: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.215 OF 1990 CRIMINAL APPEAL NO.215 OF 1990 CRIMINAL APPEAL NO.215 OF 1990 The State of Maharashtra ... Appellant V/s. 1. Nanubai Dhanjibhai Vegada 2. Kisan Babu Solanki ... Respondents Miss Rajashree Gadhvi, APP, for Appellant-State. Mr.V.D. Surve for Respondent No.1. Mr.A.N. Mulla for Respondent No.2 CORAM: D.G. DESHPANDE & D.G. DESHPANDE & D.G. DESHPANDE & SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, JJ. JJ. JJ. JUDGEMENT RESERVED ON: APRIL 2, 2007 APRIL 2, 2007 APRIL 2, 2007 JUDGEMENT PRONOUNCED ON: MAY 04, 2007 MAY 04, 2007 MAY 04, 2007 JUDGMENT (PER SMT.MHATRE, J.): JUDGMENT (PER SMT.MHATRE, J.): JUDGMENT (PER SMT.MHATRE, J.): . This Appeal has been filed by the State against the judgment and order of the Sessions Court, Bombay acquitting the accused who had been charged for offences punishable under section 302 r/w 34 of the Indian Penal Code. The Sessions Court came to the conclusion that the death of the victim Dhanjibhai Vegada was suicidal and not homicidal in nature and, therefore, the accused have been acquitted. 2. It is the case of the prosecution that the accused No.1 and the victim were married. Accused Nos.1 : 2 : and 2 had an illicit relationship which the victim objected to. Accused Nos.2 and 3, therefore, went to the house of the victim on 16.3.1989 at about 9 pm and threatened to kill him if he harassed accused No.1 any further. According to the prosecution, on 17.3.1989 between 5.30 and 6 am, accused Nos.2 and 3 entered the house of the victim, stabbed him in the neck and ran away. The prosecution has mainly relied on the evidence of the daughter of the victim who was 7 years old at the time of the incident. The prosecution claims that she was an eye witness. On the basis of the statement made by her before the police and on the suspicious behaviour of accused No.1, the prosecution arrested the three accused persons. They were tried for having committed the offence under section 302 r/w 34 of the Indian Penal Code. Accused No.1 was also charged for an offence punishable under section 203 of the Indian Penal Code. The accused have been acquitted by the Sessions Court. The present Appeal has been filed by the State only against accused Nos.1 and 2. 3. The prosecution has relied on the testimony of 11 witnesses in support of its case. PW1 is the seven year old daughter of the victim and accused No.1. PW2 is the sub-tenant of the victim. PW3 is the draftsman who has drawn the plan of the house of the victim where he was found lying dead. PW4 is a neighbour of the victim. PW5 who is also a neighbour of the victim has : 3 : been examined as the Panch witness to prove the spot panchanama and inquest panchanama. PW6 is the PSI who has made the Station Diary entry when informed of the incident by accused No.1. He has drawn up the spot panchanama and seized various articles and sent them for analysis to the chemical analyser. He has also prepared the inquest panchanama. The FIR has been lodged by PW6. PW7, PW8 and PW9 have been examined as panch witnesses who have spoken about the seizure of clothes of accused Nos.2, 3 and 1 respectively. PW10 is the Medical Officer who has conducted the postmortem examination. PW11 is the Investigating Officer. 4. The learned Assistant Public Prosecutor has submitted that the Sessions Court was in error in concluding that the death of the victim was suicidal and not homicidal. He submits that the Doctor, PW10, has opined that it was impossible that a gash on the neck, just below the chin of the victim, which was 16 cms X 7.5 cms X 5 cms could have been self inflicted. The Doctor in fact had opined that such an injury could be possible only if somebody else had assaulted the victim. It is submitted that the Sessions Court ought to have accepted the opinion of the Doctor since there was no contrary opinion put forth by the accused. It is further submitted that the testimony of the child witness who has been examined by the prosecution was natural & sincere and ought to have been accepted. : 4 : According to the prosecution, there were no compelling reasons to discard the testimony of the child witness despite the fact that it was corroborated to a certain extent by PW2, the sub-tenant of the victim. The learned prosecutor submits that the testimony of the child witness need not be discarded only because it is uncorroborated. Apart from this, she submits that there was a motive for accused Nos.1 and 2 to do away with the victim since they were having an illicit relationship. She submits that the intention of the accused was very clear because accused No.2 had threatened to kill the victim if he continued to harass the accused No.1. It is urged that accused No.1 is equally guilty of the offence since she had submitted false information to the police, that her husband had killed himself when in fact his death was homicidal. 5. The learned advocate for accused No.1 has submitted that there was no evidence at all on record involving accused No.1 in the crime. In fact he submits that if the testimony of the child witness is to be accepted, she has not implicated accused No.1. No other witnesses according to the learned Advocate have spoken about the motive of accused No.1 for killing the victim. In fact, according to the learned advocate, accused No.1 has not been named at all as being a party to the assault on the victim as all the witnesses have stated that she shouted out that her husband was killing : 5 : himself when she found her husband was injured. 