Criminal Appeal No.153 of 1995

7th September, 2000

Petitioner Counsel: Shri H.K.MUNDHE
Respondent Counsel: Shri V.B.GHADGE

Cases Cited:
State of Orissa vs. Mr.Brahmananda Nanda, AIR 1976 SC 2488 [Para 6]
Chuhar Singh vs. State of Haryana, 1976 (1) SCC 879 [Para 14]
Pattada Amarappa vs. State of Karnataka, AIR 1989 SC 2004 [Para 16]

JUDGMENT

DABHOLKAR, J. :- The appellants are convicted for offence punishable u/s 302 r/w 34 of Indian Penal Code and sentenced to suffer life imprisonment, fine Rs.500/-, in default to suffer rigorous imprisonment for 3 months, by judgment dated 3.3.1995 delivered in Sessions Case No.181/1994 by Second Additional Sessions Judge, Nanded. The said judgment and conviction is being challenged by present appeal.

2. Deceased Bharat was son of appellant no.2-Maruti. On the night between 9.5.1994 and 10.5.1994, he was murdered by inflicting an injury on the right side of the neck by means of sharp cutting weapon. On 10.5.1994, a report by accused Maruti about the same was delivered through Kotwal of village Dahikalamba to Osmannagar Police Station (Exh.36). In this report, accused Maruti had not named any culprit nor expressed suspicion against anyone. A.P.I. Shri Honaji Warne proceeded to village Dahikalamba. At that time, Maruti orally narrated the details which were reduced to writing by Police. This report is at Exh.37. In this report, appellant-accused Maruti has expressed that deceased Bharat had illicit relations with Gayabai w/o Nagorao Shinde and, therefore, he claimed that Nagorao and his sons Suryaji and Devidas have killed his son Bharat.

Admittedly, deceased was married to Jayashri and Nagorao and his wife were the mediators for this marriage, Jayashri being daughter of Gayabai's sister. For the purpose of marriage, accused had borrowed an amount of Rs.4,000/- from Nagorao. According to this report (Exh.37), Jayashri was staying with her parents, as she had not attained puberty and Bharat was more attached to the family of Nagorao, he was frequenting, even staying there and taking his meals with that family. Only occasionally he was staying with parents. According to Maruti, he and his wife had tried to persuade Bharat against immoral relations with Gayabai.

About a month prior to the incident, deceased Bharat had taken two Maunds of wheat from parents' house to Nagorao inspite of objection by father Maruti.

On the basis of this complaint, it appears that A.P.I. Shri Warne effected arrest of Nagorao and his son Devidas on 11.5.1994, who were subsequently released u/s 169 of the Code of Criminal Procedure, 1973, on the basis of report dated 21.7.1994 by Police Inspector, Local Crime Branch, Nanded.

It appears that investigation of the matter was taken away from A.P.I. Warne of Osmannagar Police Station and handed over to P.I. Shri H.L.Salunke on 6.7.1994 as ordered by the Superintendent of Police, Nanded. This was because of application by Yamunabai, mother of the deceased. This application is at Exh.51. In this application, Yamunabai has accused Police to have indulged into corruption. She has requested for fresh investigation in the matter and she has claimed that Bharat was murdered by brother of her husband Sadashiv (appellant no.1) and his wife Shantabai, as also son Narayan.

After this order, P.I. Shri H.L.Salunke, attached to L.C.B., Nanded, carried out further investigation by recording statements of witnesses on 12th and 13th July, 1994. He effected arrest of both appellants on 13.7.1994 and appellants were remanded to Police custody upto 18.7.1994 and subsequently 21.7.1994. Weapon used for the commission of offence i.e. axe, is said to have been recovered at the instance of appellant no.1 Sadashiv during this period.

After completion of investigation, P.I. Shri H.G.Chauhan, successor in office of P.I. Shri Salunke filed the chargesheet in the Court of J.M.F.C., Kandhar. Prosecution has entered the trial with a story that appellant no.1 inflicted the axe-blow to the victim and appellant no.2 had caught the legs of the deceased. This was because upon hearing the cry of the victim, witnesses saw appellant no.1 standing near the head of the victim with an axe and appellant no.2 sitting near the legs. The case ended in conviction, as narrated above, after trial before Second Additional Sessions Judge, Nanded.

