Prakash Waman Shejul vs The State Of Maharashtra
2002 Latest Caselaw 686 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellant is hereby assailing the correctness, property and legality of the judgment and order passed against him by the Additional Sessions Judge, Greater bombay in Sessions Case No. 848 of 1994 whereby the learned Judge had convicted the appellant for offences punishable under the provisions of Section 304 Part II IPC read with Section 299 Clause 3 of IPC and sentenced him to suffer RI for 10 years.

2. The prosecution case in brief is that on 27.3.1994 at about 10 p.m. deceased Laxman Salve after taking the meal went to the house of his neighbour for hearing the sons. His wife was inside the hut along with her children. After sometime, she heard her husband shouting by taking her name. Therefore she went out and saw a quarrel between the appellant and her husband Laxman in which the appellant assaulted the deceased with fist blows and kicks on his chest and abdomen. She also saw the appellant twisting the genital organ of the deceases. She intervened and with the help of neighbours brought her husband to her house. He was not able to sit and, therefore, lied down. Within 10 to 20 minutes he died. Nanda lodged FIR in the police station. The investigation started. The post mortem examination was performed and after completing the investigation the appellant was charge sheeted and lastly he faced the trial in which he was convicted and sentenced as mentioned above. Shri Sait, counsel appearing for the appellant, submitted that the prosecution had failed to establish the guilty of the appellant beyond reasonable doubt because the prosecution case totally rested on the evidence of the wife of the deceased named Nanda. He pointed out that the independent witness, the neighbour Smt. Dhrapadabai did not support the prosecution case and, therefore the learned trial Judge had committed an error of coming to the conclusion that the prosecution had proved the guilty of the appellant beyond reasonable doubt and thereafter had further gone to commit the error in convicting and sentencing the appellant. According to Shri Sait, the appellant should have been acquitted.

3. In the alternative Shri Sait submitted that the sentence of RI for 10 years is too serve for the act which has been attributed to the appellant. He submitted that the sentence needs to be modified and reduced to the term undergone by the appellant.

4. Shri Saste, Additional Public Prosecutor, submitted that the order of conviction and sentence is correct, proper and legal because the evidence of the wife of the deceased Laxman was above board and that was sufficient to prove the guilty of the appellant. He further submitted that RI for 10 years is adequate sentence keeping in view the fact that Laxman did on account of the assault at the hands of the appellants. he submitted that the appeal be dismissed.

5. This Court dismissed the submissions advanced by Shri Sait for the appellant that evidence of Nanda is not sufficient to warrant the conviction.

6. Section 134 of the Indian Evidence Act, 1872 (hereinafter referred to as "Evidence Act" for convenience) provides that no particular number of witnesses shall in any case be required for proving any fact. Keeping in view this requirement of the evidence for proving the fact, it is well accepted principle of law that conviction can be safely based on the testimony of single witness. What is required is that the evidence of such witness should be sterling sound and should pass the test of truth if tested on the anvil of human experience. It should be of that quality which a reasonable person of ordinary prudence should believe and by believing it should come to a conclusion that the fact which the prosecution is obliged to prove has been proved. It should be of that quality which would be proving the guilty of the accused beyond reasonable doubt. It should prove that the accused "must" have committed the crime for which he has been charged and for which he faced the trial. It should not be to the extent of "may" or "might". It should be above board and free from infirmities.

7. If the evidence of PW Nanda is so tested, this Court has no hesitation in coming to the conclusion that it is passing the test of truth. IT is sterling sound and above board. Shri Sait has pointed out come discrepancies in her evidence in respect of her testimony on oath and the FIR recorded by the police. Those two contradictions pointed out by Shri Sait, counsel for the appellant, are of minor nature. They are self-explanatory if seen with proper approach and by informing oneself of the situation in which Nanda must have been when she reported the incident to the police. She must have been in panic stricken mind as well as deep down in sorrows. After taking the mean with all happiness her husband had gone to the house of neighbouring person for hearing the songs and she must have been expecting her husband to return back after couple of hours but instead of that, within couple of hours she saw her husband dyeing in a pathetic condition. Thereafter she was required to go to the police station for reporting the incident. How such a woman could be expected to be in coolness of the mind, and comfortably poised to narrate the incident to the police by going to the police station and narrating pinpointedly. Apart from that, the person recording her FIR is also susceptible to commit mistake while recording her version as FIR. Therefore, there are bound to be some variance in two texts of her version, one indicated by the FIR and other by her testimony on oath. In addition to that, it is to be remembered that she was giving the evidence on oath in the Court after lapse of days.

8. Even city dwellers are prone to commit mistakes while narrating the incident on account of the normal sluggish habits of human being in insisting unnecessarily on irrelevant points and forgetting to mention important things. Even the educated persons are prone to commit such mistakes. When that is so, why an illiterate, poor lady coming from lower strata of the society should be blamed as liar for variance on fringes and discrepancies of details. She cannot be permitted to be stamped as a liar for such minor mistakes and her testimony cannot be thrown out when she happens to be giving evidence in respect of the tragic death of her husband.

