Bombay High Court
Ashok S/O Ankalu Jangam (In Jail) vs The State Of Maharashtra, Through ... on 2 December, 2016
Bench: B.P. Dharmadhikari
Judgment apeal56.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 56 OF 2015.
Ashok s/o Ankalu Jangam,
Aged about 23 years, Occ - Cultivation,
R/o. Vyankatapur, Tah. Sironcha
District Gadchiroli
(Presently in Central Jail, Nagpur) ....APPELLANT.
VERSUS
The State of Maharashtra,
through P.S., P.S.O., Bamni,
District Gadchiroli. ....RESPONDENT
.
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Mr. R.M. Daga, Advocate for the Appellant.
Mr. J.Y. Ghurde, A.P.P. for Respondent.
------------------------------------
CORAM : B.P. DHARMADHIKARI
AND S.B. SHUKRE, JJ.
Date of Reserving the Judgment : 18.11.2016.
Date of Pronouncement : 02.12.2016.
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JUDGMENT. (Per B.P. Dharmadhikari, J)
1. Judgment and order of conviction dated 16.10.2014, delivered by
the Sessions Judge, Gadchiroli in Sessions case No. 73 of 2013, convicting
accused no. 1 -Ashok for the offence punishable under Section 302 of the
Indian Penal Code with life imprisonment and fine of Rs. 1000/- or in
default to S.I. of one month is, challenged by Ashok in this appeal. Accused
no. 2 - Banayya, accused no. 3 - Sunil and accused no. 4 - Shriniwas are
acquitted by it of offences under Sections 302, 109, 114 and 212 of Indian
Penal Code.
2. We have heard Shri R.M. Daga, learned counsel for the appellant
and Shri J.Y. Ghurde, learned A.P.P. for the respondent - State.
3. Prosecution story is that father of deceased Sadwali by name
Durgayya, reported the murder of his son by appellant vide report at Ex. 61
due to previous enmity. Sadwali was police patil of the village Vyankatapur,
where he was killed. Accused Banayya had provided new set of clothes to
Ashok and concealed Ashok's blood stained clothes at his (Banayya's) house.
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4. Shri Daga, learned counsel submits that report allegedly given or
narration therein is not proved to be of Durgayya who gave it in Telgu, and
it was translated by somebody into Marathi. Hence, report itself to police is
not established. Moreover, Durgayya did not and could not have seen the
incidence. Similarly, the alleged eye witnesses did not know court language
but, deposed in Telgu. Trial Court took assistance of an interpreter for
getting it translated into Marathi, and thus, the evidence has been recorded
in Marathi language. As no oath was given to the interpreter as per
provisions of Criminal Manual in form 3, the depositions are liable to be
discarded. Statements of these witnesses to police are not only delayed but,
also are in Marathi language and hence, raise serious doubt about the
independence and correctness thereof. Eye witnesses are also not
independent and in cross examination, changed the spot of occurrence. Trial
Court itself has discarded recovery of appellants cloth under Section 27 of
the Evidence Act by co-accused Banayya. As police statements of these
witnesses are in other language, their depositions in court lose importance.
By inviting attention to the facts on record his effort is to demonstrate that
Sadwali, a police patil was killed by his enemies i.e., Naxal supporters and
workers. We will refer to his other contentions at appropriate place.
5. Learned A.P.P. has pressed into service provisions of Sections 277
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and 278 Criminal Procedure Code with two judgments of the Hon'ble Apex
Court to submit that grievance about role of the interpreter or doubt about
the correctness of the translations is misconceived and by way of an after
thought. Such an objection needed to be raised at the earliest before the
Trial Court and appellant can not be permitted to urge it at this belated
stage. Spot of occurrence is not altered by any witness and all of them are
consistent. The guilt of appellant is established beyond reasonable belief.
Shri Ghurde, learned A.P.P. has rebutted all the contentions of Shri Daga,
learned counsel for the appellant and prayed for dismissal of Appeal.
6. Learned Counsel for the appellant has pointed out that oath was
never administered to the interpreter and still, translation by him of telgu
deposition has been acted upon by the Trial Court. These witnesses do not
know "Marathi" and still their police statements appear in Marathi. Hence,
their evidence in chief can not be acted upon at all. Learned A.P.P. has
pointed out that no such contention is raised before the Trial Court, and
there is no ground on these lines in this Appeal.
