1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.535 OF 2005 1. Siddhappa Andappa Andolgi, Aged 31 years, Occu. Agriculture. 2. Basavraj Siddhappa Andolgi, Aged 35 years, Occ. Agriculture. Both above residing at and post Galorgi, Taluka Akkalkot, Dist. Solapur. At present in Solapur District Prison. ...Appellants. (Ori.Accd.1&2) Vs. The State of Maharashtra. ...Respondent. .... Shri Girish R. Agrawal for the Appellants. Smt. M.M. Deshmukh, APP for the Respondent. ..... CORAM : SMT.RANJANA DESAI & DR.D.Y.CHANDRACHUD, JJ. August 28, 2008. 2 JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) : Vithal and Bhimsha were brothers. Both had agricultural holdings in the village of Galorgi in the Taluka of Akkalkot in the District of Solapur. Vithal had two sons, Kashinath and Vishwanath. Kashinath has a son by the name of Shivlingappa. Bhimsha died and was survived by his wife Sugalabai. The accused resided in a portion of the Wada in which Sugalabai also resided. The accused were related to the complainant. The relations between the two sides were strained on account of certain disputes arising out of the agricultural holding. The case of the prosecution is that Shivlingappa (P.W. 6), who was about 13 years old, used to accompany his grandfather Vithal to the agricultural field where they stayed during the night. On 17th August 2003, Vishwanath, PW 7, went to serve a tiffin of food to Suglabai between 9 and 9.30 p.m. when Appellant No.1, Sidhappa abused him. At 9 p.m. on the same day Shivlingappa, PW 6, went to the field together with his grandfather – the victim, Vithal, for resting 3 for the night. The two Appellants together with four others, namely, Maruti, Revansiddha, Mallappa and Shavarappa approached the area where PW 6 was sleeping in close proximity to his grandfather. PW 6 was awakened and saw the two Appellants strangulating his grandfather, Vithal, on the throat and neck. Thereafter, Appellant No.2 threw a stone below the umbilical region on the person of the victim to see whether he had died. Apart from the two Appellants, four other accused, according to PW 6, Accused Nos.3 to 6, stood by. Thereupon, PW 6 ran home and narrated the incident to his parents and to the other members of the family. Kashinath (PW 9), Vishwanath (PW 7), and the members of the family went to the site and found that their father, Vithal, was dead and that blood had oozed out from his mouth, nostrils and ears. Kashinath lodged an FIR at the Police Station at Akkalkot the next morning and an offence was registered against the accused. 2. Six accused were committed to trial and charged with offences under Sections 143 and 147 and Section 302 read with 4 Section 149 of the Indian Penal Code. The Additional Sessions Judge at Solapur, by a judgment dated 12th May 2005, convicted the Appellants for offences under Section 302 read with Section 34 of the Penal Code and sentenced them to imprisonment for life and to pay a fine of Rs.3,000/- each. The other four accused were acquitted. All the accused were acquitted of offences under Sections 143 and 147 of the Penal Code. 3. In assailing the correctness of the judgment of the Additional Sessions Judge, convicting the Appellants, it has been urged on behalf of the Appellants that (i) From the evidence of PW 7 and of PW 9, it is evident that there was previous enmity between the family of the complainant on the one hand, and the accused on the other, and there were two factions in the village; (ii) The Learned Trial Judge has recorded a finding of fact that since the entire land of Bhimsha had been sold, there was no motive for the accused to commit a crime; (iii) PW 6, Shivlingappa, who was the sole eye witness, was a child, aged about 12 years and his testimony would 5 have to be evaluated with the greatest circumspection. The testimony of the child witness in the present case would have to be discarded because there were omissions at two places and he had deposed falsely to the effect that he was unaware of Marathi; (iv) The FIR was not on the record and there was a breach of the obligation arising out of Section 157 of the Code of Criminal Procedure, 1973 to transmit the FIR forthwith to the Magistrate; (v) The testimony of the child witness is inherently improbable because though the agricultural field was in close proximity to the family house, no person had reported hearing any commotion arising out of the incident; (vi) The other accused who were implicated by the child witness came to be acquitted; no role having been ascribed to them; and (vii) The judgment of the Additional Sessions Judge must be set aside inasmuch as no charge was framed under Section 34 of the Penal Code. 4. On the other hand, it has been urged by the Learned APP that in the present case, there were disputes between the two 6 factions over their agricultural holdings. The evidence of the child witness, P.W. 6, has it was urged, justifiably been believed by the Additional Sessions Judge, since he was a natural witness whose presence at the scene of offence was established. The child witness was not tutored and the Learned Trial Judge, therefore, was not in error in relying upon the testimony of the witness. The medical evidence shows that the death of the victim occurred due to asphyxia. The post mortem notes indicate an injury in the inguinal region which corroborates the evidence of the child witness that a stone was thrown below the umbilical region to confirm that the victim had died. In so far as the other accused were concerned, it was not the finding of the Learned Additional Sessions Judge that the evidence was fabricated. The other four accused were acquitted since the role which was played by them was not clearly spelt out in the FIR or deposed to by the eye witness. 