3. The defence of accused persons is of total denial. According to appellant Sadashiv, P.W. Suryaji Shinde has deposed against him due to enmity. In the past also, Suryaji had accused him for theft. Appellant no.2 Maruti claimed that daughter Sarjabai and witness Shivaji deposed against him under the pressure of Nagorao and Kisan. According to him, Suryaji and Datta have deposed against him due to strained relations.

4. Apart from absence of any challenge to the fact of homicidal death, by relying upon evidence of medical officer and daughter of accused no.2 Sarjabai, the learned trial Judge arrived at a conclusion that prosecution has established the death of Bharat to be homicidal.

By relying upon the evidence of Jayashri, wife of the deceased, the learned Judge believed that the two appellants were annoyed with deceased because he was determined to visit village Martala, place of his father-in-law, inspite of their objection. The trial Court has also referred to an incident between Nagorao on one side and appellant Sadashiv on the other, wherein there was quarrel, because Nagorao grazed his cattle in the field of Bharat, which was being cultivated by Bharat with the cooperation of Nagorao. Thus, according to the learned trial Judge, there was sufficient motive, as the accused were annoyed with the deceased.

It appears that the learned trial Judge believed the evidence of Sarjabai, daughter of the deceased, supported by P.W. Suryaji who claims to be sleeping on the parapet wall of the well at a distance of few feet from the location of victim. Evidence of P.W. Shivaji is also accepted by the learned trial Judge. Shivaji is companion of the deceased and was sleeping with the deceased on the same cot. It is the claim of the prosecution that he was sent away by accused no.2 just before the alleged incident. According to learned Judge, even if the evidence of second eye witness Datta Baba is ignored, depositions of Sarjabai and Suryaji Shinde are sufficient to lead to an inference of accused no.1 having inflicted the fatal injury and accused no.2 being a party to the act of accused no.1.

In view of conclusions as above, the learned Judge recorded finding of guilty and passed the impugned sentence.

5. Since the impugned judgment of conviction is mainly based upon evidence of Sarjabai (P.W.6), Shivaji Shinde (P.W.7), Datta Baba (P.W.8), and Suryaji Shinde (P.W.10), learned counsel Shri Mundhe, appointed for the purpose of prosecuting the appeal, assailed the evidence of these four witnesses as unreliable and for the purpose he relied upon the portions from their previous statements dated 10.5.1994, which were contradicted by these witnesses and proved by A.P.I. Shri Warne.

Sarjabai, daughter of victim, is the main witness of the prosecution in this matter. On reference to portion from her Police statement dated 10.5.1994 which was contradicted by her (Exh.46), she appears to have stated that appellant Sadashiv had come to her place on 9.5.1994 requesting her husband to lend Rs.5,000/- and on the next day i.e. 10.5.1994, a messenger came from Dahikalamba informing about murder of her brother Bharat. She claims to have proceeded to Dahikalamba after such message. It is needless to say that this previous statement of Sarjabai leads to an inference that she was not at the place of parents on the fateful night.

Other witness Suryaji Shinde, who claims to have seen the incident while sleeping on the parapet wall of the well, in his statement dated 10.5.1994 claimed ignorance about who might have murdered Bharat. This contradicted portion from earlier statements is Exhibit 45.

P.W.7 Shivaji Shinde, friend of the victim in his statement dated 10.5.1994 (Exh.42) has stated to have departed at 11 p.m. on his own. It was not his contention that time, that accused no.2 sent him away.

Lastly, Datta Baba Shinde (P.W.8) had stated before Police on 10.5.1994 that he had consumed liquor with his friends on that night and slept thereafter with little bickering with his wife. He narrated to have learnt about the murder only on 10th morning (Exhs.43 and 44).

If these previous statements of the four witnesses are taken into consideration, the common inference that can be drawn against them is that they are not the eye witnesses.

6. The learned counsel Shri Mundhe placed reliance on AIR 1976 Supreme Court, 2488 - State of Orissa V/s Mr.Brahmananda Nanda. It is observed by the Hon'ble the Apex Court as follows :

"Where in a murder case, the entire prosecution case depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of the assailant for a day and half after the incident and explanation offered for non disclosure was unbelievable, held that such non disclosure was a serious infirmity which destroyed the credibility of the evidence of the witnesses............."