7. Law on the point is in Sections 277 and 278 of the Criminal
Procedure Code, Court has to record evidence in language of court if
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witness deposes in that language. If he deposes in other language, it can be
recorded in that language, if possible. Otherwise, its true translation in the
language of the court is to be prepared at same time as witness continues to
depose. Procedure to be followed after recording is in Section 278. Said
evidence needs to be read over to witness in the presence of the accused, if
in attendance, or of his pleader, if he appears by pleader, and, if necessary,
can be corrected. If any witness denies the correctness of any part of the
deposition when the same is read over to him, the Court may, instead of
correcting the evidence, make a memorandum thereon of the objection to it
by the witness and add such remarks as it thinks necessary. The provisions of
Section 278(3) are important in present matter. Where the record of the
evidence is in a language different from that in which it has been given and
the witness does not understand that language, the same is to be interpreted
to him in the language in which it was given, or in a language which he
understands. In earlier i.e. old Criminal Procedure Code (Act V of 1898),
these provisions were in Section 360 therein.
8. Here the help of the translator or interpreter is taken by the Trial
Court for recording the depositions of PW-2 Pocham Atram and PW-7
Chandrayya Pandram, the two eye witnesses. The third eye witness PW-8
Somayya Naitam has deposed in the language of Court and interpreter was
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not employed for him to understand his deposition.
Hon'ble Apex Court in Mir Mohd. Omar v. State of W.B.,
(1989) 4 SCC 436, at page 440 observes -
"15. The object of Section 278 is two fold: firstly to ensure
that the evidence of the witness as recorded is accurate and
secondly to give the witness concerned an opportunity to
point out mistakes, if any. If the correction suggested by the
witness is one which the Judge considers necessary he will
make it at once as required by sub-section (1) but if the
correction is such that the Judge does not consider necessary,
sub-section (2) requires that a memorandum of the objection
be made and the Judge add his remarks, if any, thereto. In
the present case, the learned trial Judge corrected all the
typographical errors which he considered necessary but
refused to carry out the substantive part of his deposition.
The section is not intended to permit a witness to resile from
his statement in the name of correction. The learned trial
Judge was justified in refusing to effect the change which he
thought was intended to change the earlier version. He did
not make a memorandum as the correction slip was
unsigned and was not properly filed. Now, since the
correction slip as well as the remarks of the learned trial
Judge have become a part of the record, nothing more need
be done as the provisions of Section 278 are substantially
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complied with."
Hon'ble Apex Court in Bhagwan Singh v. State of Punjab,
1952 SCR 812 : AIR 1952 SC 214 : 1952 Cri LJ 1131 observes -
"17. Had the witness traveled beyond the statements embodied
in the first information report, objection to the use of anything
not contained in it would have been understandable, though to
be effective such objection would ordinarily have to be raised
at the trial, but as the witness does not do that, there can be
no objection on the score of prejudice. It is to be observed that
the Explanation to Section 537 requires a Court to take into
consideration the fact whether any objection on the score of
irregularity could have been raised at an earlier stage."
"29. But even if the fact be true that the deposition was not
read over, that would only amount to a curable irregularity
and, as the Privy Council observed in Abdul Rahman v. King
Emperor9 in the absence of prejudice which must be disclosed
in an affidavit which shows exactly where the record departs
from what the witness actually said, there is no point in the
objection. The object of the reading over prescribed by Section
360 of the Code of Criminal Procedure is not to enable the
witness to change his story but to ensure that the record
faithfully and accurately embodies the gist of what the witness
actually said. Therefore, before prejudice can be substantiated
on this score, it must be disclosed by affidavit exactly where
the inaccuracy lies."
