Lingu S/O Dharma Meshram vs State Of Maharashtra
2003 Latest Caselaw 602 Bom

JUDGMENT

R.S. Mohite, J.

1. Heard Shri Somalkar, learned Advocate for the appellant and Shri Patel, learned A.P.P. for the respondent - State.

2. By this appeal, the appellant (hereinafter referred to as accused) Lingu Dharma Meshram seeks to quash and set aside the judgment and order dated 30-11-2001 passed by the 2nd Ad-hoc Additional Sessions Judge, Chandrapur, passed in Sessions Case No. 100 of 2000. By the impugned judgment and order, the accused has been convicted for offences under Sections 326 and 201 of the Indian Penal Code. For the offence under Section 326 of Indian Penal Code, he has been sentenced to suffer R. I. for five years and to pay a fine of Rs. 1000/- in default to undergo further S. I. for one month. For the offence under Section 201 of Indian Penal Code, he has been sentenced to suffer R. I. for one year and to pay a fine of Rs. 300/-, in default to undergo S. I. for 10 days. Both the sentences have been directed to run concurrently.

3. The brief facts of the case are as under :

(a) The accused is the husband of P. W. 3 Janabai and the son of the deceased Dharma. Three months prior to the incident, a quarrel had taken place between the accused and his father Dharma on account of the fact that the accused was demanding some land from his father and his father was not ready to give the same to the accused. On account of such quarrel, the deceased Dharma was staying separately from his son though in the same structure. The accused and his father were not on talking terms. The structure in which both of them were staying separately had a roof of tin sheets.

(b) The incident in question is said to have taken place at about 2.00 P. M. on 4-5-2000. It is the prosecution case that on this date and time, the deceased Dharma was taking out a tin sheet from the roof. Aggrieved by this action of his father, the accused assaulted Dharma with a stick on his head till he died.

(c) It is the prosecution case that while this incident was taking place, several villagers including one Gangaram Bhimrao Kumare, Shamrao Mangam, Ramesh Bandurkar and Sudhakar Chapole tried to intervene but the accused threatened them that if they come to his house, he will break their head and saying so he locked the gate of compound, thus, compelling all the people to go away from there.

(d) That thereafter, the accused Lingu dragged his father from the Courtyard and took him into his house and locked it. Sometime thereafter the accused and his sister Rekha disposed of the dead body by burying the same in their field. That one Bapuji Govind Meshram, who is blood relative of the deceased, came to know about the aforesaid facts from the villagers and hence at 7.00 A.M. on 5-5-2000, he went to the house where the deceased Dharma used to reside. The wife of the accused Janabai told him that the accused had taken Dharama to the hospital at Mandava during the night. The complainant Bapuji Govind Meshram then went to Mandava hospital as also to other hospitals but since Dharma could not be traced, he became suspicious that Dharma might have been killed and his body might have been hidden in the jungle or in a nullah. Ultimately, as the search continued, one Barikrao Meshram resident of Khadki informed the complainant that the dead body of Dharma has been buried in his own field and that it was being eaten by the dogs. On receipt of this information, the complainant Bapuji Govind Meshram along with Police Patil and villagers went to see the spot and found that one leg of the dead body of Dharma had emerged from the field and was being eaten by a dog.

(e) On 8-5-2000, Bapuji Govind Meshram lodged a F.I.R. with the Police Station Korpana and thereupon investigation commenced.

(f) On 9-5-2000, in the presence of the Executive Magistrate and panchas, panchanama of the removal of the dead body came to be conducted on the same date and inquest panchanama in relation to dead body was also prepared. The spot panchanama was further prepared by the police. The police party then proceeded to the house of the accused. There they found Janabai, the wife of the accused, and from the house the police party seized one 47 inches long thick bamboo stick having five nodes, one wooden cot smeared with blood and one old white cotton dhoti.

(g) On 9-5-2000 itself, the body of the deceased Dharma was sent for post mortem. At the time of the post mortem, no external injury on the body was found. However, on internal examination hematoma was found under scalp at the right temporal occipital and parietal region in an area of 10 x 8 cm. There was also depressed fracture over left temporal parietal bone in the area of 3 cm. x 2 cm. and multiple fractures of parietal and occipital bone. The cause of the death as shown in the postmortem is given as "shock as a result of excessive bleeding "head injury"."

(h) After the post mortem, the police seized three sealed plastic bottles containing viscera bearing lac seal of Medical Officer, Gadchandur and clothes of the dead body including torn dhoti, cotton baniyan, red waist string and two small iron keys and a ear prick.

(i) The accused came to be arrested on 10-5-2000 under an arrest panchanama.

