2012 ALL MR (Cri) 2750
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH )
P.V. HARDAS AND P.B. VARALE, JJ.
Shashikant Keshavrao Maske Vs. State Of Maharashtra
Criminal Appeal No.549 of 2005
18th November, 2011
Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. T.A. MIRZA, APP
Penal Code (1860), S.300 - Evidence Act (1872), S.118 - Murder - Evidence of child witness - Credibility - Prosecution case that appellant and two others assaulted deceased by sword - Motive alleged that on account of allegations of theft of electric bulb at house of informant, appellant killed deceased - Evidence of eye-witness, a child aged twelve years is corroborated by immediate disclosure made by her father informing name of appellant as well as fact that appellant accompanied by two other persons assaulted deceased with a sword - Her evidence cannot be discarded, merely on ground that it is not corroborated by other independent witnesses - Conviction and sentence of appellant is proper. (Paras 10, 11, 13)
P.V. HARDAS, J. :- The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code, and sentenced to imprisonment for life and to pay a fine of Rs.1000/-, in default of which, to undergo further Rigorous Imprisonment for six months, by the Third Ad Hoc Additional Sessions Judge, Nagpur, by Judgment dated 6th August, 2005 in Sessions Trial No. 210 of 2004, by this appeal, questions the correctness of his conviction and sentence.
PW 11 Vinayak Khandekar, Police Sub- Inspector, who was attached to Police Station, Mouda, on 22nd February, 2004, recorded the report of PW 1 Vilas Urkude at Exh.41. On the basis of the said report, an offence came to be registered against the appellant and two other persons. The printed First Information Report is at Exh.42. PW 11 PSI Khandekar visited the scene of the offence and recorded the statements of the witnesses. He also recorded the statement of PW 4 Bhaiyalal Raut who was said to be an eye-witness. On 23rd February, 2004, blood samples and clothes of deceased came to be seized in the presence of Panchas vide Seizure Memo at Exh.65. The appellant-accused came to be arrested and during custodial interrogation expressed his willingness to point out the place where the sword was concealed by him. Accordingly, a Memorandum came to be drawn in the presence of the panch witnesses at Exh.67. A sword at the instance of appellant came to be seized under Seizure Memo at Exh.67. Since other accused have been acquitted and the State has chosen not to file any appeal questioning their acquittal, evidence in relation to those accused is not adverted to by us. The blood sample of the appellant came to be drawn and seized under a Panchanama at Exh.64. The seized property was referred to the Medical Officer for soliciting his opinion in respect of the injuries sustained by deceased Savita. Accordingly, PW 6 Dr. Dilip Gedam gave his report at Exh.57. The seized property was thereafter referred to Chemical Analyser along with the requisition at Exh.91. Further to the completion of investigation, a charge-sheet against the appellant and two other accused came to be filed.
3. On committal of the case to the Court of Sessions, Trial Court, vide Exh.27, framed Charge against the appellant and other accused for offence punishable under Section 302 read with Section 34 of Indian penal Code. The accused denied their guilt and claimed to be tried.
4. The entire prosecution case revolves around the evidence of PW 10 Pranali Urkude, who is an eye-witness to the incident. The other eye-witness PW 4 Bhaiyalal did not support the prosecution, and was declared hostile. Panch witnesses to the seizure of the weapon at the behest of the appellant did not support the prosecution. The report of the Chemical Analyzer at Exh.93 indicates that neither the clothes of the appellant, nor the weapon discovered at his instance were found to be stained with human blood. Therefore, the only evidence, which implicates the present appellant, is the evidence of PW 1 Vilas, husband of deceased Savita and PW 10 Pranali, daughter of deceased Savita.
5. PW 1 Vilas, husband of deceased Savita, states that the appellant was residing in his neighbourhood. PW 1 further states that he runs a hair cutting saloon situated in front of the gate of Motha Tajbagh. He has two children a son Pranay and a daughter Pranali. Deceased Savita was employed as a Peon in the Zonal Office, Medical Zone, Nagpur. On 22nd February, 2004, he was present in his shop, and had received a telephone call from Pranali, informing that Savita had been assaulted by the appellant by sword. He, therefore, immediately rushed home, and had noticed his wife lying in the courtyard. Savita had sustained injuries on her head, stomach and other parts of the body. Blood was found to be oozing from the injuries. Pranali informed him that there were three assailants, namely appellant and two others, who had assaulted deceased Savita. Accordingly, with the help of his brother-in-law, he took deceased Savita to Medical College & Hospital, Nagpur. The Medical Officer pronounced Savita dead. Thereafter the report at Exh.41 came to be lodged. According to PW 1 Vilas, on account of allegations of theft of electricity at his house, the appellant had killed deceased Savita.