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9. Thus, the need to raise proper objection at the earliest possible
stage in such situation is apparent. Accused also has to bring on record the
prejudice suffered by him. The arrest form of accused Ashok shows that he
understands three languages viz. Marathi, Hindi and Telgu. Hence, the
deposition of eye witnesses PW-2 Pocham Atram, PW-7 Chandrayya
Pandram in Telgu may have created difficulty for the Court while recording
it, but, neither accused Ashok nor his counsel have raised any objection to
the translation or procedure followed. When these witnesses were examined
in chief or cross examined, no protest was lodged and attention of Trial
Court was not drawn to the alleged omission to administer oath to the
interpreter. No body doubted integrity of said interpreter. Omission or
contradictions are also in the context of their police statements which are in
Marathi. Had the accused or their respective Counsel had any problem or
doubt about the interpreter, they could have effectively cross examined these
witnesses and the investigating officer. Had such an objection been raised at
the earliest possible opportunity, the course could have been corrected by
the Trial Court. We do not mean that the contention of present nature can
not be raised in appeal but, then, here we are satisfied that it is by way of
afterthought and not accompanied with any proof of prejudice. His arrest
form Ex. 83 prepared on 11.1.2013 mentions that he speaks Marathi, Hindi
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and Telgu languages. It is obvious that he not only understood what these
witnesses deposed in Telgu, but, also its translated version. It is nobody's
case that the Trial Court has not followed procedure under Section 278 of
Criminal Procedure Code. Hence, in present facts arguments on absence of
oath to the interpreter are clearly erroneous and unsustainable. No
prejudice whatsoever is suffered by Ashok.
10. PW-2 Pocham Atram, PW-7 Chandrayya Pandram and PW-8
Somayya Naitam are the three eye witnesses. As the appellant has raised
some dispute about the language in which these witnesses deposed and
oath administered or the role of the interpreter, we find it proper to begin
with consideration of evidence of PW-8 as Court has not taken assistance of
the interpreter while recording his evidence.
11. PW-8 Somayya Naitam is the owner of a panshop where the eye
witnesses were sitting. He states that between 3.00 to 3.30 PM, he saw
accused Ashok assaulting deceased Sadwali with knife and cut his neck.
Ashok then ran away, and after that complainant Naresh Sabmek came to
see Sadwali. He also went with him to see Sadwali. He also deposes that
PW-7 Chandrayya Pandram had also come to his shop then. His cross
examination reveals that his shop is by the side of road in weekly market
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and beyond the road, Sadwali had his house. Eye witnesses and others were
sitting at his shop when the incidence took place. He admits that deceased
was on hit list of the Naxalites and once Shriniwas Kotrange was held by
them under mistaken impression that he was police patil Sadwali. When the
villagers informed Naxals about their error, Shriniwas was let free. He
admits that Naxals had come when he was in his shop but was not aware
whether after seeing them, Sadwali ran away.
12. He himself and brother of wife of Sadwali had gone to see the
dead body. Other relatives arrived thereafter. Weekly market is behind his
pan shop and beyond that the Gram Panchayat and Anganwadi (play
school) is located. Beyond this there are the houses and then there is bus
stop. He denies the suggestion that he was on cross terms with the accused.
Reasons for any enmity or the difference between him and accused are not
brought on record by the accused. No omissions or improvements surface
and his cross examination does not dilute his assertion on oath in any
manner.
13. PW-7 Chandrayya Pandram understands only Telgu, He deposed with
the assistance of interpreter Shri Chaudhari. Oath, if any, administered to
interpreter Shri Chaudhari, is, not reflected on record but, the oath
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administer to PW-7 is expressly recorded. Accused was represented by the
competent lawyer and "no objection" was raised to the procedure followed.
He speaks of his presence at pan shop, old dispute between accused and
deceased and assault by Ashok on Sadwali with knife on abdomen. He states
that thereafter accused Ashok cut Sadwali's throat by knife. Sadwali fell
down on ground and died. Ashok then went to his house. His cross
examination shows that pan shop is on one side of road while the residence
of Sadwali was on other side. Sadwali was of his caste. This witness states
that he informed that first there was blow on abdomen of Sadwali, again
there was second blow on abdomen and then the throat was cut. He could
not explain why it did not figure in his police statement. His police statement
is recorded two days after the incidence. Its perusal reveals that he mentions
repeated blows in it. Thus suggestion given to this witness is factually wrong
and shows lapse on part of A.P.P. The effort to bring omission on record
could not have been allowed in this manner. Multiple wounds of knife on
body of deceased are not in dispute. Again no enmity between him and
accused is pointed out. Incidence has taken place on 21.12.2012 and his
statement is recorded on 22.12.2102. Thus, alleged delay or not
administering the oath to the interpreter is not even urged to have resulted
in any prejudice to the accused.