No doubt, none of these four witnesses including the daughter of the deceased had disclosed the names of appellants as the culprits in their statements dated 10.5.1994. However, certain events, peculiar to the present case cannot be ignored before arriving at a conclusion to discard the evidence rendered by these witnesses before the Court. Even considering the case relied upon by the learned counsel Shri Mundhe, in case explanation offered for non-disclosure at early stage is worthy of acceptance, the evidence rendered by these witnesses on oath before the trial Court may have to be accepted.

7. In this case, investigation was initially being carried out by A.P.I. Shri Warne and it had changed the hands due to application by Yamunabai, mother of the deceased and wife of appellant no.2. This fact is admitted by the defence by suggestion to that effect to A.P.I. Shri Warne, although Shri Warne claimed ignorance about complaint of Yamunabai. The order transferring the investigation to Local Crime Branch, Nanded, was passed by Superintendent of Police, Nanded, on 5.7.1994 as can be seen from Exh.51 and P.I. Shri Salunke was incharge of the investigation since 6.7.1994.

It is pertinent to note that all these four witnesses are contradicted by confronting them with the contents in their statements as recorded on 10th May, 1994. They are not confronted with any contents from the supplementary statements as recorded by P.I. Shri Salunke on 12.7.1994 and 13.7.1994 i.e. statements recorded after the investigating officer was replaced. Hence, it can safely be inferred that evidence rendered by these witnesses on oath is in harmony with the statements made by them before second investigating officer.

8. Coming back to the evidence of these four witnesses, we find that atleast three of them namely Sarjabai, Datta and Suryaji have tried to explain as to why they did not make any statement against the appellants on earlier occasions.

It is the claim of Sarjabai accused Sadashiv extended threat that, if his name was disclosed to anybody, he would kill them. She adds that even weeping was not permitted by accused Sadashiv.

P.W.8 Datta Shinde concluded his chief examination by specifically stating that due to fear of accused Sadashiv, he did not disclose the incident witnessed by him to investigating officer for a considerable period.

P.W.10 Suryaji Shinde also concluded his chief examination by saying that he had fear in his mind and hence for many days, he did not disclose the incident to Police.

Thus, it can be seen that all three witnesses have offered common explanation i.e. apprehension that accused may harm them, if they disclose the incident to Police or anyone else. Whether this apprehension is satisfactory and sufficient explanation will have to be viewed in the light of facts and circumstances of this case.

9. Admittedly, report (Exh.36) was sent by appellant no.2 to Osmannagar Police Station through village Kotwal, on the morning of 10th May, 1994. A.P.I. Shri Warne immediately visited the village and recorded statements of these witnesses on the same day i.e. 10th May, 1994. Same day he has also recorded statements of accused no.2 (Exh.37) which was treated as F.I.R., although in fact Exh.36 ought to have been treated as F.I.R. Thus, these statements dated 10.5.1994 contradicted by the witnesses while rendering evidence from the box and which are tried to be capitalised by the appellants, were recorded within few hours from the alleged incident, at village and in all probability when both the appellants were around the place.

10. Other details regarding the antecedents of the two appellants as have come on record during the evidence of Sarjabai are also required to be taken into consideration for the purpose of judging whether fear of the accused as the cause for their long silence, pleaded by these witnesses, is justifiable.

In para 4 of her evidence (chief examination), Sarjabai has stated that one Maina daughter of Digamber r/o village Kiwala was first wife of deceased Bharat. There was divorce because father (appellant no.2) had an eye on Mainabai.

Second wife of deceased Bharat namely Jayashri is niece of Nagorao. She is daughter of Gayabai's sister, Gayabai being wife of Nagorao. For this second marriage, according to Sarjabai, appellant no.2 had borrowed some amount from Nagorao, which appellant no.2 was refusing to repay.

In her cross-examination (para 5), Sarjabai had stated that her other brother, namely Shankar, was murdered by appellant no.1 Sadashiv by administering poison. According to her, no complaint was lodged to the Police about this incident, although defence suggests that appellant no.2 had lodged complaint against her maternal uncle Kishan Baswande.

The heap of fodder owned by Suryaji was allegedly set on fire by appellant Sadashiv.

Sadashiv was also under suspicion, when there was theft of necklace from the house of Datta Baba. Due to this suspicion, Datta Baba is said to have cancelled agreement of sale of the house executed in his favour by the appellants.

