Bombay High Court
Ganpat @ Kishor S/O Shalikram ... vs The State Of Maharashtra Through ... on 8 August, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.447/2014
Ganpat @ Kishor s/o Shalikram Bhange,
aged about 32 years, r/o Hanuman Nagar,
Ward no. 4, Karanja, Dist. Wardha.
(Presently in Jail) .....APPELLANT
...V E R S U S...
The State of Maharashtra through,
PSO PS Karanja (Ghadge),
Dist. Wardha. ig ...RESPONDENT
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Mr. R. M. Daga, Advocate for appellant.
Mrs. T. R. Tiwari, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- AUGUST 8, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. The cause for approaching the appellant before this Court
is his conviction by the learned Sessions Judge, Wardha on
19.06.2014 in Sessions Case No.154/2012. By the impugned
judgment, the appellant is convicted for the offence punishable under
Section 302 of the IPC and is directed to suffer imprisonment for life
and to pay a fine of Rs.1000/- and in default of the same, to suffer
rigorous imprisonment for one month. The appellant is also
convicted for the offence punishable under Section 324 of the IPC
and on that count, it is directed that he shall suffer rigorous
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imprisonment for three months and fine of Rs.520/- and in default to
suffer rigorous imprisonment for 15 days.
2. The prosecution case is as under:
(a) Mahadeo Chafle (PW1) filed oral report, Exh.22 on
01.08.2012. On the basis of the said oral report a crime was
registered against the appellant vide Crime No.69/2012 for the
offence punishable under Section 302, 323 of the IPC. The
printed FIR is at Exh.-23. The gist of the oral report lodged by
Mahadeo Chafle shows that on 01.08.2012, he was sitting near
a Pan shop of Raju Watkar. That time, his wife Sangeeta came
there and informed that the appellant is doing ruckus in front of
their house. Therefore, he, along with his wife, were returning
to their house and that time near the house of one Hari
Menghre, the appellant assaulted on the wife of the first
informant. Therefore, he along with his wife went to the Police
Station for lodging the report. That time, his mother Kusum
and son Ganesh were also accompanying with him. After
lodging the report, when they reached their house at about 8.00
p.m., he noticed his father Manikrao in dead condition and was
having injury on his head. The FIR further states that that time
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his daughter Vanita (PW3) informed him that when the
deceased was sitting on the 'otta' i.e. the platform, the appellant
came and assaulted on him by means of weapon, stick.
(b) The investigation of the crime was entrusted to API
Janardan Salunke (PW5). He conducted the inquest on the
dead body in presence of pancha witnesses. The inquest
panchanama is at Exh.-54. The spot panchanama was drawn
before the investigation was entrusted to API Salunke in
presence of pancha witness Jaishriram Wanjari (PW2). The spot
panchanama is at Exh.-25.
(c) Janardan Salunkhe (PW5) recorded statement of
Vanita. He also seized the clothes of the appellant under seizure
memo Exh.-72. Those clothes were having blood stains. During
the police custody remand, as per the evidence of Janaradan
Salunke, the appellant gave his disclosure statement in presence
of Jaishriram (PW2) and agreed to show the place where he has
thrown the weapon namely; the stick. The said disclosure
statement is at Exh.-27 whereas the recovery panchanama of the
stick which was recovered from a well owned by one Sahadeo
Bhange is at Exh.-28. After completion of the other usual
investigation, charge-sheet was filed.
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(d) As the case was exclusively triable by the Court of
Sessions, it was committed by the learned Magistrate to the
Sessions Court. The Sessions Judge framed the charge against
the appellant. He denied the same and claimed for his trial. In
order to bring home the guilt of the appellant, in all five
witnesses were examined by the prosecution. After the trial, as
observed in the opening paragraph of this judgment, the
appellant was convicted.
3. We have heard Mr. Daga, the learned counsel for the
appellant and Mrs. G. R. Tiwari, learned A.P.P. for the State. Both
the learned counsel took us through the notes of evidence of the
prosecution witness in detail and made their respective submissions
in support of their prayers.