5. The evidence on the record indicates the existence of enmity between the family represented by the Complainant (PW 9) on 7 the one hand, and the accused on the other. PW 7 Vishwanath, the son of the deceased, deposed to the fact that relations between him and his brother Kashinath, on the one hand, and the accused on the other, were not cordial on account of a dispute relating to the house and the agricultural land of Bhimsha. Vishwanath (PW 7) and Kashinath (PW 9) were maintaining Sugalabai, the widow of Bhimsha who was their deceased uncle. All the accused resided in the same house as Sugalabai. The grandfather of the accused and the grandfather of PW 7 and PW 9 respectively were brothers. PW 9 also deposed to the fact that there was a dispute between the two sides on account of the agricultural field of Bhimsha. PW 9 stated in the course of his cross-examination that the accused were not allowing his father, Vithal, to enter upon a portion of the land and a dispute was going on for nearly ten to fifteen years. To the same effect was the testimony of Sidharam, PW 11. The existence of enmity between the two factions has not been disputed before this Court, during the course of the rival submissions, as it cannot be, in the face of the evidence on the record. 8 6. Now, it is trite law that enmity is a double edged weapon. The existence of a motive on the part of the accused may be a reason for committing the crime. Yet, the Court has to be cognizant of the fact that this may in a given case lead to false implication. 1 Consequently, suspicion against an accused on the basis of a motive to commit a crime cannot by itself lead to a judgment of conviction. (Ramesh Baburao Devaskar vs. State of Maharashtra.2 ). A clear proof of motive for the crime lends additional support to the finding of the Court that the accused were guilty. However, the absence of a clear proof of motive does not necessarily lead to a contrary conclusion. Where the prosecution has failed to lead evidence of a clear motive, the other evidence bearing on the guilt of the accused has to be closely examined. (Atley v. State of U.P.3). Even where the prosecution fails to establish a motive for the crime, that does not mean that the entire case of the prosecution has to be thrown over board, but it only casts a duty on the Court to scrutinise the other 1 Ramesh Baburao Devaskar v. State of Maharashtra, 2008(1) Bom. C.R. (Cri.) 272 (SC) 2 2008(1) Bom. C.R. (Cri.) 272 at para 22 3 AIR 1955 SC 807 9 evidence, particularly of the eye witnesses with greater caution. (Nachittar Singh v. The State of Punjab.4 ). Where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. (Gurucharan Singh vs. State of Punjab5 and N.N. Naik vs. State of Maharashtra)6. 7. It is in the background of these settled principles that the evidence would have to be evaluated. Shivlingappa was about 12 years old on the date of the incident. During the course of the evidence, the Learned Trial Judge observed that from the preliminary questions which have been posed to the witness, it transpired that the child witness had the capacity to understand things and their consequences. The Learned Judge observed that the child witness understood the sanctity of speaking the truth. Shivlingappa stated during the course of his examination that his father Kashinath and uncle Vishwanath possessed agricultural land at village Galorgi and that they owned cattle and agricultural equipment. The cattle were 4 AIR 1975 SC 118 5 AIR 1956 SC 460 6 AIR 1971 SC 1656 10 tethered in the cattle shed. He deposed that he stayed in the agricultural field together with his grandfather, Vithal, during the hours of the night and that electricity was supplied to the field. On 17th August 2003 he was sleeping besides his grandfather, having gone to the field at about 9 p.m. A bed was laid out on the iron plates belonging to the Irrigation Department. The electric lights were on when they went to sleep. The witness stated that he had given fodder to the cattle in the course of the night and was thereafter resting on the bed. The witness heard a dog bark and turned his attention to the direction of the noise. He saw the Appellants together with four other accused in the light of the electric bulb. All the accused, he deposed, were related to him. The Accused came to the place where his grandfather was sleeping. Accused Maruti and Shavarappa placed a bed-sheet on him. The two Appellants pressed the throat, neck and mouth of his grandfather, Vithal. The Second Appellant, Basavraj, threw a stone on the person of his grandfather to see whether he had died. PW 6 stated that he witnessed the incident after lifting the bed-sheet from his face. He stated that the Second 11 Appellant had thrown the stone below the umbilical portion of his grandfather though he was unable to state as to whether the muddemal property was the same stone. 