Bombay High Court
Smt. Sheela Ravindra Nibrad And ... vs The State Of Maharashtra, Through ... on 23 December, 2016
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 60 OF 2015
1] Smt. Sheela Ravindra Nibrad,
Aged 25 years,
2] Raju Maroti Wasekar,
Aged 25 years,
Both residents of Krushnapur, Taluqa Wani,
District Yavatmal. ... APPELLANTS
Versus
The State of Maharashtra,
through Police Station Officer,
Shirpur, District Yavatmal. ... RESPONDENT
....
Shri R.D. Dhande, Advocate for the appellants.
Shri M.J. Khan, Additional Public Prosecutor for respondent.
....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE OF RESERVING JUDGMENT : NOVEMBER 30, 2016.
DATE OF PRONOUNCEMENT : DECEMBER 23, 2016.
JUDGMENT : (Per Kum. Indira Jain, J.)
This appeal is preferred by Appellant - Accused against
the judgment and order dated 29-11-2014, passed by the learned
Ad hoc Additional Sessions Judge, Kelapur, in Sessions Trial No.
22 of 2013. By the said judgment and order, learned Additional
Sessions Judge convicted the Appellants for the offences
punishable under Sections 302, 201 and 203 read with Section 34 of
the Indian Penal Code and sentenced the accused as under :-
Sr. Conviction under Punishments
Nos Sections.
1 302 r/w 34 of IPC Imprisonment for life and fine of
Rs.2000/- i/d R.I. for 6 months each.
2 201 r/w 34 of IPC R.I. for 3 years and fine of Rs.1000/-
i/d R.I. for 3 months each.
3 203 r/w 34 of IPC R.I. for 1 year and fine of Rs.500/- i/d
R.I. for 2 months each.
Learned Additional Sessions Judge directed that all the
sentences of imprisonment shall run concurrently.
2] For the sake of convenience, we shall refer Appellants in
their original status as Accused nos.1 and 2 as were referred before
the trial Court.
3] Prosecution case briefly stated is as under :-
i] Deceased Ravindra Nibrad was husband
of Accused no.1-Sheela. They were residing at
Krushnapur, Taluka Wani, District Yavatmal. The
couple had two sons Vishal and Vikram.
ii] Incident occurred on 22-02-2013 between
10.00 pm and 11.30 pm. After dinner Accused no.1-
Sheela and her both the sons went to sleep at about
10.00 pm. Ravindra was outside the house. At
around 11.00 - 11.30 pm. Sheela woke up and
noticed blood stains on the adjoining cot. She came
out of the house and saw her husband Ravindra
lying near the fencing in injured condition in a pool of
blood. She also saw a big knife in the left hand of
Ravindra. Sheela called the neighbourers. They
found Ravindra dead. Accused no.1 reported the
incident to Police Station Shirpur. She stated in the
said report that some unknown person had
committed murder of her husband. On the basis of
report of Accused no.1 Crime No.11 of 2013 was
registered against unknown person. API-Mukund
Kulkarni (PW-8) took over investigation.
iii] Investigating Officer visited the spot and
recorded spot panchanama in the presence of
panchas. Knife found in the left hand of deceased,
blood stained pieces of Newar, blanket, bed sheet,
simple earth and earth mixed with blood came to be
seized under seizure panchanamas.
iv] API Kulkarni then drew inquest
panchanama and sent the dead body for
postmortem to Rural Hospital, Wani through Police
Constable Sanjay, B.No.1092 of Police Station
Shirpur.
v]
Dr. Madhuri Kamble was Medical Officer on
duty. On 23-02-2013 she performed postmortem at
11.45 am. Multiple injuries were found during
postmortem. Medical Officer opined cause of death
due to hemorrhagic shock due to injury to heart.
vi] Investigating Officer interrogated brother
and father of the deceased. They expressed
suspicion on informant Sheela (Accused no.1). It
was revealed during investigation that Accused no.1
had extra-marital relations with Accused no.2 Raju
Wasekar. This was not liked by Ravindra. Witness
Dhanraj Madavi was interrogated. After recording
statements of witnesses it came to the light that
Accused no.1 Sheela with the help of Accused no.2
Raju Wasekar committed murder of Ravindra. Both
the Accused were arrested and clothes on their
person were seized. They were referred for medical
examination and their blood samples were collected.