6. The learned advocate for accused No.2 submits that the testimony of the child witness should not be believed since her statement was recorded by the police about 2 days after the incident. According to the learned advocate, the incident occurred in the early hours of 17.3.1989, while the statement of the child witness was recorded by the police on 19.3.1989. This is fatal to the case of the prosecution, claims the advocate. Apart from this, it is contended that before the testimony of the child witness is accepted, the Court must display great care and caution as it is extremely important that the child should not be tutored by other members of the family, either before the statement is recorded by the police or before the child is examined in Court. He relies on the judgments in State of Maharashtra v/s. Gajanan Baburao Phakatkar, 2005 ALL MR (Cri) 306 2005 ALL MR (Cri) 306 2005 ALL MR (Cri) 306; Keru Kondiba Nitnaware v/s. State of Maharashtra, 2004 ALL MR (Cri.) 1226 2004 ALL MR (Cri.) 1226 2004 ALL MR (Cri.) 1226 and Bhagwan Singh & Ors. v/s. State of M.P., 2003 ALL MR 2003 ALL MR 2003 ALL MR (Cri) 564 (S.C.) (Cri) 564 (S.C.) (Cri) 564 (S.C.) to buttress his arguments. 7. The learned Advocate then submits that it cannot be presumed that the death of the victim was homicidal and not suicidal. He submits that the Doctor has opined that the injury was not self inflicted only because of the dimensions of the wound, especially its depth. He : 6 : submits that the postmortem notes indicate that the windpipe had been cut. He therefore urges that the depth of the injury has to be noticed in the context that the wind pipe is a hollow pipe and a stab injury which cuts the wind pipe would automatically be deep. He then submits that although a blood stained knife was found at the scene of offence, the police have not taken any precaution to have the finger prints on the knife analysed. He submits that none of the witnesses speak of any of the alleged illicit relations between the accused Nos.1 and 2 and, therefore, the Sessions Court was correct in coming to the conclusion that accused No.2 was not guilty of the offence with which he was charged. 8. The case of the prosecution is that on 16.3.1989, accused No.2 had threatened the victim by going to his house and warning him to refrain from harassing accused No.1. This fact has been deposed to by both PW1, the child witness and PW2, the sub-tenant. PW1 in fact states that accused No.2 threatened both her parents. PW2 who is the sub-tenant of the victim was staying in the inner room in the flat allotted to the victim. The victim and his family stayed in the outer room. The entrance of the flat was through the room occupied by the victim. PW2 had to pass through this room to enter his own room. PW2 states that accused No.2 used to visit the victim’s house some times and : 7 : would converse with both the victim and accused No.1. On the night of 16.3.1989, he found one person standing near his room. He then went into his room and saw accused No.2 talking to the victim angrily. They were conversing in Gujarati which the witness did not follow. Thus, both PW1 and PW2 have spoken about accused Nos.1 and 2 knowing each other and that accused No.2 had threatened the victim the previous night. 9. PW1 has stated in her deposition that she was awake at 5.30 in the morning and found that the accused No.2 had entered into the house. He was armed with a knife. She saw the assault on her father. However, she did not raise an alarm since accused No.2 threatened to kill her and her mother if they raised an alarm. She claims to have awoken her mother when she found the door being opened. She then says that after accused No.1 had struck her father she and her mother raised an alarm due to which accused Nos.2 and 3 ran away. A specific question was put to this witness as to whether the relationship between her parents was good. However, it has been noted by the Sessions Court that the child was not able to understand the meaning of "relationship between her parents". In the cross-examination, this witness has stated that accused No.2 forcibly opened the door to their house and entered in. The spot panchanama does not show that there was any break in. She then states that after she was warned by accused No.2 not to : 8 : raise an alarm, she saw accused No.2 strike her father twice with the knife on his neck. She has stated that when accused No.2 came into the room, an electric bulb was on. She has then spoken about her mother going to the police station to inform the police about the death of her father. She has admitted that she did not tell either the police or PW2 or his wife that she had seen accused No.2 stabbing her father. This witness has denied that her mother informed her maternal uncle at the police station that her father had committed suicide. There are several omissions and improvements in the testimony of this witness. The witness has not mentioned anything about her mother being threatened by accused No.2, when her statement was recorded by the police. However, while deposing in Court, PW1 maintained that her mother was also threatened by accused No.2. She has admitted that she stayed with her maternal uncle but denied having been tutored by him. She has then said that her mother had not informed the police or the neighbours that her father had committed suicide. In her cross-examination, this witness has stated that the police spoke to her only on the day of the incident and not thereafter. If that is