8. Counsel appearing on behalf of the Appellants urged that the testimony of the child witness could not be believed since he had incorrectly stated that he could not speak in Marathi. Now, the cross- examination of the witness would disclose that PW 6 stated that his medium of instruction was Marathi upto the seventh standard in School. The witness stated that he cannot understand the Marathi language fluently. To a question as to whether he “cannot speak in Marathi”, the witness answered in the negative. The Learned Judge observed that the witness had given answers to the questions put by the prosecution in Marathi and one or two questions in cross- examination were also answered in Marathi. This part of the evidence cannot possibly lead to an inference that the witness was not a witness of truth. The witness stated that he had left the School about three or four years earlier. The witness had stated that his medium 12 of instruction was Marathi until the seventh standard but that he was not fluent in the language. The answer to the question as to whether the witness could speak in Marathi must be construed in the overall context in which it appears. The nature of the evidence and the answers which were furnished by the witness during the course of the cross-examination is indicative of the fact that PW 6 was a witness of truth. In so far as the Appellants are concerned, the witness identified the two accused who are related to him and stated that they had pressed the neck, the throat and the mouth of the victim. The presence of PW 6 at the scene of offence is not contrived or artificial. The witness has stated in the course of his Examination-in-Chief that he stayed at the field during the hours of the night with his grandfather. His uncle Vishwanath, PW 7 also stated that during the night time, PW 6 used to stay at the field in order to protect the cattle and the agricultural implements. PW 6 stated that his grandfather used to sleep in the field to ensure that the cattle did not trespass into the lands of the neighbours. 13 9. Reliance was placed in the submissions which have been urged on behalf of the Appellants on the omission in the statement by PW 6 to the Police on the role of the other four accused. In the course of the Examination-in-Chief PW 6 stated that when the Appellants were pressing the neck of his grandfather, the other accused were guarding the area. The witness was confronted with the omission in the statement made to the Police. The second omission in the statement made to the Police was in respect of the alleged placing by accused Maruti and Shavarappa of a bed-sheet on PW 6. Neither of these two omissions is, in our view, of such a nature as to lead to the testimony of the witness being discredited. The four other accused were given the benefit of the circumstance that neither in the FIR, nor in the deposition of PW 6 was any overt act attributed to those accused. In fact, the testimony of PW 6 would reveal that there is no fabrication on his part. No effort was made by PW 6 to conjure a false case against the four other accused by attributing to them a direct act of assault on the person or body of the victim. In so far as the allegation that the Second Appellant had thrown a stone on 14 the body of the deceased is concerned, it is material to note that the deposition of PW 6 was to the effect that the stone was thrown below the umbilical region of the deceased. On this aspect, the deposition of the Investigating Officer, S.R. Kale, PW 13, shows that PW 6 has stated before him that the Second Appellant threw a stone on the person of the deceased, but he had not stated that the stone was thrown to see whether or not the deceased was alive. The omission is only in regard to the reason why the stone was thrown. The post mortem notes reflect a contusion on the right inguinal region admeasuring 10 cm x 15 cm. The medical evidence is consistent with the nature of the assault as deposed to by PW 6. Death was stated to have occurred due to asphyxia as a result of throttling. 10. The law, as the Supreme Court observed in Pancchi v. State of U.P.,7 does not “irretrievably stigmatize” evidence of a child witness. The evidence of a child witness has to be evaluated carefully and with circumspection because a child may be susceptible 7 AIR 1998 SC 2726 15 of being swayed by what he was told by others and may be tutored by adults. As observed by the Supreme Court in Dattu Ramrao Sakhare vs. State of Maharashtra,8 : “A child witness if found competent to depose to the facts and reliable .. such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a whites be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record.” Where the evidence of a child witness shows that he has been tutored as in State of H.P. v. Dhani Ram,9 State of Bihar v. Kapil Singh,10 Chhagan Dame v. State of Gujarat,11 Arbind Singh vs. State of 8 (1977) 5 SCC 341 9 1997 Cri. L.J. 214 10 1969 Cri. L.J. 279 11 AIR 1994 SC 454 16 Bihar12 and C.P. Fernandes vs. Union Territory of Goa,13 it would be unsafe to enter a judgment of conviction on the basis of such evidence. On the other hand in Baby Kandayanathil vs. State of