1 APEAL119.2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.119 OF 2004 Convicted Prisoner No.C/13294, Ashok Parsappa Kodvan, Yerawada Central Prison, Pune—411 006. : Appellant (Orig. Accused) V/s. The State of Maharashtra (To be served through the learned Public Prosecutor, High Court, Appellate Side, Bombay). : Respondent .... Mr.Rajesh D. Bindra for the appellant. Mrs.A.S.Pai, Addl. Public Prosecutor for the State. ..... CORAM : D.D. SINHA & A.R.JOSHI, JJ. Date of Reserving ) : 23.06.2011. the Judgement. ) Date of Pronouncing ) : 22.07.2011. the Judgement. ) 2 APEAL119.2004 JUDGEMENT (Per D.D.Sinha, J.) Heard the learned counsel for the appellant and the learned Addl. Public Prosecutor for the State. 2. The I Ad-hoc Addl. Sessions Judge, Solapur, vide impugned judgement and order dated 18.12.2002 convicted the appellant for the offence punishable under section 302 and sentenced him to suffer R.I. for life; fine of Rs.5,000/- is also imposed on the appellant, in default to suffer R.I. for one year. 3. The circumstances which have given rise to the prosecution of the appellant are as follows:- On 13.7.2002 Kiran Namdeo Aucha (P.W.10), Investigating Officer, at about 11.00 p.m. received an information from police head constable Shinde that the owner of Sunil Hotel at Lamboti, viz., Abhiman Waghmode has informed the police station by phone that his servant Ashok Parasappa Kodvan (the appellant) has killed his wife in the field at Lamboti. Police station diary entry (exh.39) was made accordingly. PSI Aucha went to gat no.66 owned by Abhiman with the police staff. They 3 APEAL119.2004 found the dead body of a woman lying in the field near the wasti and the appellant was detained by Sidhram Bhau Kore in that wasti. The dead body was seen by the police personnel in the light of torch and noticed that the deceased sustained injuries on the fore-head and neck. The dead body was taken to Primary Health Centre, Mohol. Sidhram was asked to go to the police station for filing F.I.R. Inquest panchanama of the dead body was drawn the next day morning and, thereafter, the dead body was referred for post-mortem. The appellant-accused was arrested at about 4.00 a.m. on 14.7.2002, after registration of crime no.196/2002. Sidhram was the resident of Pankangaon. However, at the relevant time, he was residing in the land of Waghmode at Lamboti and lodged a report in the police station alleging that the appellant and his two brothers, viz., Basveshwar and Suresh were working under his landlord Kuber Apparao Waghmode since a fortnight from the date of the incident along with their family members. The appellant married deceased Vanita after deserting his first wife. A week before the incident i.e. on 13.7.2002, the appellant beat his wife, suspecting her chastity. On 13.7.2002 while the complainant Sidhram Bhaurao Kore was sleeping in his house, the nephew of his landlord, viz., Appasha @ Kinchya came to his wasti at about 10.00 p.m. and told Abhiman Waghmode that the appellant was beating his wife and the mother of the appellant Vithabai sent him to call 4 APEAL119.2004 the landlord. Abhiman asked the complainant Sidhram to go and tell the appellant not to quarrel with his wife. Sidhram along with Appasha Vanmane went to the wasti on motorcycle where the appellant was residing with his wife and mother. When they reached near the wasti of the appellant, they saw that the appellant and his mother Vithabai were sprinkling water on the face of Vanita who was lying in the field near the wasti. The complainant Sidhram asked Vithabai about the incident and she told him that the appellant beat Vanita and she was dead. The complainant also found that Vanita was dead. The appellant was trying to run away from the spot. However, the complainant caught him and detained him in the wasti. Thereafter, the police came to the spot. 4. The inquest panchanama of the dead body was made in the Rural Hospital, Mohol, on 14.7.2002, clothes of the deceased were seized and produced by police constable in Mohol police station. After arrest of the appellant, his clothes were also seized under a separate panchanama on the same day. The pieces of red coloured broken bangle were seized and the sample of soil was taken by drawing separate panchanama. The incident had taken place in the land bearing gat no.66 owned by Kuber Apparao Waghmode. The post-mortem examination on the dead body was conducted in the Rural Hospital from 9.30 a.m. to 10.30 a.m. on 5 APEAL119.2004 14.7.2002. The nature of the injuries sustained by the deceased were mentioned in the post-mortem report. All these injuries were ante- mortem and as per the opinion of the Medical Officer, the probable cause of death of Vanita was due to head injury with throttling. The Investigating Officer has recorded the statements of witnesses. Muddemal property was sent to the Chemical Analyser for analysis. The appellant discovered the stick pursuant to memorandum statement. On completion of the investigation, the charge-sheet was filed against the appellant for the offence under section 302 of the Indian Penal Code. The charge was framed and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant was that of total denial. 