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14. Coming to the evidence of PW-2 Pocham Atram, grounds of delay
or not administering the oath to the interpreter are common but, there is no
attempt to demonstrate any prejudice to the accused, thereby. There is no
reason as to why this witness should falsely implicate the accused. Learned
Counsel also highlights that this witness did act as Panch on inquest on day
of incidence itself, but, his statement as eye witness was recorded belatedly.
His statement is recorded on 22.12.2012 i.e., on next day by police. His
deposition on incidence reveals that after Sadwali left the pan shop, accused
Ashok went behind him, caught hold of his neck and assaulted him by knife.
Sadwali fell down. He was not aware of the reason of attack. PW-2 claims
that frightened, he left the spot. In cross examination, he accepts that
father of Sadwali is his real brother. He also accepts the geography of the
area. He asserts that Sadwali was not arrested near pan shop, but, by the
side of road. No omissions or improvements are brought on record in his
cross examination. Learned counsel Shri R.M. Daga has urged that this
witness changes the spot of attack on Sadwali. We fail to notice any such
statement of fact. On the contrary his deposition appears to be in tune with
other eye witnesses.
15. Printed FIR at Ex. 103 shows that intimation was received at police
station on 16.55 hrs. Time of spot panchanama Ex. 53 is 17.00 to 17.40 hrs.
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and inquest is drawn in village Bamni between 17.10 to 17.50 hrs. It is un-
exhibited document. If PW-2 Pocham was not available in village
Vyankatapur i.e., at spot on that day and he was with dead body of his
nephew. There is, thus no delay in recording his statement.
16. Dhananjay Farate, PW-12 is the investigating officer who has not
been cross examined either on delay or then on any facet of prosecution by
the appellant. Similarly, due to these eye witnesses, large number of injuries
on deceased, their existence on front, back or on lateral portion, size/depth
thereof and various contentions based upon it by taking clue from the PM
report Ex. 95 and deposition of PW-11 Dr. Mayur Jiwane are too technical
and do not advance the case of accused. The submission that deceased was
on radar of the naxalites and they eliminated Sadwali is not substantiated at
all.
17. The spot is duly proved and blood group "A" of deceased is found
on spot. Ex. 51 CA report shows the blood group of deceased and connects
him to spot. Effort of appellant to create confusion about the spot is
misconceived and unsustainable.
18. Though there are some arguments on seizure of clothes of appellant,
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the trial court itself has not accepted it and hence, we do not find it
necessary to dwell upon it. The witnesses on discovery of knife by appellant
have turned hostile but the Trial Court has relied upon evidence of the
investigating officer PW-12 Shri Farate to accept it. Moreover, CA report
mentions blood of group "A" on knife and also reveals that deceased Sadwali
was having blood group "A". Doctor proving the postmortem has also
connected the weapon with the injuries.
19. Deposition of father of deceased Durgayya (PW-4) who is reporter
at Ex. 61 is not very decisive here. He has not seen the incident at all. His
report is relevant only to note the initiation of investigation. Whether he is
lying or really saw Ashok running away after assaulting his son, therefore,
hardly matters. His report is translated by one Mahesh Kumar as endorsed
upon it. In deposition, he states that one Kulmeth Samayya had translated it.
However, this does not have any impact on merits of the matter.
20. Material looked into supra by us does not show any error by the
Trial Court in convicting the appellant Ashok. Alleged enmity or the naxal
angle is totally irrelevant here. No case for interference is made out. We
therefore maintain the judgment and order of conviction delivered on
16.10.2014 by the Sessions Judge, Gadchiroli in Sessions case no. 73 of
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2013 convicting the appellant Ashok s/o Ankalu Jangam for offence under
Section 302 of the Indian Penal Code and dismiss his Appeal. No costs.
JUDGE JUDGE
Dragon/Rgd.