Kerala,14 the Supreme Court sustained a conviction under Section 302 in a situation where the two children of the deceased who were seven and eight years of age had figured as eye-witnesses. The Supreme Court noted that the Trial Judge had put preliminary questions to each of the witnesses and had proceeded to record their evidence after satisfying himself that they were answering questions intelligently and without fear. The Supreme Court observed that each of the witnesses had furnished all the details of the occurrence in the Examination-in-Chief and had withstood a searching cross- examination. The witnesses were regarded as being the most natural witnesses who had been present in the house during the night. In the present case, there is no material to indicate that the child witness was tutored. On the contrary, evaluating the evidence of the child witness with a great degree of circumspection, we have come to the 12 AIR 1994 SC 1068 13 AIR 1977 SC 135 14 AIR 1993 SC 2275 17 conclusion that the child witness in the present case was a witness of truth, his presence at the scene of offence was natural, his deposition in regard to the role played by the Appellants is clear and consistent and finds due corroboration in the medical evidence on record. 11. During the course of the submission, it was sought to be urged that no FIR was brought on the record. In a judgment of a Division Bench of this Court in Tulshiram Bhanudas Kambale vs. State of Maharashtra,15 it has been held that Section 157 of the Code of Criminal Procedure, 1973, casts an obligatory duty on the Police to forthwith send a copy of the FIR to the Magistrate and whenever the police fail to discharge this mandatory duty it is under a legal obligation to furnish the reasons. Before an inference is drawn that the FIR is antedated, some circumstances have to be shown either from the cross-examination of the relevant witnesses or from material appearing on record that would probabalise such an inference.16 In this regard, it would be material to note the deposition 15 2000 CRI. L.J. 1566 16To the same effect are the judgments of the Division Bench of the Delhi High 18 of the Investigating Officer, PW 13. PW 13 deposed that after the registration of the crime, a copy of the FIR was sent to the Judicial Magistrate, First Class, Akkalkot on the day on which the crime was registered. PW 13 stated that he has entered the filing of the FIR in the Station Diary and he denied the suggestion that he has prepared the FIR and the panchanama on a later date and mentioned an earlier date and time. As a matter of fact, during the hearing of the present appeal, the record was examined. The FIR is a part of the record. The FIR bears an endorsement of having been sent on 18th August 2003. The receipt by the Judicial Magistrate, First Class, Akkalkot is of 4th November 2003. There is no merit in the submission that there was a breach of the provisions of Section 157 of the Code of Criminal Procedure, 1973. 12. The next aspect which has to be considered is the legality of the conviction of the two Appellants under Section 302 of the Court in Mahabir Singh vs. State, 1979 CRI. L.J. 1159 and of a Division Bench of the M.P. High Court in Lodhi vs. State, 2004 CRI. L.J. 2001. 19 Penal Code with the aid of Section 34. In Jivanlal vs. State of M.P.,17 the Appellants along with others had been charged for committing murder and by sharing a common object with the aid of Section 149. The Supreme Court held that the conclusion of the High court that the three Appellants formed an unlawful assembly with some other unknown persons was based on no evidence as it was not the prosecution case that besides the thirteen named persons, there was any other unknown person who had shared a common object with the Appellants for committing murder of the victim. In the circumstances, the Supreme Court held that the High Court was not justified in convicting the Appellants under Section 148 and Section 302 read with Section 149. However, the Supreme Court held that the manner in which the incident took place clearly indicated that the Appellants had shared a common intention of committing the murder of the victim and they would, therefore, be liable with the aid of Section 34. The Supreme Court held that no prejudice was shown to have been resulting in not framing a distinct charge with the aid of 17 (1997) 9 SCC 119 20 Section 34: “No prejudice has been shown to have been caused to the appellants for not framing a distinct charge with aid of Section 34 IPC, as intention which is a question of fact has to be gathered from the evidence and the evidence on the record clearly establishes that the appellants did share the common intention of committing the murder of Mohan Lal. In Dhanna v. State of M.P., (1996) 10 SCC 79, Thomas, J. speaking for the Bench, while dealing with a similar aspect, after referring to a catena of authorities observed : (SCC pp. 82-83, paras 8 and 9) “Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand v. State of Punjab, (1955) 1 SCR 1201. But the doubt was cleared by a Constitution Bench of this Court in Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, where this Court observed at para 86, thus: “Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation,