1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.: 423 OF 2008 Tulshiram Kundlik Sawant Age 26 Years, occ. Agriculture, R/o Pimpalgaon Matha, Tq. Sangamner, District Ahmednagar. ..Appellant Versus The State of Maharashtra .. Respondent ... Shri R.K.Temkar, Advocate for the appellant and Shri N.N.Jadhav, APP for the respondent. *** Mr. R. K. Temkar, Advocate for the Appellant. Mr. N. N. Jadhav, A.P.P. for the Respondent. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- RESERVED ON: 9th JUNE, 2010. PRONOUNCED ON: 22nd JUNE, 2010. JUDGMENT [Per Deshmukh, J.]: 1. The judgment and order of conviction of the appellant (accused) under section 302 of the Indian Penal Code ("IPC") by the learned Additional Sessions Judge, Sangamner, District Ahmednagar, dated 18th July, 2007 in Sessions 2 Case No.32 of 2006, thereby sentencing the accused to suffer rigorous imprisonment for life and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for three months, is the subject matter of present appeal, filed by the appellant - State. 2. The factual matrix of the prosecution case are ; (A) Accused and complainant Ramdas reside at Pimpalgaon Matha, Tq. Sangamner, District Ahmednagar. Wife of accused - Anita - and complainant are real sisters. Deceased - Bhaurao @ Bhaushaeb - was cousin of Anita. (B) Quarrel between Anita and accused took place prior to one month of the incident since Anita wanted to visit a fair and accused was not allowing her to do so. Accused assaulted Anita on that count. Since then Anita was residing at her parents' house at Pimpalgaon Matha along with her mother - Manda, at the distance of about 50 feet from the house of deceased. Accused was grazing goats along with father of Anita - namely; Shankar at village Nanduri. (C) Shankar - father of Anita came to know, while he was at Nanduri, that ornaments of 3 Anita were stolen away. Shankar, therefore, returned to Pimpalgaon and started residing with Anita and sent Manda (his wife) to Nanduri to look after the grazing goats. (D) Six days after the alleged theft, the stolen ornaments and one chit were found near the house of Manda. Anita's father called meeting of the villagers and in the said meeting, Ramdas Sawant, Ramnath Pande, Tukaram Shinde and deceased Bhaurao, accused etc. were present. Father of Anita told in the said meeting that unless the thief of ornaments is found, he will not send Anita to her matrimonial house Deceased Bhaurao took side of Anita in the said meeting and said that he would see how the ornaments are being stolen. Accused got annoyed therefor. Accused, allegedly, threatened to kill one by one. (E) On 8th May, 2006 after attending the labour work in his field returned to the village at about 06.00 p.m. Deceased Bhaurao met him. Complainant, after dinner, went to the house of deceased, they chit chat for some time and complainant went for sleep in the courtyard of deceased. Deceased went for drawing Mehandi at 4 the insistence of Aswhin and Mangal, relatives of complainant. Deceased returned back at 01.30 a.m. and slept by the side of the complainant. (F) Early morning, complainant heard shouts of deceased Bhaurao. Complainant wake up and saw the accused, wearing black pant and a baniyan, hitting an axe on the head of Bhaurao. Thereafter, accused ran away from the spot of incident. Since deceased embraced the complainant, he could not chase accused. Ramdas Bhima - brother of deceased, however, saw the accused running away from the spot. All the person from the house gathered. (G) A tempo of Kailas Lingayat was brought and injured was taken to Tambe Hospital, Sangamner. At about 6.45 a.m. of the same day, complainant lodged a report at Taluka Police Station, Sangamner. It came to be registered as Cr.No. I-147/2007 under section 307 of IPC, which after death of Bhaurao, came to converted into section 302 of IPC. (H) Investigating Officer - Athawale, Police Inspector went to the hospital of Dr.Tambe. Bhaurao was alive but was in a critical condition. He was unable to talk. 5 Investigating Officer proceeded to the spot of incident. Spot Panchanama was prepared and blood stained earth, simple earth and a torch were seized from the spot. By the time Investigating Officer returned to hospital, Bhaurao had expired. He, therefore, prepared inquest Panchanama in the Cottage Hospital and sent the dead body for post mortem report. Under a Panchanama, clothes of deceased were also seized. Investigating Officer again visited village Pimalgaon Matha, enquired with the witnesses, seized the chit produced by Anita under a Panchanama and recorded statements of the witnesses. (I) Medical