Cr.Appeal No.548/2009 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.548 OF 2009 Macchindra Keshav Nagtile, Age 45 years, Occ. Agriculture, R/o Kangara, Taluka and District Osmanabad. ..Appellant Versus The State of Maharashtra Through Police Inspector Police Station, Bembli, District Osmanabad. ..Respondent ... Shri A.B.Gaikwad, Advocate (amicus curiae) for the appellant and Shri K.G.Patil, Additional Public Prosecutor for the respondent ... CORAM : P.V.HARDAS & A.V.POTDAR, JJ. Dated : February 9, 2011 ORAL JUDGMENT : (Per HARDAS, J.) :- 1. The appellant/accused, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and in respect of conviction for an offence under Section 498A of the Indian Penal Code, stands sentenced to undergo rigorous imprisonment for a period of three years, by the learned Sessions Judge, Osmanabad, by judgment dated 4.7.2009 in Sessions Case No. 9 of 2009, by this appeal, questions the correctness of his conviction and sentence. Cr.Appeal No.548/2009 2 2. Such of the facts as are necessary for the decision of this appeal, may briefly be stated thus; PW 15 API Gaikwad, who was attached to the Bembli Police Station, received an anonymous message that the appellant/accused Macchindra had caused severe injuries to his wife Avidhabai, who has been shifted to Civil Hospital, Osmanabad. On receiving the aforesaid information, PW 15 API Gaikwad rushed to village Kangara and visited the scene of offence. He enquired about the incident and thereafter brought PW 2 Vishal son of deceased Avidhabai and of the appellant, to the Police Station and recorded his complaint at Exhibit 15. On the basis of the said complaint at Exhibit 15, offence vide Crime No.29 of 2008 was registered under Section 302 of the Indian Penal Code. The first information report is at Exhibit 16. Investigation of the said crime was entrusted to PW 15 API Gaikwad. He, thereafter, again visited the scene of the offence and drew the scene of offence panchanama in the presence of panchas at Exhibit 26. From the scene of offence, he seized blood stained mud, and controlled mud, a plastic tin and an empty bottle. The property seized are articles 1 to 4. He, thereafter, recorded the statements of the witnesses. On the next day i.e. on 16.5.2008, a knife came to be seized from PW 2 Vishal vide seizure memo at Exhibit 17. Said knife is Article No.5. The clothes of deceased Avidhabai came to be seized under seizure memo at Exhibit 32. The accused presented himself in the Police Station on 18.5.2008 and accordingly came to be arrested vide arrest panchanama Cr.Appeal No.548/2009 3 at Exhibit 48. The clothes on the person of the accused came to be seized vide seizure memo at Exhibit 33. The aforesaid clothes are Articles 9 and 10. On 20.5.2008, the seized property came to be referred to the Chemical Analyser, Aurangabad vide request letter Exhibit 42. Statements of other witnesses came to be recorded and on completion of the investigation, a charge sheet against the accused came to be filed. 3. On committal of the case to the Court of Sessions, the trial Court, vide Exhibit 6 framed charge against the appellant for the offence punishable under Sections 498-A and 302 of the Indian Penal Code. The appellant denied the guilty and claimed to be tried. The prosecution in support of its case, examined 16 witnesses. Pivot of the prosecution case is the evidence of PW 2 Vishal. 4. Before we advert to the submissions advanced before us by Shri Gaikwad, learned counsel for the appellant and Shri K.G.Patil, learned APP, it would be appropriate that we refer to the evidence of PW 2 Vishal. PW 2 Vishal states that deceased Avidhabai was his mother while the appellant is his father. He states that prior to his birth, his parents were residing at Kolhapur. He further states that about one month prior to the incident, his mother, brother and sisters had come to Kangara from Kolhapur while his father stayed back at Kolhapur. He further states Cr.Appeal No.548/2009 4 that the appellant used to assault deceased Avidhabai after consuming liquor. He used to taunt her on seeing any motorcycle passing from his house that her paramour had come. He further states that on one occasion his mother, being fed up of the ill-treatment, had attempted to commit a suicide by pouring kerosene on her person and setting herself ablaze. She was, however, miraculously returned to home thereafter. The appellant continued with the same treatment and thereafter, his mother, brother and sisters shifted to village Kangara. In respect of the incident, he states that on 15.5.2008 at about 7.30 am, he had gone to answer the call of the nature in an open space abutting village Kangara. He noticed his mother coming there also to attend the nature's call. She squatted behind the embankment in order to attend the nature's call. Suddenly, the appellant came from the sugarcane crop from the adjoining field and started stabbing his mother Avidhabai. He stabbed on her back, abdomen and chest. PW 2 Vishal then raised cries for help. His father then consumed the remaining liquor in the bottle, threw it and fled away from the scene. He states that on hearing his cries, his sister Amrapali came to the scene of offence and the appellant also tried to assault Amrapali by throwing lumps of soil from the agricultural field. Injured Avidhabai was thereafter shifted to the hospital, where she subsequently succumbed to the injuries. PW 2 Vishal states that he carried the knife and after arrival of the police, he lodged his report and produced the knife. In the cross examination, he has admitted that when he had Cr.Appeal No.548/2009 5 lodged the report, Raju and Biru, the brothers of his mother Avidhabai were present. He has denied the suggestion that at their tutoring he has lodged the report against the appellant. He has admitted that he had seen his statement before his evidence came to be recorded. 5. The prosecution has also examined PW 3 Mathurabai, who did not support the prosecution case and claims that she had only seen the accused and thereafter accused fleeing towards village Takali. In the cross examination, she has admitted that she has not seen the accused throwing lumps of mud towards Amrapali and fleeing thereafter. 6. PW 4 Sandipan also has not well stated in his evidence. He speaks about the ill-treatment and states that that he has learnt that his sister had been admitted in the hospital and had gone to the hospital. He admitted that he had not lodged any report. 