[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH BENCH BENCH AT AURANGABAD. AT AURANGABAD. AT AURANGABAD. CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 103 OF 2001 APPEAL NO. 103 OF 2001 APPEAL NO. 103 OF 2001 Vijay Yaman Korde, No.C-3343, Nashik Road Central Prison, Nashik Road, Nashik. .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT ===== Shri M.K. Kocharekar, Advocate appointed for the appellant. Shri A.M.Shringarpure, APP for the respondent State. ===== CORAM CORAM CORAM : N.V.DABHOLKAR : N.V.DABHOLKAR : N.V.DABHOLKAR AND AND AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : 19TH JANUARY 2006 : 19TH JANUARY 2006 : 19TH JANUARY 2006 ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : (PER (PER (PER DABHOLKAR, J.) DABHOLKAR, J.) DABHOLKAR, J.) 1. The appeal under section 374 (2) of the Code of Criminal Procedure impugnes the judgment and order dated 23.2.2001 delivered by 3rd Additional Sessions Judge, Nasik in Sessions Case No. 2 of 2000. By the said judgment, the appellant / accused was held guilty for offence punishable under section 302 of the [2] Indian Penal Code and is sentenced rigorous imprisonment for life, fine Rs.1,000/- i/d rigorous imprisonment for three months. 2. Briefly prosecution story can be narrated as under : . The incident in question is said to have taken place on 5th September 1999 in the early dawn hours at about 5 or 5.30 a.m. The victim Shaila was wife of appellant / accused. The incident took place at Lendipura, Wani, Tq. Dindori, District Nasik. The accused is alleged to have committed murder of his wife by a single blow with an axe on her left side neck extending from front of left ear to beyond the margin of trapezium 12 to 13 cms. in length and oblique in direction. The injury had caused fracture of left mandible near angle, fracture of transverse process of middle three cervicals and fracture of body of middle cervical three vertibra of left side within the wound. The prosecution has tried to put up a story that this was because accused was suspecting character of deceased wife. He was also ill treating her on that count. 3. Prosecution has placed reliance on as [3] many as ten witnesses out of which PW 8, PW 9 and PW 10 are policemen. Police Constable Deoram Mahale (PW 8) is the carrier who had carried articles for analysis to Forensic Science Laboratory. A.P.I. Gautam Pawar (PW 9) was attached to Wani Police Station at the material time. He had recorded telephonic message about killing of Sau.Shaila. He had also recorded complaint of Bhausaheb (PW 4) (son of the deceased and the accused). He was instrumental to drawing panchanama of the spot, inquest, arrest of the accused and seizure of clothes upon the person of the accused. Thus, he has carried out part of the investigation. The investigation was concluded by Balasaheb Shekahar (PW 10), Dy.S.P., Niphad Division. . Poornima (PW 3) daughter of the accused and the victim is the star witness. She is examined as an eye witness. At the time of deposition recorded about one year and three months after the incident, she was in 1st standard and, therefore, it can be said that at the time of alleged incident, she was about five and half to six years of age. Bhausaheb Korde (PW 4) is her elder brother, aged about 15 years at the material time. It is his claim that he was woken up by Poornima (PW 3) and informed about killing of mother by their father. His [4] statement is registered as first information report (Exh.20). Shantaram Korde (PW 6) is real brother of the accused and also his neighbour. He is an important witness. He has provided previous history of the relationship between the couple (victim and the accused) and thus, motive for the offence. He claims to have reached the location upon hearing the shouts of the children. He was the person who first gave telephonic intimation to the police station. It may be stated here itself that the accused and this witness are not only true brothers but they are husbands of true sisters. Deceased Shaila is true sister of wife of Shantaram. Thus, Shantaram and his wife are related to PW 3 and PW 4 from maternal as well as paternal side. Bhaurao (PW 7) is father of the deceased and he speaks about history of relationship between the accused and deceased, prior to the incident. . Sudhakar Pithe (PW 2) is a panch witness. Spot panchanama (Exh.13), panchanama regarding arrest of the accused and seizure of his clothes (Exh.14) so also memorandum of the statement of accused and discovery of weapon axe at the instance of the accused (Exhs. 15 and 16), all events were witnessed by him. Remaining