5. In the instant case, the prosecution examined in all ten prosecution witnesses to bring home the guilt of the appellant for the offence of murder. 6. The learned counsel for the appellant has submitted that in the instant case, the prosecution has failed to establish those circumstances on the basis of which the inference of guilt of the appellant can only be drawn. On the other hand, the circumstances brought on record supports 6 APEAL119.2004 the theory of innocence of the appellant. It is contended that the deposition of the Medical Officer and the evidence of panch witness on inquest is contradictory and, therefore, it affects the credibility of the prosecution evidence. It is contended that as per the deposition of Dr.Shravati Tembare (P.W.1), the dead body of the deceased was referred to the hospital for post-mortem examination at about 0.30 hrs. on 14.7.2002. However, the First Information Report (exh.18) was lodged at 1.10 a.m. in the police station It is submitted that as per the evidence of Madhukar Honmane (P.W.3) (the panch on spot panchanama), the dead body of a woman was lying near the wasti at the distance of 25 to 30 ft., and the spot panchanama was conducted by the prosecution at 8.10 a.m. on 14.7.2002. It is submitted that as per the deposition of Manohar Salgar (P.W.9), the inquest panchanama was drawn in his presence, on the spot at 6 a.m. on 14.7.2002 and as per the Doctor, the post-mortem examination was conducted on the dead body of the deceased at 9.30 a.m. on 14.7.2002. The learned counsel for the appellant, therefore, contended that the evidence adduced by the prosecution witnesses is self- contradictory and does not give the true version of the incident. It is contended that the post-mortem report as well as the medical evidence is silent in respect of the time and date of receipt of the dead body of the deceased in the hospital and in the absence of these particulars as well as 7 APEAL119.2004 in view of the self-contradictory evidence, the credibility of the prosecution case is vitally affected. 7. The counsel for the appellant further contended that Shrikrishna Vanmane (P.W.6) police constable in his evidence has stated that Sidhram lodged the F.I.R. in the police station in his presence. However, Sidhram Kore (P.W.2) in his cross-examination has admitted that the police obtained his thumb impression on the F.I.R. while he was sitting in his house. It is contended that the above referred inconsistency in the evidence creates doubt about the truthfulness of the First Information Report. Similarly, the learned counsel for the appellant further contended that Manohar Salgar (P.W.9) in his deposition has stated that he has seen the dead body of a woman having bleeding injuries whereas Kiran Aucha (P.W.10) the Investigating Officer in his cross-examination has admitted that there were no bleeding injuries on the dead body of the deceased. It is submitted that though the prosecution has examined Shrikrishna Vanmane (P.W.6) as an eye witness to the incident who has in the cross- examination admitted that the appellant went to stay in the field eight days prior to the incident and he did not hear any quarrel between the appellant and his wife and has also not seen the appellant beating the deceased Vanita. It is contended that the said admission of this witness in 8 APEAL119.2004 the cross-examination affects the veracity of the testimony of this witness, however, since this witness has not been declared hostile, the benefit must go to the appellant. 8. The learned counsel for the appellant has further contended that the evidence of Sidhram Kore (P.W.2) and Layavva Bagle (P.W.4) suffers from inherent improbabilities and cannot be relied upon. The muddemal property was forwarded to the Chemical Analyser after a gap of two months which creates doubt about the genuineness of the case of the prosecution. It is submitted that considering the inconsistencies and variance in the testimony of the prosecution witnesses, the conviction based on such unreliable evidence cannot be sustained in law and liable to be quashed and set aside. 