All these details have come in the cross-examination of Sarjabai at the suggestion of defence. The suggestions were certainly aimed at bringing on record enmity between the appellants and the witnesses, but those also throw light upon the antecedents of appellants. In the light of accusations against the appellants in the past, irrespective of the fact whether those were true or not, it is no surprise if Sarjabai and other witnesses were scared to speak about the two appellants within few hours from the murder.

11. P.W. Sarjabai being the only daughter of appellant no.2 should stand on different footing than other three eye witnesses namely Shivaji, Suryaji and Datta. It was suggested to her that she is deposing false at the instigation by Nagorao. Nagorao was in the custody of Police from the time of his arrest on 11.5.1994 on the basis of complaint by appellant no.2 (Exh.37) and was released u/s 169 of the Code of Criminal Procedure, 1973 only on 21.7.1994. The statement of Sarjabai was recorded by second investigating officer on 12.7.1994 when Nagorao was not available to tutor anything to Sarjabai.

It was also suggested to her that appellant Sadashiv had purchased bullocks with the intervention of Nagorao and Sadashiv did not pay the price of bullocks to the vendor. Sarjabai pleaded ignorance about this transaction. The suggestion was aimed at suggesting ill feelings between Nagorao and appellant no.1 Sadashiv, but the cause is not strong enough for Nagorao to be able to persuade daughter of appellant no.2 and niece of appellant no.1 Sarjabai to falsely inculpate her father and uncle with serious charge of murder of her own brother.

It is also suggested that Sarjabai is deposing false due to fear of her maternal uncle Kishan. Admittedly, there was quarrel between Kishan and appellant no.2 when Kishan objected appellant no.2 mortgaging his agricultural land to one Chander Sambhaji. We do not feel this to be cause, strong enough for the daughter to fall on the side of maternal uncle instead of her father.

During whole of her cross-examination, there is no suggestion regarding any incident in the past or such treatment by any of the appellants to Sarjabai, for which she can be said to have an axe to grind against the two appellants. We, therefore, find it impossible to swallow, that because father and uncle have strained relations with Kishan or Nagorao, Sarjabai would prefer to be on their side and go to the extent of falsely implicating her father and paternal uncle with the charge of murder.

12. Contradicted portion from the statement dated 10th May, 1994 of Sarjabai (Exh.46) leads to inference that on the fateful night, Sarjabai was at the place of her husband i.e. village Chikhali. The prosecution has examined husband of Sarjabai, namely Dadarao Kadam as P.W.11 at Exhibit 34. He has confirmed that a day prior to the incident i.e. on Sunday, his wife had been to Dahikalamba alongwith children. This was because daughter Pratibha had stomach ache. The wife was to be at Dahikalamba also because her brother Bharat was to go to his father-in-law for the purpose of attending Pitra rites. According to him, on Tuesday morning, Vishwambhar had come and informed about death of Bharat and thereafter he himself and his parents proceeded to Dahikalamba. Thus, evidence of Dadarao confirms that on the fateful night, Sarjabai was at the place of her parents i.e. village Dahikalamba.

13. To sum up, although Sarjabai made a statement on 10.5.1994 to indicate her absence at the place of her parents on the fateful night, such previous statement need not falsify her evidence before the Court claiming her presence at the place of parents on the fateful night. This is because her evidence coupled with facts and circumstances explain why she must not have rendered statement inculpating both the accused on that day within few hours from the incident. She has given enough antecedents justifying her fear of the accused. The circumstances existing on 10.5.1994 further strengthen/justify her fear. When her statement was recorded by Police, it can be safely presumed that accused must be around the place, since on that day investigation had commenced on the basis of report by appellant no.2. She being daughter of appellant no.2 and niece of appellant no.1 is in peculiar position. Although there appear to be disputes between appellants on one side and Kishan as also Nagorao on the other side. Sarjabai is not so much concerned with those disputes that she would be tempted to be on the side of Kishan and Nagorao implicating her father and uncle with false murder charge.

We are, therefore, inclined to accept the submission of learned A.P.P. Shri Ghadge that evidence of Sarjabai need not be rejected inspite of her statement dated 10.5.1994 as recorded by first investigating officer immediately after the murder, especially so when she is not contradicted with any of her statements recorded after change of investigating officer.

