1 apeal109.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 109 OF 2016
Yogesh Nilkanth Pande,
aged about 33 years, Occ. Labour Work,
R/o. Kamthi, Tq. & Distt. Wardha ...... APPELLANT
...VERSUS...
State of Maharashtra,
through P.S.O.Kharangna,
Tq. And Distt. Wardha ............ RESPONDENT
-------------------------------------------------------------------------------------------
Shri Mahesh Rai, counsel for appellant
Shri Vinod Thakare, Asstt., Public Prosecutor for Respondent
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, AND
MANISH PITALE, JJ.
th
RESERVED ON : 9 AUGUST 2017
th
PRONOUNCED ON : 18 AUGUST, 2017
JUDGMENT (Per Deshpande, J.)
1] In Sessions Case No. 54 of 2012, the learned Additional Sessions Judge, Wardha, vide his judgment and order dated 19.11.2014, has convicted the appellant/ accused for the offence of committing an act of culpable homicide amounting to murder under Section 302 of Indian Penal Code and he is made to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-. In default of payment of fine, the accused is required to undergo simple ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 2 apeal109.16.odt imprisonment for the period of six months. The appellant/accused is acquitted for the offence punishable under Section 498-A of the Indian Penal Code, and therefore, it is not necessary for this Court to deal with such charge as there is no appeal preferred against it. 2] The charge against the accused was that on 02.02.2012, between 6 p.m. to 7 p.m., he committed murder of his own daughter Ku.Sharvari, aged about 2 months, at mouza-Wardha, by throwing her in the well with an intention to cause her death and thereby committed an offence punishable under Section 302 of I.P.C.
3] The accused is the husband of complainant Varsha and out of their wedlock, two girl child were born. The eldest was Ku.Harshada, aged about 6 years, and the youngest was Ku. Sharvari of two months old at the time of the incident. The accused was addicted to liquor and he used to physically and mentally harass his wife Varsha. Therefore, she used to live with her parents at Murarka Wada, Wardha. At the time of incident also, she was living with her parents alongwith two minor daughters. The ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 3 apeal109.16.odt accused used to intermittently come there and quarrel with her.
4] The story of the prosecution is that, on 02.02.2012 at about 6 p.m., Varsha, the mother, had kept her daughter Sharvari, aged 2 months, in the cradle and had gone to the toilet for easing. The elder daughter Harshada was playing near the cradle. When Varsha came back at about 6.15 p.m., she could not find Sharvari in the cradle and hence, she asked Harshada who told her that 'maddya', the accused had lifted her and taken away. She, therefore, immediately came out of her house and found that the accused was going away with the child. She started shouting and in the meantime her parents also came and all of them followed the accused. The accused ran away with the daughter Sharvari and could not be traced out. On the next day i.e. 03.02.2012, at about 7 a.m., one Ravindra Shaymdiwal came to the house of Varsha and informed her that the dead body of Sharvari was found floating in the well near Murarka Wada. She, therefore, rushed to the spot and found the body of Sharvari floating in a well in a dead condition. She filed complaint in the police station. The first ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 4 apeal109.16.odt information report was lodged and the offences under Sections 302 and 498-A of I.P.C. were registered against the accused at 10.40 a.m. on 03.02.2012.
5] The Sessions Court recorded the conviction of the accused on the basis of the evidence of PW-1 Varsha and PW-3 Vijaya, the mother and grand mother of the deceased child. The Court also relied upon the evidence of PW-4 Prashant and PW-5 Sulochana, the independent witnesses, who deposed the theory of the accused and the deceased Sharvari, seen last together on 02.02.2012 between 6.30 p.m. to 8.45 p.m. The prosecution examined total 7 witnesses. The conviction is thus based upon purely circumstantial evidence.
