1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.694 OF 2006 Ankush Nagnath Gude ..Appellant Age : 19 yrs, Occu : Agriculturist R/o.Aavar Pimpari, District Usmanabad At present – Khandobachi Vadi, Taluka Palus V/s. The State of Maharashtra ..Respondent Mr.S.Y.Katkade, advocate, for appellant Mrs.M.M.Deshmukh, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 5TH JUNE, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The appellant/accused (Hereinafter referred to as “accused”) was tried by the learned 3rd Additional Sessions Judge, Sangli for the offence punishable under Sections 458, 363, 511, 302 & 307 of the Indian Penal Code. The accused was acquitted of the charge under Section 307 of the Indian Penal Code. The accused was convicted for the offence punishable under Section 458, to undergo R.I for seven years and to pay fine of Rs.500/- I.D to suffer R.I for one month. For the offence punishable under Section 363 read with Section 511 of the Indian Penal Code, the accused is sentenced to suffer R.I for three years and 2 to pay fine of Rs.500/- I.D R.I for one month. For the offence punishable under Section 302 of the Indian Penal Code, the accused is sentenced to suffer life imprisonment and to pay fine of Rs.500/- I.D to suffer R.I for a term of two months. The sentences were directed to run concurrently, by Order dated 17th May, 2007. The appellant/accused has challenged the said order of conviction and sentence. 2. In the night of 22nd May, 2004 after dinner Sambhaji Mali, his wife Laxmibai, Kum.Anuradha and Santosh (P.W.1) were sleeping in front portion of their hut/house by closing the door from inside and keeping lights on. In the morning of 23rd May, 2004 at about 5.00 A.M after hearing the hitting noise they woke up and surprisingly saw the appellant/accused who had entered into the front portion of the house by removing clay tiles of the roof. The appellant/accused was armed with an axe and rope with him. He began to drag Kum.Anuradha (P.W.4) and while in the process the appellant/accused was removing chain of the door, due to yelling her parents Sambhaji and Laxmibai intervened the appellant/accused. The appellant/accused all of sudden, gave the axe blow to Laxmibai and Sambhaji to their respective head which was so dangerous that said Laxmibai and Sambhaji collapsed on the ground. The appellant/accused in the same breath continued his process of dragging Kum.Anuradha (P.W.4) and her cries as to “Wachava Wachava” drew attention of the adjoining neighbourers/agriculturists including P.W.6 Chandrakant Pawar, 3 P.W.9 Ashok Mali, Popat Mali, Mohan Mali and Sarjerao Shinde. The accused ran away by leaving Kum.Anuradha on the spot. The witnesses chessed the accused but they couldnot apprehend him. 3. The injured Sambhaji, his wife Sou.Laxmibai and Kum.Anuradha were sent to the Civil Hospital, Sangli for medical treatment. Sou.Laxmibai died when she was on the medical treatment on the very day i.e.on 23rd May, 2004 at 7.35 A.M while Sambhaji Mali succumbed to the head injuries in the Civil Hospital at Sangli on 24th May, 2004. The First Information Report (F.I.R) of Santosh Mali at Bhilwadi Police Station was recorded vide C.R.No.70/2004, the accused was arrested on 24th May, 2004. The statements of various witnesses were recorded. The incriminating articles were recovered from the house (under Spot Panchanama) and also at the instance of the accused on 26th May, 2004. They were the axe and rope taken charge in presence of panch P.W.3 Madhav Patil (Exh.21/1). The Post Mortem on the dead body was caused. The seized items were sent to the office of C.A. On completion of investigation chargesheet came to be filed before the J.M.F.C who committed the case to the Sessions Court. The accused was in custody. The learned Additional Sessions Judge explained the charge below Exh.2 to the accused. The accused challenged the same by his plea Exh.3. 4. The defence of the accused is of total denial and he says that he has 4 been falsely implicated as he had love affair with Kum.Anuradha and her family members were opposing the same. Kinsmen of father of Kum.Anuradha were not liking affair with Kum.Anuradha. According to the accused, there was a land dispute between Sambhaji Mali and Savita Mali. The murder of Sambhaji and Sou.Laxmibai might have been committed by somebody else and he is falsely implicated. 