In the light of details discussed above, we find, the explanation of Sarjabai (P.W.10) and Datta (P.W.8) for non-disclosure to Police, their knowledge about the incident and participation of appellants in the crime, for considerable time, deserves to be accepted.

14. By relying upon observations of the Hon'ble the Supreme Court in 1976 (1) Supreme Court Cases, 879 - Chuhar Singh V/s State of Haryana, the learned counsel Shri Mundhe for the appellants urged to disbelieve the eye witnesses, contending that the evidence of eye witnesses suffers from the same weaknesses as in the reported case. It is observed in the reported case,

"Where the supposed solitary eye witness was examined nearly three weeks after the incident and where his testimony in the lower Courts was discrepant and also contradicted by the F.I.R., the conviction based on his sole testimony cannot be sustained."

In our view, the observations in the reported case are not applicable to the matter before us in view of facts and circumstances. Although admittedly, the inculpatory statements of eye witnesses have come after considerable time gap i.e. on 12th July, 1994 to be precise, as discussed earlier, there is satisfactory explanation as to why the eye witnesses did not disclose the names of appellants or the details of incident to the investigating agency at an earlier stage.

In the present case, there is no question of testimony of these witnesses in the lower Court, because this is a committal under Criminal Procedure Code of 1973.

15. The learned counsel Shri Mundhe relied upon Exhibit 51 and contended that the evidence of the eye witnesses is discrepant with Exhibit 51 which totally shatters the prosecution case.

In fact, Exhibit 51 is not the First Information Report and whether it is admitted in evidence on proper proof itself is doubtful and debatable.

The object of insisting upon prompt lodging of F.I.R. is to obtain early information of offence, circumstances leading to it, the names of culprits, part played by each and names of eye witnesses. Delay results in loss of spontaneity, introduction of afterthought, coloured and exaggerated version and that is why delay in lodging F.I.R. is required to be satisfactorily explained. However, there is no rule that F.I.R. must come from particular person or from an eye witness. As can be seen from Exhibit 36, accused no.2 had already reported to the Police Station that Bharat was murdered. This being information relating to commission of cognizable offence was the First Information Report. Therefore, the contents of Exhibit 51, author Yamunabai not having entered the witness box, are not at all proved, although the trial Court has exhibited it during the course of evidence of P.I. Shri Salunke. Shri Salunke referred to it as application tendered by mother of the victim to the Superintendent of Police, Nanded, whereupon the Superintendent of Police, Nanded, ordered transfer of investigation from Osmannagar Police Station to Local Crime Branch, Nanded. Strictly speaking, the contents of Exhibit 51 having not been proved, shall not be available to the defence to contradict the eye witnesses.

It is settled position that First Information Report cannot be used as a substantive or primary piece of evidence of the truth of its contents. Being a previous statement, it can, strictly speaking; be only used to corroborate or contradict the maker of it. It can be used to corroborate or discredit the informant only and not witnesses other than informant. Viewed from this angle, even if Exhibit 51 is considered to be First Information Report, for the sake of argument and assumption, the contents of the same cannot be used to discredit Sarjabai or other three eye witnesses.

Apart from limited use for corroboration or contradiction of the informant, omissions of important facts affecting the probabilities of the case are relevant u/s 11 of the Evidence Act in judging the veracity of the prosecution case. But Exhibit 51 is not the First Information Report, much less a spontaneous one. The same, therefore, cannot be used to discredit the eye witnesses, who stepped in witness box and being thoroughly cross-examined. Strictly speaking, Exhibit 51 is previous statement of Yamunabai, since that has come after registration of the offence on the basis of Exhibit 36. Therefore, if at all, the same could have been used to corroborate or contradict Yamunabai had she been examined as a prosecution witness.

16. Prosecution has not examined Yamunabai, though it is the claim that, alongwith Sarjabai she had also reached the victim on hearing shout and seen appellant nos.1 & 2, respectively standing near the head and legs of the victim.