Officer, who performed autopsy, opined that the death was due to head injury. (J) The accused was absconding till 18th May, 2006 i.e. the day of his arrest. After arrest, under a Panchanama, pant and Baniyan on the person of the accused were seized. At the instance of accused, during the course of the investigation, incriminating article - an axe - was recovered under a discovery Panchanama on 24th May, 2006, in the presence of the Panchas, 6 which was concealed in the field near the Bandh behind his house at Pimpalgaon Matha. Incriminating article was sent to Chemical Analyser. (K) After completing investigation, the Investigating Officer submitted charge sheet against the accused for the offence punishable under Section 302 of IPC in the court of learned II Jt. Judicial Magistrate (First Class), Sangamner, District Ahmednagar, who in turn, committed the case to the Court of Sessions, Sangamner, District Ahmednagar. 3. To bring home the guilt, prosecution has examined in all fourteen witnesses. PW 1 is Bhausaheb Shinde, a Panchwitness to inquest Panchanama (Exhibit 12). PW 2 is complainant and eye witness Ramdas (Exhibit 15). PW 3 is Shankar, father in law of accused (Exhibit 19). PW 4 is child witness Ramnath, who is brother of deceased and an eye witness (Exhibit 21). PW 5 is Raosaheb, Panchof the spot Panchanama (Exhibit 22). PW 6 is Karbhari, a Panch of the seizure Panchanama of the clothes on the person of deceased (Exhibit 24). PW 7 is Baban, a Panchof the Panchanama of clothes on the person 7 of accused. He was, however, declared hostile by the prosecution and put to cross examination (Exhibit 27). PW 8 Bhimraj (Exhibit 27) and PW 9 Youraj (Exhibit 29), alleged are the Panchas of the disclosure statement and recovery of incriminating article - an axe - at the instance of the accused. They were declared hostile and put to cross examination by the prosecution PW 10 is Anita, wife of accused (Exhibit 31). PW 11 is Nivrutti, Circle Officer, who as per the instructions of Tahsildar, drew a map of the spot of incident. PW 12 is Dr. Sandip Kacheria (Exhibit 34), who performed autopsy on the dead body of deceased Bhaurao and prepared post mortem report - Exhibit 35. PW 13 is Suresh, a Panchof the Panchanama regarding seizure of the clothes on the person of accused (Exhibit 37). PW 14 is Ramesh Athawale, Investigating Officer (Exhibit 39). 4. Accused, in his defence, examined DW 1 Dr. Shaikh Gulam Rasul, Medical officer in Tambe Hospital, Sangamner (Exhibit 66). 5. The learned trial Judge, after taking into consideration the evidence adduced by prosecution so also defence and after hearing 8 arguments of respective counsel, as said earlier, convicted and sentenced the accused for the offence punishable under Section 302 of IPC. The appellant / accused aggrieved by the said decision has preferred the present appeal. 6. We have seen judgment of the trial Court. We have also seen the charge framed by the trial Court below Exhibit-4 on 16th November, 2006. The trial Court recorded denial of the charge by the Appellant. We have also seen the statement of the Appellant/ accused recorded under section 313 of the Criminal Procedure Code on 10th April, 2007. The trial Court, in para 9 of the judgment, has referred the evidence of Medical Officer Dr. Sandeep Kacheriya P.W.12 - Exhibit-34, postmortem report Exhibit-35 and Inquest Panchanama Exhibit-13. On appreciation of this material, at the end of para 9 of the judgment, trial Court recorded homicidal death of Bhaurao. Evidence of P.W.3 Shankar has been discussed by the trial Court in para 12. The trial Court, while appreciating the evidence of P.W.2 Ramdas, in parra 13 of the judgment, noticed that this witness was declared hostile, 9 learned A.P.P. was permitted to put cross questions, has also considered the cross examination carried on on behalf of the accused. We have seen para 13 of the judgment of the trial Court. In para 14 of the judgment, trial Court has discussed evidence of P.W.4 Ramnath, allegedly 13 years old at the time of occurrence. We have also seen para 16 and 17 of the judgment. It appears that the trial Court has believed the evidence of P.W.4 Ramnath, considering the evidence of postmortem report, column 17 and 19. In para 18, the trial Court has referred to seizure Panchanama of clothe of the accused Exhibit-38 and report of the Serologist. According to the trial Court, the blood grouping found on the cloth of the deceased and accused tallied with each other. Indisuputably, witnesses on discovery Panchanama, drawn under section 27 of the Indian Evidence Act, though turned hostile, the trial Court, considering the evidence of investigating officer, has accepted the said discovery of the weapon, attributed to the Appellant. The trial Court has also considered the judgment of the Gujarat High Court in the matter of "Vahaji 10 Ravaji Thakore V/s State of Gujrat" reported in 2004 Cri. L. J. 119. Thus, the trial Court has accepted chiefly the evidence of P.W.2 Ramdas and P.W.4 Ramnath alleged eye witnesses and with the evidence of Medical Officer, report of Serologist and discovery of weapon recorded conviction against the appellant for the offence punishable under section 302. 