5. In order to establish the charge the prosecution has examined 11 witnesses namely P.W.1 Santosh Vitthal Mali at Exh.15 having date of birth 19th July, 1994 and at the relevant time he was studying in 6th Std in English Medium School. The learned Judge put preliminary questions to him to ascertain whether the witness can rationally answer and having satisfied about capacity of the witness, he did not administer oath as witness is a child. 6. P.W.2 Dnyaneshwar Hariba Dhanavade at Exh.17 acted as a panch in relation to the spot which was in the house of Sambhaji Krishna Mali situated in agricultural land near Khandobachivadi to Vasagade Patil Mala road. The house is facing East side. There are two doors in the Eastern wall of the house. He noticed blood stains on the flooring. The blankets (Article Nos.1 and 8), Chaddar (Article No.2), Green coloured Saree (Article No.3), Carpet (Article No.4), Rose coloured shirt (Article No.5), shirt (Article No.6) and bandi (Article No.7) were seized. The photographs produced by the prosecution show height 5 of hut/room of the deceased is not too high, the house is constructed with bricks, mud and losely kept clay tiles. 7. P.W.3 Madhav Jaysing Patil at Exh.19 is one of the co-panchas who witnessed discovery statement dated 26th May, 2004 made by the accused before the Investigating Officer to the extent that the incriminating axe and the rope which were used by him to drag Anuradha out of the house are kept by him in grass standing on bund situated near sugar-cane crop owned by Raju Shinde within area of village Bhilavadi and to show the place and to produce the rope and axe. It is signed by another panch and P.W.3. After discovery statement made by the accused, at the instance of accused Police Officer with the panch P.W.3, photographer, cameraman and other staff members went by jeep to the land of Raju Shinde. Videography was also done. The accused took in deep grass in the height of 5 to 6 feets and at his instance Investigating Officer seized the axe and rope recorded under panchanama (Exh.21). 8. P.W.4 Kum.Anuradha Sambhaji Mali at Exh.33 was born on 22nd September, 1989 and stays with her parents and P.W.1. She has witnessed brutal attack to her parents. 6 9. P.W.5 Bashir Abbas Attar at Exh.34 is one of the panch witnesses. Concerning apparels of accused (Exh.35). The clothes of the accused had blood stains and even the accused had injuries below eye lid, knee and chest. 10. P.W.6 Chandrakant Dhondiram Pawar at Exh.36 is employer of the accused having his fields opposite to the house of deceased Sambhaji Mali. At the relevant time there was a Grape garden. The accused was employed with him one and half years to two years prior to the incident as labour in the agricultural land and the accused was staying in the shed in the land. P.W.6 pointed that 15 days prior to the incident the accused had teased Kum.Anuradha and Sambhaji Mali (deceased) having conveyed the same, the accused was rip remanded, the accused assured to behave properly. However, since P.W.6 was not satisfied with his work, accused was removed on 22nd May, 2004. 11. P.W.7 Dr.Suryakant Ankush Shinde at Exh.37 was working as Casualty Medical Officer at Civil Hospital, Sangli and on 23rd May, 2004 at 10.30 A.M he carried Post Mortem on the dead body of Sou.Laxmibai Mali, on examination he found following external injuries on the dead body of said Sou.Laxmibai Mali. (i) CLW over scalp on mid left lateral aspect, 15 cm x 3 cm bone deep. With skin tag of half cm at mid intact skin, where direction of would changed posteriorly and laterally, clots and bleeding were present, fracture skull was present. P.W.7 found the internal injuries on the dead body of Sou.Laxmibai Mali. The 7 reference of internal injury is in column No.19 and external injury is in coloumn No.17. The injuries at column Nos.17 and 19 correspond to each other and they were antimortem. In the opinion of Dr.Shinde cause of death of Sou.Laxmibai was shock due to cranio cerebral injury with severe haemorrhage and consequently, Post Mortem Notes at Exh.38 and advance Death Certificate of Sou.Laxmibai Mali (Exh.34) was issued by him. P.W.7 confirmed that the injuries noted by him could be with the impact of axe blow and the injuries are sufficient to cause death in ordinary course. Thus, from the tenor of cross examination, admission of inquest accused has also is not disputed that death of Laxmibai was homicidal and unnatural. 