9. The learned Addl. Public Prosecutor has, on the other hand, submitted that the prosecution witnesses were successful in bringing on record the following circumstances against the appellant:- (i) Dr.Shravati Tembare (P.W.1) in her evidence has deposed the number of injuries sustained by deceased Vanita. She has opined that the probable cause of death is the head injury with throttling. She has also stated that the injuries are possible by blows of hard 9 APEAL119.2004 and blunt object like stick. Hence, it is proved that the death of the deceased Vanita was homicidal. (ii)The circumstance against the appellant-accused is the motive which resulted in the death of his wife Vanita. It needs proper consideration that the appellant was married to the deceased Vanita only four months prior to the incident. Layavva Bagle (P.W.4) who is the mother of the deceased Vanita, in her examination-in-chief has stated that at the time when Vanita had been to her place, she told that the appellant was suspecting Vanita’s illicit relations with his brother Suresh and, therefore, used to beat her. The incident took place within 15 days after the deceased narrated these facts to P.W.4 Layavva Bagle. Vitabai Kodwan (P.W.5) who is the mother of the appellant who turned hostile and did not support the case of the prosecution has stated in her cross-examination that it is true that the appellant was quarreling with her as she was not getting up early in the morning and he used to beat her. Hence, the fact that there was quarrel and beating used to take place between the appellant and Vanita has been established by the prosecution. 10 APEAL119.2004 (iii)The conduct of the appellant as stated by Sidhram Kore (P.W.2) shows that the appellant wanted to run from the spot towards his residential house but he stopped him. This conduct of the appellant is consistent with the guilt. (iv)The evidence of Shrikrishna Vanmane (P.W.6) has deposed that the mother of the appellant i.e. Vitabai Kodwan (P.W.5) told him that the appellant was beating his wife Vanita and hence, requested him to go and inform Abhiman Waghmode who was the master of the appellant. This witness was instructed by Abhiman to inform the relative of the appellant Sidhram Kore and accordingly he informed Sidhram Kore (P.W.2). Sidhram Kore has corroborated the said fact that he was informed by Shrikrishna Vanmane (P.W.6) that the appellant had beaten up Vanita due to which she died. (v) In the F.I.R. (exh.18), the complainant Sidhram Kore (P.W.2) has stated that when he reached the spot of the incident, he saw the appellant and his mother i.e. Vitabai Kodwan (P.W.5) sprinkling water on the head and face of Vanita. He asked Vitabai Kodwan (P.W.5) the mother of the appellant what had happened, she replied that the appellant assaulted Vanita due to which she died. Thereafter, the appellant tried to flee away from the place of the incident. However, Sidhram Kore stopped him and handed over to 11 APEAL119.2004 the police. (vi)That Vitabai Kodwan (P.W.5), the mother of the appellant, who turned hostile has stated that she had informed Shrikrishna Vanmane (P.W.6) about the assault due to which Vanita died. The said fact is also corroborated by the evidence of Shrikrishna Vanmane (P.W.6). (vii)The fact that Vanita was staying along with Vitabai Kodwan (P.W. 5) and the appellant, has been admitted by Vitabai Kodwan (P.W.5), Layavva Bagle (P.W.4), Sidhram Kore (P.W.2) and Shrikrishna Vanmane (P.W.6) and the said fact is also admitted by the appellant in his 313 statement. (viii)The evidence of Monohar Salgar (P.W.9) and Kiran Auchar (P.W. 10) is consistent about the discovery of stick at the behest of the appellant. Exh.33 is the discovery panchanama. The learned Addl. Public Prosecutor has submitted that the prosecution has established that the appellant is guilty of the offence punishable under section 302 of the Indian penal Code and the conviction for life awarded by the learned Sessions Judge is sustainable in law. 10. We have given our anxious thoughts to the various contentions 12 APEAL119.2004 canvassed by the respective counsel and also carefully scrutinized the evidence adduced by the prosecution. 11. In the instant case, Vitabai Kodwan (P.W.5), the mother of the deceased and Shrikrishna Vanmane (P.W.6) are examined by the prosecution as eye-witnesses to the incident. It is, therefore, necessary to evaluate the testimonies of these witnesses. Vitabai (P.W.5) did not support the prosecution and, therefore, permission was sought by the prosecution to declare her hostile which was granted. 