The learned counsel Shri Mundhe relied upon AIR 1989 Supreme Court, 2004 - Pattada Amarappa & others V/s State of Karnataka and especially the observations in para 26 which are as follows :

"The onus of proving the prosecution case rests entirely on the prosecution and the prosecution cannot be compelled to examine one witness or the other and if a material witness is withheld, the utmost that would follow would be to draw an adverse inference against the prosecution. But before such adverse inference can be drawn, it must be proved to the Court that material witnesses had actually seen the occurrence, but had been deliberately withheld from the witness box by the prosecution."

In the present case, Sarjabai and Yamunabai stood on the same footing and Sarjabai having been examined as witness, the utmost inference adverse to the prosecution that can be drawn is that Yamunabai would not have supported the prosecution case, had she stepped in the witness box.

Even if we draw such adverse inference, as discussed, the reasons why Yamunabai would not have supported the prosecution are too obvious. She is wife of appellant no.2. Deceased Bharat was her only surviving son, other son Shankar having died about 5 years earlier. Appellant no.2 is, thus, the sole surviving family member and support as far as Yamunabai is concerned, Sarajabai being daughter married 10 years prior to incident.

17. As far as Sarjabai is concerned, there is no suggestion that she was ever ill-treated to the slightest extent by any of the appellants. She is married about 10 years ago and, therefore, must be least concerned with the reasons for animosity between the appellants on one side and Nagorao/Kishan on the other. There is no benefit in favour of Sarjabai by virtue of acts of Nagorao and Kishan. In these circumstances, there is no plausible reason why Sarjabai should depose against her father and two uncles. The fact that she speaks against her father itself gives an assurance of trustworthiness to her evidence.

According to evidence of her husband P.W.11 Dadarao, he alongwith parents went to Dahikalamba on 10.5.1994. Funeral of Bharat was carried out at sunset hours on that day and Dadarao returned home same evening. According to him, Sarjabai returned on the next day. Dadarao confirms that when Sarjabai returned, she informed Dadarao that appellants had killed Bharat. This lends further credibility to Sarjabai, as a witness.

18. Defence has tried to suggest that Nagorao had motive to kill Bharat, by suggesting that Bharat was maintaining immoral relations with Gayabai w/o Nagorao. Apart from admission by 'submitted' investigating officer Shri Warne that during the course of investigation (by him) it transpired that Bharat had illicit relations with Gayabai, there is nothing on record to probabalise this defence theory. What is narrated by Shri Warne is inadmissible, being hearsay. Defence has not been able to point the source, through admission by A.P.I. Warne, which revealed the illicit relationship between Gayabai and the deceased.

19. On the pint of motive, evidence of Jayashri wife of deceased is required to be referred to. The defence suggestion to the effect that she was not staying with deceased, because she had not attained puberty is denied by her. Eventually, it is the suggestion of defence that Jayashri alongwith deceased used to reside at the house of Nagorao and Gayabai.

Jayashri has narrated the incident that took place on Saturday, when her father had come to Dahikalamba and offered cloth plus stitching charges to deceased Bharat. Appellants had strong exception for deceased accepting the same, as also attending the Pitra rites at the place of his in-laws.

It is admitted by the defence that Bharat was cultivating his land with the assistance rendered by Nagorao. Defence also admits that appellant Maruti did not like this. In fact, on reference to Exh.37, it can be seen that appellant Maruti was annoyed because of deceased maintaining relations with the family of Nagorao. Bharat was also not paying heed to the advice of parents and uncle Sadashiv to sever the relations. This was certainly sufficient to create further ill-feelings between the appellants and deceased.

On reference to evidence of Sarjabai, there appears more reasons for appellants getting annoyed with the deceased. Bharat had divorced his first wife Maina. According to Sarjabai, appellant no.2 had an evil eye for Maina. Appellant no.2 was also insisting Bharat to divorce second wife Jayashri.

Considering the circumstances those have come on record, it can be said that practically all the acts and conduct of deceased was looked with disapproval by the appellants and they never spared expressing their annoyance towards it. It is also admitted position that inspite of expression of disapproval by father, Bharat never changed his attitude, which can be the reason for aggravated annoyance.

Thus, the learned trial Court was justified in holding (para 38 of the judgment) that there is sufficient material on record to attribute motive to the appellants.

20. Since the evidence of Sarjabai and Suryaji supported by evidence of husband of Sarjabai is worthy of credence, the finding recorded by the trial Court against the appellants is not required to be disturbed.

In the result, the appeal fails and the same is dismissed.

Appeal dismissed