12. P.W.8 Dr.Madhav Haribhau Gore at Exh.39 was attached to Civil Hospital, Sangli and on 24th May, 2004 he carried Post Mortem on the dead body of Sambhaji Krishna Mali, he recorded the following external injuries in Column No.17 of his notes (Exh.40). (i) A large verticle linear sutured wound with 11 stitches (ii) A small incised wound 1 cm x .1 cm very close to the injury no.1. I noticed that there was bleeding from the left ear which suggests fracture of the base of the skull bones. The corresponding internal injuries noticed by him are referred in column Nos.19 & 20 of his notes which are as under :- (i) There was massive haemotoma under the scalp extended over left parietal temporal region. This was corresponding to injury no.1. 8 (ii) There was fracture with multiple pieces of parietal and temporal bones. A small portion of brain matter was clearly visible and it was with clotted blood. A wide portion of fracture of bones is seen between size of 8 cm x 6 cm over and the same is situated over left parieto temporal region. Fracture line is extended over left side of base of skull of medial carnial cavity, corresponding to injury no.1. (iii) There was extra dural haemorrhage with blood clot over left parieto temporal region. The menings over left parieto temporal is ruptured and brain matter is protruding out of it. There was massive sub archonoid haemorrhage over the same region with blood clots. (iv) There was laceration underline brain lobes left parietal and left temporal. and in his opinion, the injuries were corresponding to injury No.1 recorded by him in his notes. The death of Sambhaji Mali is due to fracture of left parietal and temporal bone with intra cranial haemorrhage and laceration of left temporal left parietal lobes of brain, associated with bilateral basal penumonitis (Post Mortem Notes Exh.40). The injuries analyised by him to Sambhaji Mali are possible, by Axe (Article 18) which are sufficient in ordinary course to cause death. The accused, as stated earlier has admitted inquest drawn on the body of Sambhaji Mali and tenor of cross examination also does not dispute about the death of Sambhaji Mali. According to accused, somebody on enemical terms had killed Sambhai Mali and his wife Sou.Laxmibai Mali. The evidence of P.W.1, P.W.3, P.W.4, P.W.6, P.W.7 and P.W.8 establish that the death of Sou.Laxmibai Mali and Sambhai Mali was homicidal. 13. P.W.4 Kum.Anuradha Mali suffered injuries of Ligature mark and 9 abrasions. She was examined by P.W.10 Dr.Archana Sharad Sawant, Casualty Medical Officer. P.W.4 was admitted as indoor patient. X-rays were drawn and Kum.Anuradha (P.W.4) was discharged on 25th April, 2004 from the hospital. The history given by P.W.4 is recorded by P.W.10 Dr.Archana Sawant. 14. P.W.11 Suhas Madhukar Nadgauda at Exh.44, Assistant Police Inspector attached to police station carried investigation. 15. The learned defence counsel claimed that the rope referred by P.W.1 or P.W.4 does not find its reference in the F.I.R. P.W.1 a minor 11 years old is a tutored witness. The evidence of P.W.10 Dr.Archana Sawant established that P.W.4 did not see the accused. It is difficult to get that the accused entered through roof in the house of Sambhaji Mali with an axe in his hand. Benefit of doubt is to be given to the accused. The blood group of Sou.Laxmibai Mali and Sambhaji Mali is reported to be inconclusive while Blood group of accused being 'B' cannot be taken into consideration. 16. At the outset we clarify that there is no delay in sending Muddemal Property to the office of C.A. There is no evidence to suggest that P.W.1 was a tutored witness. His young age will not detract/dilute evidentiary value. P.W.1 10 was easily facilitating his date of birth, death of his father Vitthal Sambhai Mali on 22nd April, 2002 or about house of his maternal uncle at Islampur. In the Court he also conveyed that his father died due to Tuberculosis. His sister Swati stays with his mother Savita. He is aware that there is a Court at Tasgaon as his Grandfather was attending the said Court. He has disputed that there were quarrels between the deceased and his mother Savita. P.W.1 denied that after two months of death of Vitthal Sambhaji Mali, a quarrel ensued between his maternal uncle Prasad and the deceased Sambhaji over the agricultural properties. He denied that his paternal Grandfather (deceased) was intermittently drinking. He gave names of his other relatives namely Sadashiv, Shankar and Mahadeo who are brothers of the deceased Sambhaji. P.W.4 is Kum.Anuradha Mali, her evidence is in tune to the evidence of P.W.1. 