6] The learned counsel for the appellant has urged that there was delay in lodging the F.I.R. The child was missing, according to the prosecution, from 6 p.m. onwards on 02.02.2012. But no complaint was made and it was for the first time, the F.I.R. was lodged at 10.40 a.m. on the next day i.e. 03.02.2012. According to him, there is no explanation for the delay. The learned counsel invited our ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 5 apeal109.16.odt attention to the evidence of PW-2 Ravindra Srivas and PW-4 Prashant, who deposed to have seen the accused on 02.02.2012 during 8 p.m. to 9.30 p.m. alongwith minor child. However, PW-2 Ravindra stated that the child was delivered back to the mother by the accused in his presence, whereas PW-4 Prashant stated that he saw the accused going back to the house of his in-laws alongwith the minor child and he was seen coming back without child. He, therefore, submits that the evidence of PW-4 Prashant could not have been relied upon by the trial Court to record the conviction. He submits that oral evidence of PW-1 Varsha and PW-3 Vijaya, the mother and grand mother of the deceased child, could not have been believed because the relations of the accused with them were strained and they wanted to falsely implicate the accused. He further submits that the motive on the part of the accused to kill his own daughter has not been established.
7] The only question before us is whether the Sessions Court was right in recording the conviction under Section 302 of I.P.C. against the accused on the basis of the circumstantial evidence of last seen together, in the absence ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 6 apeal109.16.odt of there being any eye witness to an incident. 8] The Sessions Court found the oral evidence of PW-1 Varsha and PW-3 Vijaya to be credible evidence which is corroborated by the oral evidence of independent witnesses PW-4 Prashant and PW-5 Sulochana, who saw the accused with Sharvari between 8 p.m and 8.30 p.m on the date of incident. The Court considers that though the evidence brought on record indicates that PW-4 Prashant and PW-5 Sulochana were having good relations with PW-1 Varsha or that there is animosity in between them and the accused, there is nothing suspicious in their evidence and there is no reason to disbelieve them. It holds that the burden was upon the accused to explain as to where he was taking the child Sharvari.
9] The Sessions Court looks into the statement of the accused under Section 313 of Cr.P.C and holds that the accused has simply answered all the questions put to him as 'false'. The Court holds that it was obligatory on the part of the accused to furnish some explanation with respect to the incriminating circumstances associated with him, which can ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 7 apeal109.16.odt be taken into consideration to decide as to whether the chain of circumstances is complete. Referring to Sections 101, 103, 104, 106 and 114 of the Evidence Act, the Court holds that the facts which are established as 'within the knowledge of the accused' need to be explained by the accused. On the question of 'motive', the Court holds that considering the fact that the accused was not residing with PW-1 Sou. Varsha and the children, it was for the accused to clarify as to why he went to the parental house and took away the daughter with him. The Court holds that the accused has not stated as to where he was at the time of incident and there is no suggestion in the defence that somebody else is involved in the crime.
10] Except alleging animosity and grudge of PW-1 Varsha and PW-3 Vijaya, we do not find anything in the cross examination of these witnesses to create any suspicion about their version. Be that as it may, the unshaken testimony of two independent witnesses i.e. P.W.-4 Prashant and PW-5 Sulochana clearly corroborates the version of Versha and Vijaya. After going through the evidence of all the witnesses, the fact is established beyond reasonable doubt that the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 8 apeal109.16.odt accused had gone to the parental house of Varsha and taken away custody of child Sharvari, without her knowledge and consent. The accused was seen alongwith the minor child Sharvari by almost all the witnesses, who have deposed the theory of last seen together, including PW- 2 Ravindra Shrivas, who turned hostile. We, therefore, do not find any infirmity in the reliance placed by the Sessions Court upon the evidence of PW-1, PW-3, PW-4 and PW-5 to establish the theory of last seen together beyond reasonable doubt.