9. Shri Sait submitted in his submission that her neighbour Dhrupadabi did not support her and, therefore, the evidence of Nanda suffers from this infirmity of getting no corroboration of independent witness. Dhrupadabi was asked questions in the course of cross-examination because the prosecution alleged that she resiled from her earlier statement recorded by the police. By declaring her hostile, the prosecution disowned her as the prosecution witness and pointed out that she had suppressed the things which she disclosed when her statement was recorded during the course of investigation. Fact that she suppressed the true story has been fortified by her conduct because after the said incident she left the locality and went somewhere else to reside. While understanding the situation and the style in which those persons were living and do live, one has to inform himself about the reality of life and the pitiable conditions in which such hapless ladies to stay in the society. From her evidence it seems that she happens to be the solitary lady living in that locality with no male family member living with her. She was living in a slum and as prosecution case shows the appellant was a goon residing in the said slum. Why such a hapless singleton lady would take the wrath of the appellant and his associates by stating against him in the Court. On account of the fear of their lives such persons prefer not to speak anything against such goons. Reality of the life tells many things to them and, therefore, they prefer to play sale. Keeping in view this aspect of unfortunate recent trend of the society, her evidence will have to be discarded as if it is of no use either to the prosecution or to the defence.

10. The Supreme Court has said in number of cases right from 1957 that the testimony of solitary witness if inspires confidence in the judicial mind and is of sterling sound nature, is sufficient for basing a conviction even in murder cases. In the year 1957, the Supreme Court has observed that way in the case of Vadivelu Thevar v. The State of Madras, . Thereafter in the year 1973 again it has been so reiterated in the case of Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra, . Thereafter also same observations have been made by the Supreme Court and it is now well settled law that such evidence can be the basis of conviction and sentence in even murder case.

11. Therefore the trial Court has committed no error whatsoever in accepting the evidence of PW Nanda. Even if for the purpose of cautiousness in approach if the Court seeks for corroboration on material particulars, the evidence of PW Nanda has been corroborated on material particulars by medical evidence when Dr. Shinde has stated in his evidence that he noticed some nail marks abrasions on the body of the deceased corroborating the story of scuffle between them. His evidence shows that there was rupture of spleen, haematoma of kidney on account of the rupture of spleen. There was collection of blood which clotted also the peritoneal abdominal cavity. The evidence of Dr. Shinde shows that the injuries abrasions could have been caused in scuffle and rupture of spleen and haematoma on the kidney could have been caused by fist and kick blows. At this juncture it is pertinent to note that it is the evidence of Nanda that the appellant assaulted her husband deceased Laxman by fist blows and kicks and the blows landed on the chest and abdominal portion which could have caused the rupture of the spleen and haematoma on kidney. The death is the result of the shock and haematoma which was the result of such an assault.

12. Thus, the prosecution has proved that he was none but the appellant who assaulted deceased Laxman by fists and kicks and as a result of that, Laxman was injured in abdomen and it resulted in rupture of spleen and haematoma on kidney. The rupture of the spleen was the cause of collection of blood in the abdominal cavity which caused shock and caused the death. Thus, the prosecution has proved the nexus between the appellant and the death of Laxman. The prosecution proved that the appellant caused the death of Laxman and exactly the same has been the conclusion drawn by the trial Judge.

13. It has come in the evidence adduced by the prosecution itself that there was no previous quarrel or enmity between the appellant and Laxman. It seems to be a quarrel which resulted on account of improper jokes between the deceased and appellant which resulted in a quarrel which resulted in the death of deceased laxman. Thus, the evidence adduced by the prosecution itself amply proves that the appellant caused the death of deceased Laxman without intending to cause his death. It proves further that when he assaulted Laxman, the blows were not given with the intention of causing such bodily injuries to him which appellant was intending to cause and knowing that those injuries were sufficient to cause the death of human being in ordinary course of nature. The prosecution evidence does not also prove that the injuries which were caused by appellant were so imminently dangerous that in all probabilities they were to cause the death of deceased Laxman. Thus, the trial Judge had committed no error whatsoever in coming to the conclusion that the appellant was guilty of culpable homicide not amounting to murder which was punishable in view of Section 304, Part II of IPC. Therefore, there was no necessity for the learned trial Judge to pass the order of conviction convicting the appellant for the offence punishable under Section 304 part II of the IPC read with Section 299. The conviction should have been for offence punishable under Section 304 Part II of IPC simplicitor. Thus, the order of conviction stands to corrected and modified.

14. Now this Court adverts its attention to the point of sentence. Shri Sait for the appellant has pleaded for reduction in sentence. Shri Saste had opposed it. This Court upholds the submission advanced by Shri Sait for the appellant and does not agree with the submissions advanced by Shri Saste for the prosecution for the reasons stated hereinunder. It is to be noted that both, the appellant and the deceased, were coming from the lower strata of the society devoid of any education as the evidence on record shows. The jokes out between them show their lower standard of intelligence and behaviour. This seems to be devoid of any faculty to control their emotions. They both lacked the poise in matureness of the mind. Immediately they came to the quarrel and in the quarrel irrespective of thinking as to what would be the result of the scuffle, they started scuffling with each other as if beasts were fighting. Unfortunately, it resulted in death of Laxman. It was never intended nor though of. Therefore, the sentence has to be commensurate with the gravity of the Act which has been committed by the appellant. At the time his mental attitude, faculty to control emotions and the crudeness in behaviour has to be seen. Therefore, the sentence of RI of 10 years needs to be reduced to the term of sentence which he has already undergone. It would meet the ends of justice. Thus, the order of sentence stands modified. The terms of sentence stands reduced. It stands reduced to the term of sentence which the appellant has undergone.

15. Thus, the appeal stands partly allowed. The order of conviction stands confirmed. However, the sentence stands modified to the term of the sentence which the appellant has already undergone. He be set at liberty if not required for any enquiry, investigation, proceeding or trial. No interference with the other portion of the order touching the disposal of the property.

16. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.