17. We have referred the intelligent answers given by P.W.1 who is 11 to 12 years while his paternal aunt (P.W.4) is 15 years and 6 months old. On our analysis we have no hesitation to accept the evidence which cannot be discarded solely on the ground of they being children. Non administeration of oath to P.W.1 or P.W.4 will not shake their evidence. Incompetency to administer oath will not be defusing the admission of evidence of P.W.1 and P.W.4. 18. It has been observed by the Hon'ble Supreme Court in the matter of RATANSINH DALSUKHBHAI NAYAK Versus STATE OF GUJARAT, reported in 11 (2004) 1 Supreme Court Cases 64 that a child of tender age can be allowed to testify if it has intellectual capacity to understand questions and give rational answers thereto. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that its conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. In the present case, the learned trial Judge has elaborately analysed the evidence of P.W.1 (child witness). There is no reason as to why he would falsely implicate the accused. Nothing has been brought on record to show that 12 P.W.4 or her father had any animosity so far as the accused is concerned. The prosecution has been able to bring home its accusations beyond the shadow of a doubt. Further, the trial court on careful examination was satisfied about the child's capacity to understand and to give rational answers. That being the position, it cannot be said that the witness P.W.1 or P.W.4 had no maturity to understand the import of the questions put or to give rational answers. P.W.1 was cross-examined at length and in spite thereof he had described in detail the scenario implicating the accused to be the author of the crime. The mere fact that the child was asked to say about the occurrence and as to what he saw, is no reason to jump to a conclusion that it amounted to tutoring and that he was deposing only as per tutoring what was not otherwise than he actually saw.” 19. We are conscious that the witnesses are pliable and even liable to be influenced easily, they can be shaked and moulded. However, reading evidence of P.W.1 and P.W.4 will not lead us to draw an impression that they could be tutored. On the other hand, their evidence is in natural sequence giving accurate accounts of the events in succession. Few events, if overlapped by either P.W.1 and P.W.4, will have to be considered in proper perspective and on that basis their testimony solely should not be discarded. 20. The presence in the room/hut of P.W.1 and P.W.4 with the deceased being the father and mother of P.W.4 and Grandparents of P.W.1 cannot be 13 disputed as after the dinner they slept in Vharanda by closing the door by a chain from inside. Electricity was on. At 5.00 A.M since they came across thud and it was sufficient to make them awake. They found the accused had an axe and he had entered the house by removing tiles of the roof. The accused dragged Kum.Anuradha (P.W.4) by holding her hands. It was, when the accused was removing the chain of the door, at such time it was Sambhaji and Sou.Laxmibai intervened the accused as to where he was taking P.W.4 Kum.Anuradha. The accused having armed with axe, gave its blow to the head of Sambhaji. As a result, he cried and fell down. When Sou.Laxmibai, mother of P.W.4 tried to resist the accused, the accused used the same axe on her head causing stab injury. Her head cracked like a coconut and she fell down. 21. The feelings in the mind of the accused were so grievous and brutal that he put rope around neck of Kum.Anuradha and started dragging her out of the house. P.W.1 and P.W.4 sought assistance by yelling. This was responded by the neighbourer P.W.6 and P.W.9. Consequently, the accused left Kum.Anuradha (P.W.4) and fled. Chandrakant Pawar, Mohan Mali, Popat Mali and Sarjerao Shinde chased the accused. They did not succeed in apprehending him. The contents in the F.I.R at Exh.16 of P.W.1 also are in tune with the substantial evidence. The only missing aspect is non-reference of rope in F.I.R by the complainant. The age of the complainant coupled with surrounding circumstances, cannot be simply be over looked. They were in a 14 traumatic situation and the assaults to their parents/grand parents were witnessed by them at the hands of the accused. Non-reference of rope in F.I.R will not mean it is subsequently put in by the prosecution, as the same reflect in evidence of P.W.1, P.W.4, P.W.6 & P.W.9. 