two witnesses are comparatively of insignificant importance. [5] Dr. Rohidas Vyavahare (PW 5) had performed post mortem on the dead body and had also clinically examined the accused. As a result of autopsy, he has opined that death of Shaila was caused by shock due to haemorrhage and trauma of cervical spines and cervical cord. He has not noticed any injury upon the person of the accused and he found accused to be physically and mentally a sound person. Defence not having seriously challenged the nature of the death to be homicidal, the medical evidence has remained to be comparatively of lesser importance. Panch witness Pandurang (PW 1) has attended the panchanama under which frock of child witness Poornima produced by her uncle Shantaram, was seized. Neither panchanama (Exh.11) refers to existence of any blood stains on the said frock nor the said frock seems to have been forwarded to forensic science laboratory for analysis. The evidence of this panch witness has, therefore, become irrelevant. 4. The accused has raised a bold defence at least in his statement under section 313 of the Code of Criminal Procedure, 1973. Although no defence evidence is led in order to establish "alibi", impliedly accused has claimed alibi by pleading his absence at the residence (place of occurrence) at the material time. [6] He has admitted deposition of son Bhausaheb to be correct to the effect that on 4th September 1999, he had approached the shop owner where Bhausaheb was serving and requested for cash Rs.100/- and had accordingly collected the same at about 5 p.m. He admits that he was not present in the house when Shantaram visited. All other details from the prosecution evidence are denied by him. . In the concluding part of his statement, he has narrated that a piece of land admeasuring 5 acres stands in his name and brother Shantaram desired that it should be mutated in his (Shantaram’s) name. For the purpose, Shantaram used to beat him and now he is deposing against the appellant. He also added that he had gone for Darshan of Goddess at 5 p.m. (presumably of 4th September 1999) and returned on the next day at 10 a.m. He noticed a crowd in front of his house and when he proceeded to police station, he was arrested at the police station. Thus, impliedly accused pleads alibi. 5. On reference to impugned judgment, it can be seen that for the reasons discussed in paragraph 10 by referring to nature of injury, as described by the autopsy surgeon, the learned Judge arrived at a [7] conclusion that the death was homicidal. Instead of beginning with the evidence of eye witness Poornima, learned Judge first considered the evidence of complainant Bhausaheb and that of Shantaram in paragraphs 14 to 17 of the judgment. Finding their evidence to be reliable, the learned Judge concluded that by their evidence prosecution has proved : (i) Presence of the accused on the night of incident at the residence; (ii) His absence from the house on the next day morning; (iii) House was bolted from outside (while children and dead body were inside). . The learned Judge felt that evidence of these two witnesses was strengthened by immediate reporting to the police. The learned Judge also found evidence of Bhaurao Jadhav (PW 7) - father of the deceased, to be reliable and thus strengthening the prosecution case on the point of motive. So far as child witness Poornima is concerned, after discussing her evidence in paragraphs 19 to 23, the learned Judge concluded [8] assessment of her evidence thus :- "..........., it will be somewhat hazardous and risky to place implicit reliance on her testimony." "Therefore, her testimony can be used only as additional piece of evidence to support the prosecution case. Even otherwise, if her evidence is discarded from altogether and is not taken into consideration at all, in that case also, there are some other circumstances and the direct testimonies of the witnesses discussed above, which can not be ignored and which clinch the guilt of the accused." . Thus, according to learned Judge, even without taking into consideration the eye witness account as given by Poornima, the prosecution has established guilt against the accused. For the purpose, the learned Judge has felt that mute circumstances have spoken loudly about the guilt of the accused and in the list of these mute circumstances of learned Judge are, discovery of the weapon at the instance of accused, C.A. report showing that blade was stained with human blood of group [9] "B" (incidently both accused and victim are individuals with blood group "B" but accused has suffered no injury), clothes of accused stained with blood attempted to be washed, door of the house bolted from outside when witness Shantaram arrived and the motive. The learned Judge, therefore, felt that the guilt is proved beyond reasonable doubt. 