true, then it is not clear from the case of the prosecution as to how her statement was recorded by the police two days after the incident. According to this witness, after stabbing her father, accused No.2 ran away from the scene of offence. If the evidence of the child witness : 9 : is to be accepted, then it would have to be accepted as a whole and not in parts convenient to the prosecution. The testimony of this witness establishes categorically the involvement of accused No.2 in the crime. However, this witness has stated that accused No.2 had threatened both her and her mother when he entered the house. Admittedly, the statement that accused No.2 had threatened accused No.1 as well has been omitted in the statement which was recorded by the police. PW6 is the police officer who has recorded the statements of the witnesses. He has also filed the FIR. This witness has denied that PW1 had in fact disclosed in her statement that accused No.2 had threatened to kill her and her mother if there is an alarm. He has also denied that the witness had disclosed to him that accused No.2 had struck her father with a knife on his neck or that she had stated before him that after the incident accused No.2 had run away. In fact, in the statement recorded by the police, PW1 has stated that she awoke when she heard her father shout. She then saw accused No.2 standing beside her father who was lying in a pool of blood. She saw accused No.2 with a knife in his hand. She has stated that she did not raise an alarm as she was frightened when accused No.2 threatened to kill her if she raised an alarm. The testimony of this witness obviously is an improvement on her statement recorded by the police on 19.3.1989. : 10 : 10. From the statement recorded by the police, it appears that PW1 was not an eye witness to the incident but has merely seen accused No.2 with a knife in his hand, standing beside the victim who was lying in a pool of blood. 11. As stated earlier, PW2 has corroborated the testimony of PW1. He has spoken about the quarrel between the victim and accused No.2 on 16.3.1989. He has also spoken of quarrels between the victim and his wife, accused No.1. He has stated that on 17.3.1989, he awoke when he heard accused No.1 shout "Kaat raha hai, Kaat raha hai". He looked into the victim’s room and found that he was lying on the floor and his neck was slashed. He has spoken about accused No.1 reporting the incident to the police. He has also noticed that she was not crying immediately after the incident. There are contradictions in the statements of this witness as well. In fact he has been cross-examined by the prosecution at the trial to bring out the contradictions in his evidence and statement recorded by the police. This witness has admitted that the victim was addicted to liquor and he was in habit of shouting and talking loudly under the influence of liquor. 12. PW4 who is the neighbour of accused No.1 has stated that he was awake at 5 pm on 16.3.1989 and he claims to have seen accused No.2 near his house. : 11 : According to this witness on 17.3.1989, he heard accused No.1 cry out that her husband was cutting his own neck. He peeped into the victim’s room when he heard the shouts and saw him lying on the floor with his throat slashed and blood oozing out from it. He saw accused No.1 outside the room and noticed her shouting and crying. He has spoken about the presence of PW2 at that point of time. PW4 was one of the six or seven persons who followed accused No.1 to the police station to report the incident. This witness was working as a Mukadam at the Borivali Railway station where both accused Nos.1 and 2 were working as sweepers. The testimony of this witness corroborates the depositions of PW1 and PW2 only to the extent that accused No.2 was seen near the house of the victim on 16.3.1989. This witness has not seen the incident in which the victim met with his death. 13. PW5 is the panch witness who has proved the attachment of the articles in the room including the blood stained napkin, pillow, quilt and the knife. He has proved the spot panchanama and inquest panchanama. This witness has stated that when he entered into the room, the victim was found lying with his head resting on a pillow. An handkerchief was found on his left side and a knife was lying beside the victim’s body on the right. According to him, the knife was lying about an inch away from the victim’s right clenched fist. There : 12 : was a trail of blood from the victim’s neck upto the door of the balcony. In the Panchanama, it has been noted that the victim’s hands were smeared with blood and that a sharp knife was found lying near the left hand of the deceased at a distance of 3 inches from his body. A little later in the Panchanama, it has been recorded that the knife was found lying near the right hand of the deceased. Therefore, it is not clear as to whether the knife was found near the right side of the deceased or on his left. When the Panchanama was recorded at 7 am it was found that the victim’s fists were clenched. 14. PW6 is the police officer who has recorded the Station Diary entry and has proved the same. He has assisted in the investigation of the crime. According to him, after returning from the spot of the incident, he recorded an accidental death. However, since he was suspicious of the cause of death of the victim, he made enquiries subsequently on the 17th and 18th March, 1989. He doubted the bonafides of accused No.1 since he noticed that she "was not weeping and grieving openly as was to be normally expected". This witness has lodged the FIR at 1.45 pm on 19.3.1989. There is no explanation by this witness as to why the FIR was not recorded immediately after accused No.1 informed the police and the inquest and spot panchanamas were recorded. There is nothing on record to show that there : 13 : was some impediment in recording the case against the accused immediately after the occurrence of the incident. 