22. The eye witnesses P.W.1 and P.W.4 had an occasion to intract with the accused for sufficient long time and were in a position to note that the accused had a Blue coloured shirt and Green coloured pant on his person, which apparels police have seized. These witensses have identified the accused in the Court. That apart, accused has not disputed his identity. 23. The defence claimed that the history narrated by P.W.4 to Dr.Archana Sawant distort her version. Let us now read what P.W.10 Dr.Archana Sawant has to say. She has examined Kum.Anuradha P.W.4 on 23rd May, 2004 at 7.15 A.M. It was in succession of the events of assault and bleeding injuries suffered by parents of P.W.4. P.W.10 noticed that P.W.4 Kum.Anuradha was in a frightened condition and was not in a position to speak. Initially, she was unable to narrate the history. On examination P.W.10 found Ligature mark over anterior and both leteral aspect of neck, 14 cm x 2 cm reddish colour transversely present situated below thyroid cartilage, abrasions around ligature marks present, which were red in colour. SubconJunctivial haemorrhage present in both eyes. Abrasion over left cheek, 1 x 1 cm red in colour. In the 15 opinion of P.W.10 injury No.1 is caused due to ligatic material which was the dangerous injury and it could have been caused within six hours, preceding the examination. According to her, injury No.1 is popssible by the rope which was shown to her in the Court. 24. The surprising aspect noted and recorded by P.W.10 is, the history given by P.W.4 “she was sleeping in her home that when she woke up in the morning at around 6.30 a.m., she saw her father in blood with injuries and in unconscious state, that then she immediately went to her mother, to inform her, but her mother was also with injuries with blood and in unconscious state that she went out of the home through farm to inform other people of village, where he was caught by some unknown person from backside in the farm, that she was strangulated by a rope and her mouth was pressed by hand very firmly, that then she started shouting requesting to leave her, that after few minutes she was released by the assaulter.” 25. The history recorded by P.W.10 in natural sequence, in the light of evidence of P.W.4 death of her parents and the evidence of P.W.6 and P.W.9 will not be carrying any weight to believe. It is established principle of law, inconsistency between testimony of eye witnesses is protected with medical evidence, the occular testimony should not be brushed aside. Our earlier discussion inherently establish that in natural sequence P.W.1 and P.W.4 could 16 only remain with the deceased and were under guardianship of the deceased. Their version examined by us is generating a ring of truth than any accomplishment or exaggeration. As noted earlier, no contradictions or inconsistencies are pointed to disbelieve their version. Since the accounts of events narrated by P.W.1 and P.W.4 inspire the confidence and found to be credible and trustworthy, the opinion of P.W.10 in the form of history narrated by P.W.4 will lose significance. It would be erroneous to rely solely on the evidence of P.W.10 Dr.Archana Sawant on the part of recording history of P.W.4 and to exclude the otherwise well neated evidence of P.W.4. Thus, the medical evidence pointing to alternative possibilities will not be decisive and conclusive factor as P.W.1 and P.W.4 have proved to be eye and ear of justice. That apart, as stated earlier, even, Dr.Archana Sawant noticed Kum.Anuradha in traumatic state of mind, as initially she couldnot narrate the story or the events. It will not sound speculative, however, since P.W.4 had soft corner to the accused being a friend or developed intimacy, she would have given thought for a concession to the accused. We discard the history recorded by P.W.10. 26. In the matter of Sujit Gulab Sohatre and others v. State of Maharashtra, reported in 1997 CRI.L.J.454 there was one solitary eye-witness Suresh Kamble P.W.2 and the Court found that the history of injury of Suresh Kamble was prepared by Dr.Kendre P.W.7, the Bench did not approve such history and observed “We may also mention that the history of assault contained 17 in the medical papers is not substantive evidence and can only be used to contradict the person who has given it. Hence we also ignore this circumstance.” In the instant case no explanation is sought from P.W.4 except suggesting that she has falsely roped to the accused. 27. P.W.6 Chandrakant Pawar and P.W.9 Ashok Mali saw the accused dragging Kum.Anuradha with an axe in his hand, by means of rope which was put