6. Heard Advocate Shri Kocharekar for the appellant and APP Shri Shringarpure for the respondent State. . After having taken us through the entire prosecution evidence and even the "reasons" part of the judgment, learned counsel for the appellant has challenged the impugned judgment as under. The evidence of child witness Poornima is tutored evidence and hence is required to be discarded. The prosecution has failed to prove the motive because complainant son Bhausaheb does not speak anything about past conduct of the father towards mother on suspicion against her character. The claim of the prosecution regarding discovery of weapon at the instance of information given by the accused as under section 27 of the Evidence Act, has lost its weight in its totality by admission of panch witness [10] Sudhakar (PW 2) to the effect : "....... at the time of spot panchanama, the axe was found in the house. It is the same axe before the Court." . According to him, the Trial Court has accepted the evidence in all the panchanamas without properly appreciating the veracity of panch witness Sudhakar. As the last argument, he has pointed out that theory of absence pleaded by the accused is probablised by prosecution evidence itself. Son Bhausaheb has deposed the father having approached his master for lending Rs.100/- and the amount was required for going to Darshan of Goddess. Daughter Poornima has admitted that father had gone for Devi Darshan on the earlier day and accused has maintained the theory even in the statement under section 313 of the Code of Criminal Procedure. Advocate Shri Kocharekar, therefore, claimed that the prosecution has failed to prove the guilt beyond all reasonable doubts and it has at least failed to travel the long distance between "May be true" and "Must be true". The learned APP, during the course of his arguments, has supported the reasons recorded by the Trial Court and urged not to disturb the impugned [11] judgment and order. 7. Having gone through the impugned judgment, we have not been able to avoid feeling that the learned Trial Judge has not undertaken an exercise of balancing the evidence. The circumstances which apparently support the defence are also required to be taken into consideration together with effect of those on the circumstances and evidence apparently favourable to the prosecution. In doing such balancing, Court is expected to subtract / deduct from the circumstances proved on the basis of material favourable to the prosecution, to the extent circumstances favourable to defence cause adverse effect on the prosecution merits and demand such deduction from credibility of the prosecution story. . As can be seen from the judgment, direct evidence of Poornima, discovery at the instance of the accused, proof of motive and then evidence of prosecution witnesses Bhausaheb (PW 4) and Shantaram (PW 6) asserting the presence of accused on the fateful night at his residence, are the trump cards in the kitty of the prosecution. Learned counsel for the appellant has tried to assail each of those. [12] Eye Eye Eye witness - child witness : witness - child witness : witness - child witness : 8. Let us consider the eye witness account of the incident given by Poornima (PW 3). No doubt, she is daughter of the accused as also daughter of the victim. Ordinarily, one is tempted to question as to why a child should be inclined to depose against the father, even after the mother is lost. At the same time, caution issued by Hon’ble the Apex Court while assessing the evidence of child witness time and again in various judicial pronouncements, can not be ignored and here in this case, we have a child witness who admits to having been tutored by uncle Shantaram and his wife. Poornima, during recording of her evidence, was not able to tell the name of father and surname. She was studying in first standard when her evidence was recorded in December 2000. She can be presumed to be running 7th year of age at that time. The incident occurred on 5th September 1999 about a year and a quarter prior to recording of evidence and she must be then running 6th year of age. As can be seen from medical evidence, deceased Shaila was slain to death by a single blow with a sharp weapon. It is not the case [13] where there was a long verbal exchange or struggle during killing of the victim. In fact, nobody knows exact