11] We also do not find any infirmity in the view taken by the Sessions Court that in the facts and circumstances of this case, the accused was required to furnish an explanation in respect of incriminating circumstances in his statement under Section 313 of Cr.P.C. There is absolutely no explanation as to why he approached the parental house of his wife Varsha, the purpose for taking away the child without consent and knowledge of his wife Varsha and as to whether he returned the child to his wife. We are aware that the motive is not an ingredient of an offence under Section 302 of I.PC., but, in the present case ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 9 apeal109.16.odt which is based upon the circumstantial evidence, the learned Sessions Judge has also dealt with the motive of the accused, which can be gathered from the strained relations of the accused with his wife, coupled with the incident that on one occasion, the accused took away his elder daughter Harshada with him without the consent and knowledge of his wife and caused injuries to her. The motive may be to teach lesson to his wife and in-laws. We, therefore, do not find any infirmity in such a view taken by the Sessions Court. 12] Coming to the evidence of PW-2 Ravindra Srivas, who turned hostile, we find that he was very well acquainted with the accused, his wife Varsha and the maternal grand parents of the child Sharvari. He deposes to have seen the accused alongwith deceased daughter who was crying on the day of the incident. He states that the accused was slapping (abusing) his daughter and when this witness asked him about it, he told the witness not to interfere and he will do whatever he likes. When this witness went near the accused, he was told by the accused not to touch, otherwise he will throw the minor child on the ground. This witness empathetically deposes to have seen burn ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 10 apeal109.16.odt injuries on the cheeks of the minor child. In the cross examination, he states that, "it is not true to say that I have not seen accused slapping the minor child and burn injuries on the chicks of the girl". This witness in his examination-in- chief suddenly takes turn and deposes that the grand parents and mother of the child came running and directed the accused to give custody of the child and the accused gave the minor child to the mother. In cross examination, he says that the accused gave girl to the parents of the complainant in the presence of the complainant and then went away. 13] PW-4 Prashant Mahakalkar was also acquainted with the accused and states that on the day of incident, he was standing along with his two friends on the stairs of Murarka Kirna Stores, when he saw the accused going somewhere along with his daughter. He states that the accused was holding his daughter in his hands and the daughter was very small. Then he says that the accused returned after 4-5 minutes and at that time the child was not with him. The accused ran away towards the main road. He states that the accused was son-in-law of Rajdharkar where he was living. In the cross examination he states that the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 11 apeal109.16.odt accused was going to the house of Kalidas Rajdharkar along with the child and he crossed them after 2-3 minutes when he was alone and nobody was following him.
14] The hostility on the part of these two witnesses, PW-2 and PW-4 can be examined in the light of the decision of the Apex Court in the case of Prithi vrs. State of Haryana, reported in (2010) 8 SCC 536. This decision is on the admissibility of testimony of hostile witness and the relevant portion contained in paragraph nos. 25, 26 and 27 of the said decision is reproduced below.
"25............. In Khujji v. State of M.P., a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v. State of Karnataka, reiterated the legal position that :
"6. ..... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof"
26. In Koli Lakhmanbhai Chanabhai v. State of Gujrat, this Court again reiterated that testimony of a hostile witness is useful to the extent to which it supports the prosecution case. It is worth noticing that in Bhagwan Singh this Court held that when a witness is declared hostile and cross-examined with the permission of the court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.
27. The submission of the learned Senior Counsel for the appellant that the testimony of PW-6 should be either accepted as it is or rejected in its entirety, thus, cannot be accepted in view of the settled legal position as noticed above". ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 :::
12 apeal109.16.odt It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof. It holds that the evidence of hostile witness remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence. The Apex Court clearly rejects the contention that the testimony of the hostile witness should either be accepted as it is or rejected in its entirety.
15] In our view, the evidence of all the witnesses deposing the theory of last seen together the accused and the minor child Sharvari on the date of incident, establish the guilt of the accused beyond reasonable doubt. There is a discrepancy in the evidence of PW-2 Ravindra Srivas when he says in the examination-in-chief that, "minor child was handed over immediately to the mother Varsha" and in cross examination, he says that, 'the child was handed over the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 ::: 13 apeal109.16.odt grant parents in presence of Varsha'. This version of the witness is not corroborated by any other witnesses. Similarly, the version of PW-4 Prashant that he saw the accused returning from the house of Rajdharkar without child also cannot be believed. The accused was not staying in the parental house of his wife Varsha. It is not the version of PW-4 Prashant that the accused returned the child either to the mother Varsha or to the parental parents. No doubt that the F.I.R. was lodged at 10.40 a.m. on the next day i.e. 03.02.2012. Obviously, such a complaint could only be after the child was found in the dead condition floating in the well. We do not find that there was any delay in lodging the F.I.R. being fatal to the story of prosecution.
16] In view of above, we concur with the view taken by the Sessions Court and dismiss this appeal. There shall be no order as to costs.
JUDGE JUDGE
Rvjalit
::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:27:14 :::