15. PW7 is the panch witness who has spoken about the seizure of the clothes of accused No.2 According to this witness, reddish stains were found on some clothes of accused No.2 which were seized by the police on 19.3.1989. These clothes were found drying in the hut of accused No.2. 16. PW9 has proved the seizure of the clothes of accused No.1 on 19.3.1989. 17. The next witness examined by the prosecution is the Medical Officer who performed the postmortem examination. He has stated that there was only one incised wound, 16 cms X 7.5 cms X 5 cms on the neck of the deceased just below the chin. The witness has categorically stated that the injury could not have been self inflicted and, therefore, the death was homicidal. According to this witness, the injury could not have been self inflicted and therefore, the death was homicidal. The witness has stated that the injury could not have been caused only by one blow and a horizontal movement of the blade more than once could have caused such an injury. The witness has been extensively cross-examined on behalf of the accused. He has denied : 14 : the suggestion that there could be a possibility of the death being suicidal and not homicidal. He has explained that the injury was 5 cms deep and such a deep wound could only be homicidal in nature. 18. PW11 is the investigation officer. He recorded the statement of accused No.1 and noticed her peculiar behaviour. According to him, this behaviour of accused No.1 led to the arrest of accused Nos.1 and 2. He recorded the statements of the witnesses who have been examined by the prosecution before the Court between 19th and 24th March 1989. As noticed earlier, he has denied that PW1 had mentioned while her statement was being recorded that she had seen accused No.2 stabbing her father with the knife. All the improvements made by PW1 in her evidence have been denied by this witness. According to this witness, finger prints could not be deciphered either on the knife or the body of the deceased. After seizing the various blood stained articles, this witness had sent them for analysis to the chemical analyser. The report from the Chemical Analyser mentions that the blood stains detected on the clothes of accused Nos.1 and 2 are of group A. Human blood was also detected on the knife which belonged to the group A. 19. Therefore the circumstances which indicate that the accused No.2 was involved in the homicidal death of : 15 : the victim Dhanjibai are: i) he had been seen in the vicinity of the house on 16.3.1989; ii) he had quarrelled with accused No.1 and the victim on 16.3.1989; iii) the child witness had seen him standing beside the victim with a knife in his hands; iv) he ran away from the spot of the offence; v) clothes stained with blood were recovered from him. However, it was not possible to detect the group of the blood stains on his shirt which had blood stains in a few places. The report of the Chemical Analyser indicates that the blood elements were disintegrated and, therefore, the origin could not be determined. His other clothes did not bear any blood stains. 20. These circumstances would indicate that they are links in a chain which point to the only hypothesis and that is, that accused No.2 had assaulted the victim and caused his homicidal death. 21. Accused No.1 has been charged under section 302 r/w 34 of the IPC as also section 203 of the IPC. Before considering whether she shared a common intention with accused No.2 to kill the deceased it would be appropriate to ascertain whether she is guilty of the offence punishable under section 203 of the IPC. This section makes the giving of false information in respect of commission of an offence, punishable. The essentials to attract this section are: i) an offence has been : 16 : committed; ii) the accused knew or had reason to believe that such a offence was committed; iii) he gave false information regarding the offence; and iv) the accused had reason to believe that it was false. In the present case, there is no doubt that accused NO.1 has given false information regarding commission of the offence. We have already held that the death of the victim was homicidal and accused No.2 was responsible for his death. Accused No.1 was present alongwith her children including PW1 in the room when accused No.2 entered and assaulted the victim. Therefore, she knew that it was accused No.2 who had committed the crime. Despite this, she informed the police that the victim had committed suicide. It maybe that accused Nos.1 and 2 were having an affair as alleged by the prosecution and it was for this reason that accused No.1 had tried to shield accused No.2 by stating that her husband had committed suicide. 22. We will now advert to the question as to whether accused No.1 is guilty and had a common intention with accused No.2 to kill the victim. Under section 34 of the Indian Penal Code, before a person can be held liable for the acts done by another, it must be established that (i) there was a common intention between the two, such as a pre-arranged plan; ii) there is some participation by