7. The case of the prosecution principally rests on the evidence of two alleged eye- witnesses i.e. P.W.2 Ramdas Kshirsagar and P.W.4 Ramnath Pande. Shankar Savleram Pande is father in law of appellant and P.W.2 Ramdas. Anita, wife of the Appellant, and Shashikala, wife of P.W.2 Ramdas, are real sisters. Shankar Pande, father in law of the Appellant and P.W.2 Ramdas is P.W.3 examined on behalf of the prosecution. Mr. Bhima Pande was having two sons i.e. deceased Bhaurao and Ramnath. Ramnath is P.W.4 in the case on hand. Shankar Pande and Bhima Pande are resident of same village Pimpalgaon Matha, Taluka Sangamner, district Ahmednagar. According to P.W.2, Anita, wife of the Appellant, was intending to go to her parents house for festival. That was the reason for 11 quarrel amongst deceased Bhaurao and Anita 8-10 days before the incident. Anita left the matrimonial home and went to her parents house in the same village. When she was residing with her parents, her ornaments were stolen by unknown person. 3-4 days after this theft, the ornaments were left with one small chit or letter near the house of parents of Anita, according to P.W.2 Ramdas. P.W.2 Ramdas claims that earlier day of the incident he attended his work in agricultural land, returned to his residence at 06.00 p.m., took dinner. Deceased Bhaurao visited his house. Along with deceased Bhaurao, P.W.2 Ramdas went to the house of Bhaurao. There, again, he was offered some food by the parents of deceased Bhaurao. P.W.2 Ramdas ate some food and sat chit chatting in the courtyard of house of deceased Bhaurao. According to this witness, Bhima Pande, deceased Bhaurao and Ramnath were there at the house of Bhima Pandit. In the night of the incident, Bhima Pande and P.W.4 Ramdas laid there beds on the platform (Ota) of Mandabai, wife of Shankar and mother in law of P.W.2 Ramdas. This witness has categorically stated that beds of Bhima 12 Pande and Ramnath were put on the platform of Mandabai. He has again stated, in para 3 of the evidence, that there is no platform (Ota) to the house of Mandabai and the bed was laid in the courtyard of her house i.e. courtyard of Mandabai's house. He further claims that himself, Bhaurao i.e. the deceased, wife of Bhima Pande, his sister in law and daughter of Bhima also put their beds in the courtyard of house of Mandabai. All of them slept there. On the next day, there was marriage of cousin sister of Bhaurao. Daughters of Bhima and Shankar viz. Savita and Mangal asked him to accompany them for drawing Mehendi, however, he refused. Same request was also made to deceased Bhaurao, who accepted and accompanied them. Remaining persons, according to this witness, slept there i.e. in the courtyard of house of Mandabai. He makes a categorical statement that Ramnath and his parents slept by the side of his leg. In para 4, this witness claims that, Bhaurao returned by 01.00 to 01.30 a.m. and slept by his side. According to this witness, he was woken up by Bhaurao. He was requested to make some financial assistance to him to 13 purchase articles for the marriage of daughter of his sister. According to this witness, he replied that the matter can be considered in the morning. He further states that while both of them were talking, Ramnath - P.W.4 and Bhima, father of deceased Bhaurao, were listening to them. Mother of Bhaurao was also present. According to this witness, these three persons i.e. Bhima, P.W.4 Ramnath and mother of deceased Bhaurao heard talk of P.W.2 Ramdas and deceased Bhaurao. Thereafer, all of them slept. This witness further claims that by 04.00 a.m. he heard shouts of Bhaurao. Next statement is very important. He states that "somebody assaulted him" [assaulted to deceased Bhaurao]. According to this witness, assault was on the head of Bhaurao and Bhaurao embraced him (P.W.2 Ramdas). He further claims that, there was bedlam. After hearing shouts of Bhaurao, this witnesshad woken up. According to this witness, he saw some person running away after assaulting Bhaurao. Said person was at the