(j) On 13-5-2000 when the accused was under police custody, he said to have made a statement which led to the discovery of one pick axe and spade (Tikas) and clothes which he was allegedly wearing at the time of incident which included Lungi and baniyan. The memorandum of the statement of the accused is at Ex. 29 and consequent panchanama relating to the seizure of the article is at Ex. 30.

(k) The Investigating Officer then sent the seized articles to the Chemical Analyser, Nagpur, along with forwarding letters at Exhs. 53 and 54. With his letter at Ex. 55, he requested the Chemical Analyser to ascertain the blood group of the deceased Dharma. He sent certain witnesses to the Executive Magistrate for recording the statements under Section 164 of Criminal Procedure Code. Along with his letter Ex. 64, he sent the bamboo stick seized from the house of the deceased to the Medical Officer requesting him to give his report as to whether the injury sustained by deceased on his head was possible by this stick. By Ex. 64, the Medical Officer gave a positive report that the injuries on head are possible by the same stick. Vide Exhibits 65 and 66, the Chemical Analyser's reports were received and after completion of investigation, the Investigation Officer filed the charge sheet.

4. The matter was committed to sessions and at the trial, the prosecution examined as many as 12 witnesses. The defence lead no evidence. From the record it appears that the defence of the accused was that the deceased was trying to remove the tin of the roof. The said roof was held by stone and while removing the tin, the stone fell on his head causing the injury. It was further the case of the defence that the accused had left the place in the morning by warning the deceased, not to remove the roof and while returning he found that the deceased was lying in the courtyard in the injured condition. Upon the evidence lead and on the statement of the accused, the trial Court proceeded to hear both sides and then passed the impugned judgment and order convicting and sentencing the accused as aforesaid.

5. I have perused the record and impugned judgment and order. The evidence and circumstances relied upon by the prosecution can be summarized as follows :

 (a)     The eye witness account i.e. evidence of P.W. 3 - Janabai Lingu Meshram, who is the wife of the accused and only eye witness who is produced by the prosecution.  
 

 (b)     The evidence of the corroborative witness of P.W. 4 - Gangaram Bhimrao Kumare and P. W. 6 - Nanaji Nanhe, who came to the house of the accused after the incident was over and saw Dharma lying in the courtyard and the accused standing nearby.  
 

 (c)     The fact that the articles seized from the scene of the offence i.e. house of the accused bore stains of human blood.  
 

 (d)    The fact that the relationship between the deceased and the accused were strained, therefore, the accused had a motive to commit the crime.  
 

 (e)     The fact that the body of the deceased Dharma was found buried in his own field after the accused was last seen with Dharma.   
 

 6. The arguments on behalf of the accused were briefly as follows :  
   

(a) The eye witness account should have been totally disbelieved as the eye witness had turned hostile and had not made any statement in examination-in-chief and in her cross-examination which could be favourably used by the prosecution. That as far as two witnesses whom the prosecution used to corroborate their version, their evidence was of no avail to the prosecution as the accused himself has made a statement that at the later point of time that he was standing near the dead body of his father. His mere presence at the spot, in the absence of any other evidence to indicate that he had committed the crime, could be of no avail.

(b) The finding of blood on the stick in question ought to be disbelieved because no external injury was found on the dead body and, therefore, there could not have been any spilling of blood. In . any case, the stick was admittedly not seized at his behest and had been found on the spot of offence. The bamboo stick was an implement which any farmer possess. The fact that the dead body was found buried, by itself could not sustain the charge under Section 326 or Section 201 of Indian Penal Code,

7. The learned Additional Public Prosecutor supported the findings of the trial Court and argued that there was sufficient material for convicting the accused. He pointed out that there was motive to commit the crime and that the accused had been seen standing near the dead body of the deceased Dharma by several villagers and that the finding of human blood on the bamboo stick which was seized and the fact that the dead body of the deceased Dharma was found buried after last seen lying near the accused, were all factors which pointed to the guilt of the accused.