7. PW 5 Amrapali did not support the prosecution. In her examination-in-chief, she has stated that she had learnt that her mother was lying in the field and therefore, along with her brother Vishal, she had gone to the scene of offence. Nothing worthwhile has emerged in the cross-examination of this witness by the learned APP. In the cross- examination on behalf of the accused, she has admitted that the villagers had told her and her brother Vishal that someone has killed Avidhabai. Cr.Appeal No.548/2009 6 8. PW 6 Keshav, father of the accused, also did not support the prosecution and was declared hostile and cross-examined. In cross examination on behalf of the accused, he has admitted that some boys had told him that deceased Avidhabai was lying at the scene. 9. PW 7 Usha, a neighbour, states that she has advised Macchindra (appellant) to behave properly with his wife deceased Avidhabai. She has denied the suggestion that the appellant was addicted to liquor. 10. PW 10 Shantabai claims that upon hearing the cries she had been to the house of Avidhabai and had noticed the children of Avidhabai weeping. She had seen Avidhabai lying injured in the field and had also seen the appellant going towards village Takali. 11. From the perusal of the evidence of prosecution witnesses, it transpires that the accused has not disputed that the deceased had died homicidal death. In fact, the appellant/accused had admitted the post mortem report, which is at Exhibit 12. 12. Shri Gaikwad, learned Counsel (amicus curiae) for the appellant, has very ably argued the case on behalf of the appellant and has urged before us that the evidence of PW 2 Vishal is that of a solitary witness and it would be highly unconceivable to accept his evidence Cr.Appeal No.548/2009 7 without there being substantial corroboration from the independent witnesses. It is also urged before us, by learned counsel Shri Gaikwad, that the conduct of PW 2 Vishal clearly meditates against his claim being an eye witness to the incident. It is further urged before us that the circumstantial evidence also does not assist the prosecution. The learned APP has supported the judgment of the trial Court and has urged for dismissal of the appeal. 13. A reference may, at this juncture, be usefully made to the judgment of the Supreme Court in the case of Badri Vs. State of Rajasthan [AIR 1976 SC 560]. The Supreme Court has held in paragraph No.18 that if a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony. The Supreme Court, further, in the case of Shivaji Sahebrao Bobade Vs. State of Maharashtra [AIR 1973 SC 2622], has held, in paragraph No.19 as follows :- " Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given on sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." Cr.Appeal No.548/2009 8 14. We have minutely scrutinized the evidence of PW 2 Vishal. We find that the conduct of PW 2 Vishal certainly does not inspire confidence for placing implicit reliance on his testimony as being an eye witness. PW 2 Vishal rushed the home and carried the knife with him but did not bother to inform the police or go to the Police Station for lodging the complaint. If he had really witnessed the incident, we fail to understand as to why he carried the knife with him and left his injured mother at the scene of offence and yet not informed the police about the incident. PW 15 API Gaikwad was required to interrogate the villagers in order to find out if any one had witnessed the incident. Subsequently, PW 2 Vishal was taken to the Police Station where his first information Exhibit 15 came to be recorded. We, therefore, find that no reliance, whatsoever, much less implicit, can be placed on the testimony of PW 2 Vishal. Assuming that PW2 Vishal is not a wholly unreliable witness, but is a witness whose evidence can be accepted if corroborated by other independent sources. Yet, there is no corroborative evidence to the evidence of PW 2 Vishal. Even his sister PW 5 Amrapali does not support him and in fact claims that she accompanied by PW 2 Vishal had gone to the scene of offence after she had learnt that her mother was lying in the field. 15. The report of the Chemical Analyser in respect of the examination of the clothes of the accused also did not reveal any blood stains. Cr.Appeal No.548/2009 9 16. Thus, we find that there is no evidence worth the name, which would either corroborate the evidence of PW 2 Vishal or independently, in any manner, establish a supportive link for sustaining the conviction of the appellant. In such circumstances, therefore, according to us, the appellant is entitled to be given the benefit of doubt. 17. So far the evidence relating to the offence punishable under Section 498-A of the Indian Penal Code is concerned, the evidence of the witnesses that the appellant used to harass and ill-treat the deceased has gone virtually unchallenged. In the light of that, therefore, according to us, the offence punishable under Section 498-A of the Indian Penal Code has been proved against the appellant. 18. Since 18.5.2008, the appellant has remained behind the bars. The appellant has virtually served out the sentence awarded to him for an offence punishable under Section 498-A of the Indian Penal Code. Thus, the appellant, out of three years of sentence, has undergone about two years and eight months. We, are therefore, inclined to partly allow this appeal and quash and set aside the conviction and sentence of the appellant for the offence under Section 302 of the Indian Penal Code and further to direct the release of the appellant for an offence punishable under Section 498-A of the Indian Penal Code on the sentence of imprisonment of two years and eight months so far undergone by him. Cr.Appeal No.548/2009 10 19. Accordingly, this Criminal Appeal is partly allowed. The conviction and sentence of the appellant for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. The conviction of the appellant for the offence punishable under Section 498 of the Indian Penal Code is confirmed but the sentence is modified to the period of imprisonment of two years and eight months, already undergone by the appellant. In the light of the above findings, the appellant, who is in jail, be released forthwith, if not required in any other case. The appeal thus stands partly allowed. We quantify the fees payable to Shri A.B.Gaikwad, learned Counsel (amicus curiae), on his very ably arguing the appeal on behalf of the appellant, at Rs.5,000/- (Rs. Five Thousand only/-). (A.V.POTDAR,J.) (P.V.HARDAS, J.) ... akl