distance of 30 to 40 ft. from him. Said person was crossing drainage i.e. the land prepared to serve the purpose of gutter facilitating the flow of 14 water. According to this witness, he could not identify the person who was running away. P.W.2 Ramdas further states that, when Bhaurao raised shouts, Ramnath (P.W.4) also woke up and Ramnath disclosed him that the person who was running away was the accused Tulshiram. Others sleeping nearby also woke up. According to this witness, there was injury on the head of Bhaurao, caused by an axe blow. We have seen cross examination of P.W.2 Ramdas. Indisputably, he has reported the incident to the police. In para 6 of the cross examination, he states that he himself and Ramnath were two witnesses, who had first seen the assailant while running away from the spot of the incident. In para 8 of the cross examination, P.W.2 has admitted that the distance between the doors of house of Mandabai and deceased Bhaurao is about 40 ft. In para 9 of the cross examination, he admits that from the spot of incident, their houses are at a distance of 100 to 150 ft. At the close of para 10 of the cross examination, this witness fairly admits that deceased Bhaurao used to use scarf covering his head. Apart from this scarf, he was also in habit of using piece of cloth (Uparna) 15 covering his head and neck. In the evidence of this witness, one chit was taken on record. Initially it was marked by letter "A" and subsequently it was exhibited at Exhibit-80. We shall deal with this part lateron at its appropriate place. We have given our anxious consideration to the minute details of the evidence of this witness P.W.2 Ramdas. 8. Core part of the evidence of this witness P.W.2 Ramdasis that, he could not identify the person who was running away. He was woken up by Ramnath P.W.4. It is P.W.4 Ramnath who disclosed to him that the person who was running away was the accused Tulshiram. This core part of the evidence is in para 4 of the examination in chief. If it is plainly accepted, it can be said that he could not identify the assailant and name of the appellant was told to him by P.W.4 Ramnath. In earlier part of para 4, this witness has testified that somebody assaulted him (Bhaurao). Further statement is most important "when on the head of Bhaurao somebody assaulted he embraced me." At this stage, in our view, it would be appropriate to refer the evidence of P.W.4 Ramnath who, according to the 16 prosecution, is also an eye-witness. It is the evidence of P.W.4 Ramnath that one day earlier to the incident, he had been to the house of deceased Bhaurao. At the time of incident, in his house, he himself, his parents and deceased brother Bhaurao, his wife and children and sister were present. At that time Ania was residing at the house of Mandabai. On 8th May, 2006, he states that, "deceased Bhaurao and Ramdas slept in the courtyard of our house". Here, we shall make mention that this part of the evidence of P.W.4 is not consistent with the evidence of P.W.2 Ramdas. In other words, there is contradiction. Two different stories are narrated by these two witnesses regarding place of incident. About core part of the incidence, P.W.4 Ramnath says that about 01.00 to 01.30 a.m. Bhaurao returned back, slept by the side of P.W.2 Ramdas. P.W.4 Ramnath heard shouts of Bhaurao at 03.30 to 04.00 a.m. and woke up. Next breath, he states that second blow on the head of Bhaurao by an axe was given by Tulshiram / accused and he ran away. He also claims that, at that time, Tulshiram was having white banian and black pant on his person. He 17 claims that he has seen Tulshiram in the moon light. He raised shout. According to this witness, injured Bhaurao embraced Ramdas. After hearing shouts of P.W.4, P.W.2 Ramdas also woke up. In our opinion, there is inconsistency in the place of incident in the evidence of P.W.2 Ramdas and P.W.4 Ramnath. Embrace by deceased Bhaurao to P.W.2 Ramds is consistently stated before the Court by P.W.2 Ramdas and P.W.4 Ramnath. In para 3 of his evidence, P.W.4 Ramnath states that like him, P.W.2 Ramdas had also seen Tulshiram while running away. 9. We have also considered the evidence of P.W.14 Mr. Ramesh Athawale, Police Sub Inspector. We have noticed that clothes on the person of P.W.2 Ramdas, when he was allegedly embraced by deceased Bhaurao, who had sustained bleeding injury, have not been attached by the investigating officer, nor produced on record before the Court. Those clothes if are stained with blood, would have important circumstance supporting the claim of P.W.2 Ramdas that he was present at the time of occurrence