8. I first propose to deal with the eye witness account. A perusal of the deposition of the sole eye witness i.e. P.W. 3 Janabai Lingu Meshram clearly indicates that she did not support the prosecution story. The version given by her was regarding an incident which took place at 7.00 AM and not at 2.00 PM. She has stated that the deceased Dharma started taking out the tin sheets of the roof of the house when the accused was not present in the house. When she tried to obstruct Dharma, he tried to assault her. At that time, a stone on the roof fell on Dharma, due to which Dharma suffered an injury. That later, the accused came to the house and was told about the incident by her. Though they brought Dharma into the house and gave him water, he died and later the villagers buried the dead body of Dharma in the field. In her cross-examination, the version given by her in her police statement was put to her by the prosecution, however, this witness did not admit anything and denied the version given in her police statement. Four major contradictions marked as A, B, C and D were brought on record and could not be proved by the Investigating Officer. On perusal of the impugned order and judgment, it appears that the trial Court placed reliance upon the evidence of this hostile eye witness by name Janabai on an erroneous footing that she had admitted the prosecution version as contained in her police statement. On a plain reading of her substantive evidence in the Court, it is clear that this witness has admitted nothing which would favour the prosecution. The manner in which the evidence of hostile witness is to be considered and tried is by now well settled. The Apex Court has in several judgments laid down that the evidence of a hostile witness need not be discarded in toto and can under certain circumstances even form the basis of conviction. The two leading judgments on this point are; first the case of Anil Rai v. State of Bihar, and another in the case of Balu Sonba Shinde v. State of Maharashtra, .

9. In the case of Anil Rai v. State of Bihar (supra), while dealing with the manner in which the evidence of a hostile witness has to be considered, has been laid down, which reads as under :

"The mere fact that the Court gave the permission to the Public Prosecutor to cross- examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."

10. In the later judgment in the case of Balu Sonba Shinde v. State of Maharashtra (supra), the Apex Court laid down the law in this regard as under :

"......while it is true that declaration of a witness to be hostile does not ipso facto reject the evidence - and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance."

11. From the aforesaid discussion, it is clear that before reliance can be placed on the evidence of a hostile witness, three aspects must be borne in mind by the court and they are as under :

 (a)     The court must look for evidence which is advantageous to the parties;  
 

 (b)     That the Court must be extremely cautious and circumspect before accepting the evidence of a hostile witness; and  
 

 (c)     That it must look for corroboration of the version from other reliable evidence.   
 

12. In my view, where the witness is called by the prosecution and is ultimately treated as hostile, the portions of the evidence which can be said to be advantageous by the prosecution can either be a version in consonance with the prosecution case given in the examination-in-chief or in the cross-examination or re-examination of the witness. If there is no such material in the evidence which favours the prosecution version then obviously no part of the evidence of a hostile witness can be used to base a conviction.

(a) When a witness is one produced by the prosecution, a mere contradiction with his police statement, even if proved, cannot be said to be an admission of the prosecution case if the contents of such contradiction are denied in the substantive evidence. Such a contradiction obviously cannot be said to be evidence which is advantageous to the prosecution. In the present case, I find that there is no admission of whatsoever nature to support the prosecution version and, therefore, the evidence of the eye witness Janabai could not have been used for any purpose by the prosecution and can be of no avail to the prosecution.

(b) As regards the corroborative evidence, I find that the substantive evidence of P.W. 4 and P. W. 6 do not carry the prosecution case any further because they arrived at the spot much later in point of time and have not seen the incident. They merely state that they arrived and saw the injured Dharma lying in the courtyard and the accused standing nearby. This fact is infact admitted by the accused in his 313 statement. The proof of this fact, however, does not further the prosecution case that it was accused who had assaulted the deceased Dharma.

(c) Insofar as the finding of blood on the stick is concerned, the prosecution could not prove that the blood found on the stick was of the blood group of deceased Dharma. Apart from this, since there was no external injury on the body of the deceased and since the post mortem notes do not indicate that the blood was oozing out from any part of the body of the deceased Dharma, it is difficult to imagine as to how the blood came on to the stick. Besides this, stick in an unsealed condition had been taken through a circuitous route and is said to have passed through many hands. It was first sent to Medical Officer on 18-5-2000 for his opinion and after receiving the opinion on 24-5-2000, it was sent to Chemical Analyser. There is a mistery as to what happened to the stick thereafter as it appears to have vanished. It was never produced in the Court in the course of the trial. It may be stated that insofar as the clothes of the accused which are said to have been worn by him at the time of incident, no blood has been found on the clothes. That leads us to the motive and the fact that the accused may have concealed the dead body because he was last seen near the dead body.

13. In the facts and circumstances of the case, in my view, it would be unsafe to confirm the conviction on these two circumstances. Firstly, the motive was an old grudge which went back to quarrel which took place three months prior to the incident. It may be that the accused might have concealed the dead body but that might be on account of the apprehension that he might be implicated in the case. This aspect of the matter would also explain from the fact that the accused was not found for a few days from the date of incident. In overall view of the matter, it would be unsafe to base the conviction on the evidence on record and I am inclined to give the benefit of doubt to the accused.

14. In the result, criminal appeal is allowed. The impugned judgment and order dated 30-11-2001 passed by the 2nd Ad-hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 100 of 2000 and the conviction and sentence of the accused is quashed and set aside and the accused is acquitted of all charges. The accused will be entitled to refund of fine, if paid.