time as to when the blow might have been dealt. We have failed to find any basis to arrive at a conclusion that incident precisely occurred between 5.00 to 5.30 a.m., as stated in the charge framed at Exh.3. The moot question that is required to be answered is whether a child aged about five and half years would wake up at odd night hours in such a fact situation? Would she be witnessing the isolated blow? If natural course of human conduct is the yardstick, the answer should be in the negative. . During her chief examination, Poornima claimed that quarrel took place between her mother and father. If a quarrel had taken place, there would have been some signs of resistance. On reference to panchanama (Exh.14), the same makes no reference to any injury on the person of the accused and if there was quarrel, there was no reason why Bhausaheb (PW 4), who was comparatively of matured age (15 years), could not have woken up if child of five and half years did wake up. Bhausaheb was sleeping just beyond a door frame and in the adjacent room. On reference to spot panchanama (Exh.13) it is evident that victim was lying in the bed. [14] If there was a quarrel, it ought to have been followed by violence, struggle and in that case, there could have been even attempt to avoid the blow. Taking into consideration the depth and length of the injury, no such things can possibly be inferred to have occurred. We must say that there are details in the record to look to the statement of Poornima that a quarrel had taken place between her parents, with doubts. . Following questions-answers recorded in her cross examination may be usefully reproduced : "Q. Whether quarrel between your father and mother took place loudly? A. Yes. Q. Your Nana (PW 6) told that your mother was killed by your father Dada? A. Yes. Q. Your maternal aunt and Nana told you today to state in the Court that Dada has killed your mother? A. Yes. Q. Whatever was told to you by your maternal aunt and Nana, you have stated in the Court? A. Yes." [15] . It is quite evident that the child is constantly under tutoring. Once the tutoring is so obvious, the only course available to the Court was to reject evidence of Poornima as an eye witness. The learned Trial Judge followed somewhat queer course. After discussing the reliability of evidence of Bhausaheb (PW 4) and Shantaram (PW 6), the learned Judge has observed that evidence of Poornima, although risky for op acceptance, can be believed by virtue of support by the evidence of PW 4 and PW 6. We are unable to appreciate, much less concur with such a course of assessment of child witness. The evidence of Poornima could not have been accepted even as a supporting piece of evidence if other circumstances pointed a finger of suspicion towards accused. The concluding part of paragraph 23 (reproduced earlier) would rather be more correct approach. The learned Trial Judge has concluded paragraph 23 by observing that even if evidence of Poornima is discarded, other circumstances prove the guilt. After so many admissions, as reproduced hereinabove, that was the only course open to examine whether remaining evidence on record proves the guilt beyond reasonable doubt. After deduction of eye witness [16] account, as given by Poornima, as unreliable piece of evidence; the case mellows down to a case based on circumstantial evidence. . We may state here itself that rejection of Poornima’s claim to be eye witness has also adverse effect and requires further deduction from the merits of the prosecution case. It is the claim of Bhausaheb (PW 4) that in the morning, he was woken up by Poornima and she told him that "Dada has killed Akka". Finding this deposition of Bhausaheb to be reliable, the Trial Court appears to be believing Poornima to be eye witness. We are of the converse view. If Poornima is not worthy to be of credence as an eye witness because she is constantly tutored, even the deposition of Bhausaheb of Poornima having informed him regarding killing of mother by the father, is required to be doubted. . We may refer to some more admissions during the course of cross examination, although we may discuss their merit later. Suffice it to say at present that these admissions lend support to claim of the accused that he was not at home. Having elected to take the risk of putting Poornima in the witness box, prosecution can not abort the admissions obtained by the defence [17] during her cross examination : Q. On the night when your mother died, your Dada had gone to Devi? A. Yes. Q. Your Dada came on the next day in the morning? A. Yes. He came when there was