12. Shrikrishna Vanmane (P.W.6) was the landlord in whose land the appellant was working as a labourer. In the examination-in-chief of this witness, he has stated that the mother of the appellant Vitabai Kodwan (P.W.5) came to him at about 9.30 p.m. on 13.7.2002 (date of the incident) and told him that the appellant was beating his wife Vanita. Vitabai Kodwan (P.W.5) requested this witness to go to Abhiman and inform him that the appellant was beating his wife. Shrikrishna further stated in his examination-in-chief that he thereafter went to the wasti of the appellant and asked the appellant why was he beating his wife and asked him to accompany him since he was going to his master Abhiman. The appellant refused to accompany him. It has come in the evidence of this witness 13 APEAL119.2004 that he saw Vanita falling down on the floor at a distance of 30 to 35 feet from the wasti in the land in question. Shrikrishna thereafter came to Lamboti by motorcycle and told the incident to Abhiman Waghmode. It has come in the evidence of Shrikrishna Vanmane (P.W.6) that he and Sidhram (P.W.2) came to the wasti of the appellant by motorcycle, at that time the mother of the appellant told Sidhram that Vanita died because of the beating. Sidhram caught hold of the appellant and detained him in the wasti. 13. It is necessary to carefully scrutinise the cross-examination of this witness. Shrikrishna Vanmane (P.W.6) in his cross-examination has admitted that the appellant went to stay in the field some eight days prior to the incident and he did not hear any quarrel between the appellant and his wife during that period. In the same breath, Shrikrishna has admitted that he has not seen the appellant beating Vanita. The defence wanted to highlight this part of the admission of Shrikrishna appearing in the cross- examination to demonstrate that he has not seen the appellant beating Vanita at the time of the incident on 13.7.2002 and, therefore, this witness cannot be treated to be an eye-witness to the incident. The close scrutiny of the cross-examination of Shrikrishna would show that he has given the following admission in cross-examination:- 14 APEAL119.2004 (i) The appellant went and stayed in the field prior to eight days of the incident. (ii)He did not hear any quarrel between the appellant and his wife during that period. (iii)He has not seen the appellant beating Vanita. The last admission given by this witness in the cross-examination is necessarily referable to the period when the appellant was staying in the field eight days prior to the incident with Vanita. The above admission clearly shows that there was no quarrel between the appellant and his wife while they were staying in the field some eight days prior to the incident and it does not affect the testimony of this witness insofar as it relates to the incident in question which has taken place on 13.7.2002 The evidence of the eye-witness Shrikrishna, in our view, is completely free from contradictions or omissions and is consistent with the material particulars of the prosecution case. In our view, the direct evidence of Shrikrishna Vanmane (P.W.6) is reliable and trustworthy. 14. It is no doubt true that Vitabai Kodwan (P.W.5), the mother of the appellant though examined by the prosecution as an eye-witness to the incident, did not support the prosecution, however, admitted in cross- 15 APEAL119.2004 examination by the Public Prosecutor that she informed the incident to Shrikrishna Vanmane (P.W.6). She has also admitted in her cross- examination that Shrikrishna (P.W.6) went to Lamboti and went back to the wasti. These two admissions given by Vitabai in the cross- examination conducted by the Public Prospector are consistent with the prosecution case unfolded by Shrikrishna (P.W.6) in his testimony. Shrikrishna came to know about the incident only through Vitabai (P.W.5) and, thereafter, went to Abhiman and, thereafter, to wasti of the appellant and asked the appellant why was he beating his wife. In the instant case, we cannot ignore the fact that Vitabai is the mother of the appellant and, therefore, it is but natural for her to realise at later point of time not to support the prosecution case stated by her in her police statement before the Court in order to save the appellant, who is her own son. At the same time, the above referred two admissions in the cross-examination conducted by the Public Prosecutor are consistent with the prosecution case disclosed by Shrikrishna (P.W.6). 15. It is well-settled that it is the quality, nature and fibre of the evidence which is important and not the quantity. The testimony of the sole eye-witness if it is reliable, trustworthy and consistent with the material particulars of the prosecution case and is corroborated by other 16 APEAL119.2004 evidence is sufficient to bring home the guilt of the appellant for the offence charged. In the instant case, we have already observed that the testimony of Shrikrishna (P.W.6) is reliable and trustworthy and, therefore, it is necessary for us to consider whither the same is corroborated by other evidence adduced by the prosecution. 