there is an exception and we dare say here is a case wherein it appears that a mother has falsely implicated her son and grand son. from her cross examination, it is crystal clear that there is no love lost between her and the appellants. we say this because, in her cross examination, she stated that during the period of last 20 years, the appellant parasharam, had only once visited her. we also say this because she stated that the appellants were not providing anything to her for her maintenance. in our view, it was this which weighed with her to live with her daughter and son in law, something which a hindu woman would do as a last resort. in our view, since the appellants were not providing anything for her maintenance, she must have been sore with them.since there is no getting away from the fact that relations between her and the appellants were strained, her evidence has to be approached with caution and we dare say that if this is done, it cannot be accepted for the reasons enumerated hereinafter. firstly, she candidly and categorically stated that the two appellants assaulted the deceased with iron rods. we have earlier referred to the ante-mortem injuries suffered by the deceased and seen that injury no. 6 sustained by the deceased was a incised wound 2' x ' with fracture of tibia and fibula of right upper third. it is pertinent to mention that although the autopsy surgeon dr. bansode p.w. 15 in his examination-in-chief stated that all the ante-mortem injuries suffered by the deceased could be caused by iron rods but, in his cross-examination, he categorically stated that it is true that injury no. 6 in column no. 17 of the post mortem notes is an incised wound. such incised wound could not be caused due to beating by iron rods like articles nos. 9 and 10.'we agree with this opinion of dr. bansode. in our view, the circumstance that the deceased sustained the said incised wound clearly belies' the claim of bhagubai of having seen the incident. her evidence, does not explain how the deceased sustained it.secondly, bhagubai in her cross-examination (in para 19) stated that on account of being pushed by the acquitted accused - akkatai, she had sustained injuries from which blood was coming out and which resulted in stains of blood on her clothes. however, in the same para she admitted that she did not show those injuries either to the police or to the doctors in the hospital at kolhapur, and nor were her clothes seized by the police. in our view, had she sustained injuries, she would have got them examined in the hospital. more so, when she had accompanied dhanaji to cpr hospital and was in the hospital. we also feel that had her clothes been stained with blood. phc maruti shevale who recorded her f.i.r. at 2 p.m. in cpr hospital, would have attached her clothes. in our view, absence of her medical examination and absence and seizure of her blood stained clothes grievously erodes her credibility.thirdly, we find that she has no compunction in falsely implicating co-accused akkatai, wife of the appellant-parasharam. it is pertinent to mention that in the f.i.r., she has not named her and has named her for the first time in her statement recorded under section 161 cr.p.c. if she had no compunction in falsely implication her, there is no guarantee that she has not falsely implicated the appellants.fourthly, there are certain omissions which render it unsafe to accept her evidence. according to the prosecution, the appellants assaulted the deceased with iron rods which they had removed from the wooden planks of the door immediately before the incident. but, we find that in the f.i.r. lodged by bhagubai, there is no mention about their removal. when she was confronted with the said omission, she stated that she had informed the police about this fact at the time of lodging of the f.i.r. but, we are not prepared to accept this claim of hers. again in the f.i.r., there is omission about akkatai's name and about akkatai pushing her and gagging her mouth. when she was confronted with the said omission, she gave the answer referred to earlier but, we are not prepared to believe her. in our view, the said omissions are vital and amount to contradictions.fifthly, we are completely at our wit's end that if the incident really happened in the manner as alleged by bhagubai, then why the other eye witnesses of the incident namely shankar katkar p.w. 6, kisabai katkar p.w. 7 and sonabai chatre p.w. 8 who resided in the immediate vicinity did not depose about it and turned hostile. it is also pertinent to mention that bhagubai in her cross examination has admitted that near the place of the incident were shops of different persons. in our view, had the incident taken place at 9 a.m. on 16-5-1995, as alleged by the prosecution, why is it that no shop keepers or someone residing in the vicinity of the place of the incident is coming forth to support bhagubai's version.10. it is true that there is no impediment in law in recording/sustaining a conviction on the testimony of a solitary eye - witness because, section 134 of the indian evidence act provides that 'no particular number of witnesses shall in any case be required for the proof of any fact'. but, the time - honoured rule is that the evidence of a solitary witness must be implicitly reliable before it can be the sole basis for conviction. for the reasons mentioned earlier, in our view, the evidence of bhagubai cannot be classified in that category. consequently, we feel that it would not be safe to sustain the conviction of the appellants on her testimony.11. we also find it difficult to place reliance on the circumstantial evidence adduced by the prosecution. as mentioned earlier, the appellants were arrested on 30-5-1995 and were brought to the police station with blood stained clothes on their person which were seized under a panchanama by the investigating officer rajaram patil p.w. 20 in the presence of public panch balasahab khamkar p.w. 11. this recovery is not in consonance with probabilities.it is pertinent to mention that the incident took place on 16-5-1995 at 9 a.m. and we find it difficult to believe that after a period of 14 days i.e. on 30-5-1995, the appellants were moving putting on blood stained clothes. this act of the appellants can only be reconciled with the hypothesis that they were inviting the police to arrest them. such a inference is incompatible with probabilities.it should be borne in mind that the golden rule in criminal cases is to prefer the probable to the possible. if the said rule is borne in mind the said circumstance cannot be accepted.at any rate, the aforesaid circumstance would only create at the highest, a strong suspicion against the appellants and since we have rejected the ocular account furnished by bhagubai and there is no other evidence connecting the appellants with the crime, the appellants cannot be convicted on a strong suspicion simplicitor because, as gajendragadkar, j., as he then was, in para 9 of the oft - quoted case of sarwan singh rattan singh v. state of punjab, : 1957crilj1014 observed 'suspicions' however strong cannot take the place of proof'.12. in the result, this appeal is allowed. we set aside the conviction and sentence of the appellants for the offence under section 302 r/w 34 i.p.c. and acquit them thereunder. we direct that in case they have paid fine, it shall stand refunded to them.the appellant-parasharam vishnu siddha is in jail and shall be released forthwith unless wanted in some other case. the appellant - bhikaji parasharam siddha is on bail. his bail bonds shall stand cancelled and sureties discharged.