In cross-examination, an omission has been pointed out that he had not stated in his report that he had received a telephone call from his daughter Pranali informing that Savita had been assaulted by the appellant. He has admitted in cross-examination that there was no compound wall to his house. He has also admitted that if any incident occurs in his house, it is visible to others. In further cross-examination, it has been admitted by him as true that there was a quarrel between the deceased and the appellant on the point of theft of electric bulb. Nothing further has been elicited in the cross-examination of this witness.
6. Mr. R.M. Daga, learned counsel for the appellant, has urged before us that the evidence of this witness is of hearsay nature. It is further stated that there is an omission in respect of receipt of telephone call from Pranali. Mr. Daga further urges that even Pranali in her evidence does not state that she had telephoned PW 1 Vilas.
According to us, the reason why PW 1 Vilas went to his house is immaterial. In the First Information Report, he states that his brother-inlaw had informed him that he had received a telephone call from Pranali and, therefore, Vilas had gone to his residence. According to us, the reason as to why Vilas went to his residence is immaterial. Importantly, PW 1 Vilas states that he had questioned Pranali and Pranali had disclosed to him that the appellant along with two others had assaulted deceased Savita.
7. PW 10 Pranali, a child witness, states that deceased Savita was her mother and the incident of assault on deceased Savita took place at about 4-00 to 4-40 p.m. She further states that she, her brother Pranay and her mother Savita were present in the house. At this time, Pranali was preparing tea, while her mother -deceased Savita was present in the porch. She heard a cry of her mother and, therefore, immediately came out of the house. She noticed the appellant and two others assaulting deceased Savita. The appellant was wielding a sword, while other two accused were holding Gupti [a sword stick] and an iron rod. The accused thereafter fled from the scene of the incident. She states that she ran to the house of her neighbour and informed this incident to her maternal uncle Sachin, who then arrived at the house, accompanied by PW 1 Vilas. She further states that about a month prior to the incident, the electric bulb fitted in the house had been stolen. Account of the theft of the electric bulb, there was a quarrel between deceased Savita and the appellant and since then they were not on talking terms. Omission has been duly proved through the evidence of PW 11 PSI Khandekar that she had not given the telephone number of her maternal uncle in her previous statement. Omission has also been proved that she had not stated in her previous statement that she had raised an alarm at the time of the incident. These are the only two omissions which have been duly proved. She has further admitted in cross-examination that excepting the quarrel on account of theft of the electric bulb, there was no quarrel between the appellant and deceased Savita. She has further admitted that she had shouted at the time of incident. She was confronted with the portion marked A in her statement, wherein she has admitted that deceased Savita was not assaulted by fists and kick blows. She has admitted that her statement was recorded on the day of the incident itself.
8. Mr. R.M. Daga, learned counsel for the appellant, has urged before us that no reliance can be placed on the evidence of PW 10 Pranali, as she is a child witness and she cannot be relied upon unless her evidence is corroborated. It is also urged before us by the learned counsel for the appellant that the other independent witnesses have not been examined by the prosecution.
10. It is true that PW 10 Pranali is a child witness. It is equally true that normally the evidence of a child witness should not be accepted without corroboration, as a child is susceptible to being tutored. We have carefully scanned the evidence of PW 10 Pranali and we do not find that Pranali is a tutored witness. She is an eye-witness to the incident and obviously none of the family members would tutor her to state the name of the appellant falsely, allowing the real offenders to go scot free. Moreover, evidence of Pranali is corroborated by the immediate disclosure made by her to PW 1 Vilas, as she had informed PW 1 Vilas the name of the appellant as well as the fact that the appellant, accompanied by two other persons, had assaulted deceased Savita with a sword. In such circumstances, therefore, according to us, the evidence of PW 10 Pranali, who was aged about twelve years cannot be discarded merely on the ground that her evidence is not corroborated by the evidence of other independent witnesses.
11. The prosecution had examined PW 4 Bhaiyalal as an independent witness, who did not support the prosecution, and was declared hostile. In such circumstances, the prosecution cannot be faulted for not having examined the other so called independent witnesses. Further, we find the evidence of PW 10 Pranali to be the evidence of a reliable witness and, therefore, we have no hesitation in relying upon the evidence of PW 10 Pranali.
12. The discovery of the weapon and the seizure of clothes of the appellant are not significant at all in the light of the fact that the report of the Chemical Analyzer does not disclose that either the sword or the clothes were stained with human blood. However, there is an overwhelming evidence on the basis of which the conviction of the appellant can be sustained.