4. Dr. Akshay Dahibele (PW4) has conducted the post
mortem on the dead body of Manikrao. The dead body was brought
to him when he was discharging his duties as Medical Officer at
Rural Hospital, Karanja Ghadge. He noticed surface wounds,
abrasion over left forearm of size 10 cm x 2 cm. When he opened the
dead body, he noticed lacerated wound over the scalp over parietal
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area of size 1/2 inch x 1/2 inch and also another lacerated wound
over parietal area 1/2 inch x 1/2 inch. He also noticed depressed
fracture on frontal bone having size 1 inch x 1 ½ inch. The brain
matter was oozing out of the fractured frontal bone. According to
the autopsy surgeon, the cause of death is due to head injury present
over the frontal bone and parietal bone of the skull. The post
mortem report is at Exh.-37.
From the aforesaid evidence of Dr. Dahibele, we see no
reason to record different finding than recorded by the learned
Sessions Judge that the death was of homicidal nature.
5. The next question is whether the prosecution has proved
that the appellant is the author of the injuries caused to the deceased
Manikrao.
5. The first informant is not an eye witness of the assault on
his father Manikrao. According to the prosecution, Vanita Chafle
(PW3) is an ocular witness. She is the granddaughter of the
deceased. At the time of recording her evidence her age is shown as
11 years. Thus, she is a child witness.
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6. According to Mr. Daga, learned counsel for the appellant,
the evidence of Vanita is required to be discarded because; (i) she is
closely related to the deceased and as such she is an interested
witness and (ii) she being the child witness, reliance cannot be
placed on her testimony.
7. Merely because the witness is closely related to the
deceased, by itself such evidence does not earn disqualification.
However, while appreciating their evidence, the Court should be on
guard and should scrutinize the evidence of such a witness with
caution and care.
Every child witness cannot be discarded as untrustworthy.
The evidence of child witness cannot be rejected if it is found to be
reliable. In respect of the appreciation of the evidence of a child
witness, the Court has to assess the credibility and trustworthiness of
the evidence. Whether a child witness could be believed or not
depends upon the circumstances of each case. In that view of the
matter, we are unable to find any reason in agreeing with Mr. Daga,
learned counsel for the appellant that merely because Vanita is a
child and interested witness, needs to be discarded.
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The Court is required to scrutinize the evidence of Vanita
with care. If, after scrutiny of her evidence it is noticed that her
evidence is trustworthy and reliable then alone it can be made the
basis for confirmation of the conviction.
8. According to the prosecution, Vanita was present on the
spot at the time of the incident. Mahadeo (PW1) the first informant
and father of Vanita, deposed from the witness box that after lodging
the report, the police used to visit his house continuously for 4-5
days. The following admission give by Mahdeo shows that, the
statement of Vanita was recorded after 7-8 days:
"हह महणणह खरह आहह कक, घटनहचयय 7 तह 8 कदवसयननतर पपकलसयननन मलय
मयझयय ममलनलय पपलनस सटह शन मधयह आणणययस सयनकगतलह."
Statement of Vanita under Section 164 of the Cr.P.C. was
also recorded by J.M.F.C Karanja Ghadge on 13.08.2012. Vanita
(PW3) is candid enough to state from the witness box as under:
"(i) "हह महणणह खरह आहह कक मन मयझयय आईवकडलयनचयय सयनगणयय
पपरर मयणह वयगतह."
(ii) हह महणणह खरह आहह कक मयझह वडनल मलय सयनगत असह कक मलय
पपकलसयनय बययन दययचह आहह."
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From the aforesaid, it is clear that this child witness's
evidence is greatly influenced by her father and therefore, it looses its
characteristic of an independent one.