16. Dr.Shravati Tembare (P.W.1) has conducted the postmortem examination on the dead-body of the deceased and found the following injuries which are mentioned against column 17 of the postmortem notes. Those are as follows:- “(1) Contusion on dorsal aspect of thing right laternal region side 8 x 8 x 6 cm. (2) Contusion on dorsal aspect of thigh right medial side 8 x 4 cm. And 8 x 10 cm. (3) Abrasion dorsal aspect of right thigh 6 x 1 cm. (4) Contusion on back of right side scapular region 6 x . cm. (5) Contusion on right maxilla with black eye right side eyes right side 4 x 5. (6) Contusion on left maxilla with black eye on left side 4 x 4 cm. 17 APEAL119.2004 (7) Abrasion left shoulder 4 x 1 cm. (8) Contusion left side of forehead 6 x 2 cm. (10) Contusion on right temporal region 3 x 2 cm. (11) Multiple bruises on both sides of neck 2 x 1.5 cm. Size. (12) Contusion on left pectoral region 6 x 7 cm.” The Doctor has opined that all those injuries were ante-mortem injuries and those injuries were caused eight to twelve hours prior to the post- mortem examination. 17. The Medical Officer has noticed the following internal injuries. Those are as follows:- “(1) Underscalp Haematoma present. (i) Parietal region 6c4 cm. (ii) Let. Parietal region 5 x 4 cm. (iii) Frontal region Lt. side 6 x 4 cm. There is no evidence of fracture skull bone. (3) Following injuries on brain. Evidence of subdural haematoma 6 x 4 cm. right temporal side. 18 APEAL119.2004 2) Evidence of subaracchoid haemorrhage Rt. Parietal side 4 x 6 inch. 3) Evidence of subarachuid haemorrhage lt. parietal region 4 x 5 cm. 4) Evidence of haematoma in fourth ventricle 2 x 2 cm. (4) Following injuries found on Thorax:- 1) Contusion left special region 6 x 7 inch. 2) Sub cut and intramuscular haematoma lt. pectoral region 4 x 6 and 3 x 4 cm. Multiple brusie on both side of neck 1.5x2 cm. (2) Sub cut echymosis both side of neck. (3) Evidence fracture hyoid bone fracture. Lungs congested. There was semi digested food material found.” Th Doctor has opined that the probable cause of death was head injury with throttling. The Doctor has further opined that the injuries mentioned in column no.17, particularly injury nos.(1) to (10) and (12) were possible by hard and blunt object like stick and injury no.(11) mentioned in column 17 along with internal injuries mentioned in paragraph 20 are possible by throttling. The defence has conducted a very cryptic cross- 19 APEAL119.2004 examination of Dr.Shravati Tembare which does not affect the ocular testimony of the Medical Officer. Number of injuries sustained by the deceased mentioned in the post-mortem report clearly show that the deceased was mercilessly beaten. The medical evidence completely corroborates the testimony of Shrikrishna (P.W.6). 18. The deceased Vanita was married to the appellant only four moths prior to the incident and at the relevant time was residing with the appellant. The subsequent conduct of the appellant assumes importance in the instant case. Sidhram (P.W.2) in his testimony has stated that the appellant was trying to run away form the spot of the incident and was caught and detained by him on the spot. He was arrested by the police and was taken away by the police from the spot of the incident. Similarly, in the First Information Report, the complainant Sidhram has stated that when he reached the spot of the incident, he saw the appellant and his mother sprinkling water on the head and face of Vanita. All these circumstances clearly establish the presence of the appellant on the spot at the time of the incident coupled with the direct evidence of Shrikrishna (P.W.6), the medical evidence as well as considering the other attendant circumstances brought on record by the prosecution, in our view, the prosecution has succeeded in bringing home the guilt of the appellant for 20 APEAL119.2004 the offence of murder. 19. It is no doubt true that there are certain minor inconsistencies in the testimony of the prosecution witnesses pertaining to inquest panchanama, spot panchanama, time of post-mortem examination as well as lodging of First Information Report. However, we cannot lose sight of the fact that the witnesses examined by the prosecution are rustic villagers coming from a completely different background. It is necessary to keep in mind that their perception about time and place cannot be compared with the people coming from urban background and, therefore, though there are some inconsistencies in the testimony of the prosecution witnesses, however, considering the psychic of rustic people coming from village background, it does not assume much importance and, therefore, the contention canvassed by the counsel for the appellant that the prosecution evidence has been rendered doubtful because of all these aspects, in our view, cannot be accepted, particularly when the direct evidence is reliable and trustworthy and is also corroborated by the