and had occasion to see the person running from the place of occurrence or had an occasion to hear 18 from P.W.4 Ramnath that he identified accused as Assailant and he ran away from the place of incident. All in all, if evidence of p.W.2 Ramdas, P.W.4 Ramnath and investigating officer P.W.14, are considered in their entirety reasonable doubt arose in respect of evidence of P.W.2 Ramads or his claim that either he had seen the alleged assault by the accused or has seen the accused running away from the place of incident after the occurrence. On appreciation of evidence of these three witnesses, according to us, it is difficult even to accept the evidence of P.W.4 Ramnath as that of the evidence of an eye witness. We have also recorded our opinion for contradiction in the place of incident in the evidence of P.W.2 Ramdas and P.W.4 Ramnath. On the point of place of incident, evidence P.W.14 and scene of offence Panchanama Exhibit-23 supports evidence of P.W.2 Ramdas. We have also noticed that P.W.2 Ramdas has made a statement in para 4 of his evidence (examination in chief) that he lodged the report to the police, however, do not support the prosecution to state that, husband of Anita i.e. 19 present Appellant/ accused gave blow of axe on the head of deceased and this has been seen by him as well as that time Appellant/ accused had put on black pant and half Banian on his person. It is interesting to note that such statement is made by P.W.2 Ramdas in his report Exhibit-40 which we have seen at page 247 of the compilation. As P.W.2 did not support this part of the case of the prosecution, request was made by learned A.P.P. to the trial Court declaring him hostile. Said request was acceded to by the trial Court and learned A.P.P. was permitted to put cross questions to P.W.2 Ramdas. We have noticed from para 5 of the cross carried out by learned A.P.P. in the trial Court, that P.W.2 Ramdas testified "P.W.2 Ramdas volunteered that after giving me kick by the police I was asked to sign F.I.R. after I was brought to the police station by police jeep". He has further stated in this para 5 of the cross examination carried out by learned A.P.P. that "today for the first time I am disclosing this fact". He has resiled some contents of his report Exhibit-40. They are listed by the trial Court by giving numerical numbers as 1, 2, 3, 5. These 20 omissions/ improvements/ contradictions are marked by letters "A", "B", "C", "D", "E", "F". We have also seen cross examination of P.W.2 para 6, carried out by learned A.P.P. Thereafter, we have considered the cross examination of this witness carried on behalf of the accused. This part of the evidence by the prosecution brings on record the manner and method allegedly adopted by the investigation officer. On this background, we have appreciated the evidence of P.W.2 Ramdas, P.W.4 Ramnath, P.W.14 Mr. Athawale, the investigating officer. We are of the considered opinion that P.W.2 Ramdas cannot be said to be an eye-witness to the incident of assault by the accused with axe at the material time. We have also noticed from the evidence of P.W.4 Ramnath, the admission given by him. We deem it appropriate to put on record said admission. "Police recorded my statement as per my say. It is true that in the night of the incident at 01.30 a.m. after drawing Mehendi Bhaurao slept by the side of Ramdas. It is not true that when I was in sleep Ramdas woke up me by touching to my body. I did not accompany Bhaurao (deceased) 21 in the tempo. At about 09.30 a.m. police had come in the village. At about 12.30 noon Ramdas and Anita accompanied the police for coming to Sanganmer. Again on the next day police had come to the village. On that day, police recorded statement in the village. I had seen the injury of Bhaurao at the house. We saw it in the light of kerosene lamp. The persons subsequently came there saw it in the light of torch." This part of the evidence of P.W.4 Ramnath was commented upon on behalf of the Appellant/ accused in the trial Court. Trial Court in para 22 recorded its opinion that P.W.4 Ramnath was 13 years old and, therefore, it cannot be said that even though through oversight admission is given by Ramnath Pande it cannot be said to be binding upon him when it is proved to be wrong. It is not possible for us to accede to these observations of the trial Court. In our opinion, P.W.4 Ramdas's evidence cannot be accepted to be the evidence of eye- witness account, truthful and genuine. We make it clear, we are not discarding evidence of P.W. 4 Ramnath because of his relationship that he is 22 real brother of deceased Bhaurao. 10.