9. In that behalf, even the learned Sessions Judge, in the
judgment impugned has observed that though the learned Magistrate
has observed while recording her statement under Section 164 of the
Cr.P.C. that this witness is tutored one and stopped further recording
of her statement, ought not to have followed the said procedure.
10. According to the evidence of Vanita, after the incident, she
started crying and, therefore her neighbour Vandana Bhange came
there and she narrated the incident to Vandana Bhange. Thus, that
was a first disclosure by this child witness. Examination of Vandana
Bhange would have lent credence to the testimony of Vanita.
However, for the reasons best known to the prosecution, Vandana
Bhange is not examined by the prosecution.
11. Further from the following admission of Mahadeo (PW1),
which is brought on record during the cross-examination, it is really
difficult to accept the prosecution case that at the time of the
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incident, Vanita was on the spot.
"हह महणणह खरह आहह कक, मयझयय घरयजवळ ओटय आहह. हह महणणह खरह आहह
कक, तप ओटय मयतन आकण दगडयनह बनलहलय आहह. हह महणणह खरह आहह कक,
मयझन पतनन आकण ममलगन आलप. आमहयलय मयझह वडनल जकमननवर मत
म
कसतथनत पडलह कदसलह."
From the aforesaid, it is clear that when Mahadeo was
returning from the Police Station, he was accompanied by his
daughter. It is not the prosecution case that Mahadeo is having any
other daughter than Vanita. It is also admitted by Vanita that when
her statement was recorded before the learned Magistrate, her father
was accompanying her.
12. Therefore, though there is no legal impediment to the
admissibility of the evidence of the child witness, in our view in the
present case, the evidence of Vanita has failed to pass the test of
trustworthiness and reliability. From the scrutiny of the prosecution
case vis-a-vis the evidence of Mahadeo (PW1) and Vanita (PW3)
Vanita, one cannot reach to the conclusion that she was present on
the spot and from the quality of the evidence of Vanita, it is crystal
clear that the possibility of tutoring her by her father Mahadeo is not
completely ruled out.
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13. It is brought on record that there is a long standing enmity
between the families of the first informant and the deceased. In fact,
the first informant is facing criminal cases for the offence punishable
under Section 326 of the IPC on the report lodged by the appellant.
In that view of the matter, false implication at the behest of the first
informant is also not completely ruled out.
14. Insofar as the discovery of the weapon namely; stick is
concerned, admittedly, it is recovered from a well owned by one
Sahadeo Bhange which is a place not exclusively controlled by the
appellant. Further, though according to the persecution, the blood
stained clothes of the appellant were sent to the Chemical Analyser,
no Chemical Analyser's report is filed on the record.
15. The appellant is also convicted for the offence punishable
under Section 324 of the IPC for assaulting on the wife of the first
informant. His wife is not examined in the present case. Her injury
report is placed on record and it is at Exh.-39. It shows that Sangita,
wife of the first informant was having blunt trauma over the left
shoulder and blunt trauma on the left hand finger. Sangeeta was
examined by Dr. Akshay Dahibele (PW4). His evidence shows that
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the injury noticed and mentioned in Exh.-39, the injury report of
Sangita, is possible if a person fails on his left side and comes in
contact of the ground.
16. After reapprecaition of the prosecution case, we are of the
view that the prosecution has failed to establish the guilt of the
appellant beyond reasonable doubt. Hence, we pass the following
order.
Criminal Appeal No.447/2014 is allowed.
The judgment of conviction and order of sentence dated
19.06.2014 passed by Sessions Judge, Wardha in Sessions Case
No.154/2012 is quashed and set aside.
The appellant-Ganpat @ Kishor Shalikram Bhange is
acquitted of the offence punishable under Sections 302 and 324 of
the Indian Penal Code. He be set at liberty forthwith, if not required
in any other crime.
The fine amount, if any paid by the appellant, be refunded
to him.
(V. M. Deshpande) (B. R. Gavai)
kahale
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CERTIFICATE
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Uploaded by: Y. A. Kahale. Uploaded On:10.08.2016