siren. Akka served him food, which he threw on her face." . Merely because Poornima denied the suggestion that father has not killed the mother, learned Trial Judge was convinced that she could be an eye witness. Bare denial of a suggestion can not outweigh the two sets of admissions reproduced hereinabove. Discovery Discovery Discovery under section 27 of the Indian Evidence Act : under section 27 of the Indian Evidence Act : under section 27 of the Indian Evidence Act : 9. So far as evidence regarding discovery of weapon is concerned, prosecution has tried to bring it on record through deposition of panch witness Sudhakar Pithe (PW 2) and Investigating Officer Balasaheb (PW 10). In fact, prosecution has utilised [18] services of Sudhakar as multi purpose panch. He was witness to spot panchanama (Exh.13) that was drawn on 5.9.1999 between 9.15 a.m. to 10.00 a.m., arrest of the accused and seizure of his clothes between 15.35 hours to 15.55 hours on the same day and also memorandum and discovery panchanama (Exhs. 15 and 16), which events took place on 7th September 1999 between 17.30 to 17.40 hours and 17.50 to 18.30 hours. The learned Trial Judge has nowhere analysed the reliability of this panch witness Sudhakar. However, Sudhakar has admitted thus during his cross examination : "At the time of spot panchanama, the axe was found in the house. It is the same axe before the Court." . If this admission of Sudhakar is taken into account, it takes away entire credit of the prosecution which claims discovery of blood stained axe at the instance of information given by the accused. Eventually, report of forensic science laboratory (Exh.40) shows that the blade of the axe was stained with human blood of group "B" (which is blood group of victim as well as accused). The evidence of discovery under section 27 of the Evidence Act together with [19] report of the analysis, certainly enables the prosecution to claim that it has proved the weapon discovered at the instance of the accused, to be the weapon used in the offence and that accused knew the location where the weapon was concealed after commission of offence. As per panchanama (Exh.16), the axe was given out by the accused from the room where waste material was stored and it was hidden in a heap of woods. If admission of Sudhakar quoted above is taken into consideration, this claim of the prosecution stands totally falsified and consequently that makes the prosecution lose the credit which could have been claimed as a cumulative effect of discovery panchanama and report of the laboratory. If the admission of Sudhakar Pithe is considered as acceptable, it will have to be inferred that the culprit dropped the weapon at the location and ran away. . Regarding credibility of the panch witness Sudhakar, we may refer to his evidence in comparison with the panchanamas which he claims to have witnessed and, therefore, signed. He has admitted in his cross examination that at the time of all three panchanamas, the same police officer was with him. On reference to depositions of A.P.I. Pawar (PW 9) and Dy.S.P. [20] Balasaheb (PW 10), it is evident that spot panchanama, inquest and arrest panchanama of the accused were drawn by Shri Pawar whereas Balasaheb (PW 10) was the Investigating Officer when the weapon is said to have been discovered at the instance of the accused. . Even by simple comparison of the timings of panchanamas and the answers about the same by panch Sudhakar, it can be said that Sudhakar does not know as to when which panchanama was drawn. According to answers in paragraph 6 of his evidence for the purpose of arrest of the accused and seizure of his clothes, he was at the police station upto 11.30 a.m. In fact Exh.14 is drawn between 15.35 to 15.55 hours. According to Sudhakar, discovery panchanama was on the next day and he had reached police station at about 9.30 a.m. By the time they reached the residence of the accused, it was about 11 to 11.30 a.m. On reference to Exhs.15 and 16, it is evident that memorandum was registered on 7th September 1999 and not on 6th September 1999 (next day) and the visit to the residence of accused, as per Exh.16, was between 17.50 to 18.30 hours. In the month of September, these are the hours nearing sunset and not morning hours of 11.00 a.m. We feel that the Trial Court ought to have addressed itself to the credibility [21] of this witness and if the Trial Court was not inclined to do so but was inclined to believe him, then his admission to the effect that the axe was found at the location, totally demolishes the claim of discovery at the instance of