vii] The clothes of the deceased and viscera
brought from the hospital produced by Police
Constable Sanjay were seized and seizure memo
was accordingly drawn.
viii] On 25-02-2013 statement of Vishal (PW-4)
a 14 year old son of the deceased and Accused no.1
was recorded. From the statement of Vishal
investigating agency could come to know that he
was an eye witness to the incident. Statement of
Vishal under Section 164 of the Code of Criminal
Procedure was recorded on 27-02-2013 by the
Judicial Magistrate First Class, Wani.
ix]
A letter was issued to M.S.E.D.C.L. to
furnish information about existence of electric supply
at the time of incident. In response to the letter it
was informed by the Authority that at the relevant
time there was electricity supply to the place of
occurrence. Map of spot was prepared by Tahsildar
at the request of Investigating Officer. Call Details
Record came to be collected. Seized muddemal
was sent to Forensic Science Laboratory. During
investigation statements of several other witnesses
were recorded. On completing investigation
chargesheet was filed before the Judicial Magistrate
First Class, Wani, who in turn committed the case
for trial to the Court of Sessions.
4] Charge came to be framed against the Accused under
Sections 302, 201, 203 read with Section 34 of the Indian Penal
Code vide Exhibit-8. They pleaded not guilty to the charge and
claimed to be tried. Their defence was of total denial and false
implication.
5] Accused no.1 raised specific defence that she has been
falsely implicated by her brother-in-law Suresh. Witness Dhanraj
was demanding two acres of agricultural land from her for accident
of his sister. She refused to give the land to him. There was
dispute over agricultural land between her and her brother-in-law
and since she did not succumb to their pressure and demands they
made false statements and compelled her son also to give false
information to Police.
6] Prosecution examined in all eight witnesses to substantiate
the guilt of accused. Accused examined two witnesses in support of
their defence. On going through the evidence adduced by
prosecution and the defence, learned Additional Sessions Judge
convicted and sentenced the Appellants as stated in paragraph no.1
above. Being aggrieved thereof accused have preferred this
appeal.
7] We have heard the learned Counsel for Appellants and
learned Additional Public Prosecutor for State. Considering the
facts and circumstances of the case, submissions made on behalf of
parties, reasonings recorded by trial Court and evidence on record,
for the below mentioned reasons we are of the opinion that
Appellants are responsible for committing murder of Ravindra and in
furtherance of their common intention caused evidence of the
offence to disappear with intention to screen themselves from legal
punishment and also knowingly gave false information to Police
with a view to misdirect and mislead the investigating agency.
8] Conviction of Appellants is mainly based on -
(i) ocular evidence of a child witness Vishal (PW-4),
(ii) circumstantial evidence brought through the evidence
of Dhanraj (PW-5),
(iii) recovery of blood stained clothes from the person of
accused,
(iv) seizure of blood stained knife from the spot,
(v) factual position noticed on the spot, and
(vi) report lodged by accused no.1 against an unknown
person thereby misleading the investigating agency.
9] Vishal Ravindra Nibrad (PW-4) is a child witness. Incident
occurred on 22-02-2013. Evidence of Vishal was recorded in the
Court on 25-03-2014. That time he was 14 years old student and
selling vegetables.
10] On appreciation of evidence of child witness learned
Counsel for Appellants submitted that evidence of child witness
should be accepted with great caution and general principle is that
testimony of such a witness is to be corroborated by independent
evidence. In support of his submissions learned Counsel for
Appellants placed strong reliance on :-
1] Panchhi: National Commission For Women v State of
Uttar Pradesh [(1998) 7 SCC 177]
2] State of Uttar Pradesh v Ashok Dixit [(2000) 3 SCC 70]
3] Shivasharanappa & Others v State of Karnataka & Ors
[2013 (5) SCC 705]
11] The authorities at serial nos. 1 and 2 relied upon came to
be referred in the decision of the Hon'ble Supreme Court in
Shivasharanappa & Others v State of Karnataka & Ors (supra).
12] In response, learned Additional Public Prosecutor states
that there is no inherent defect in the evidence of child witness
Vishal (PW-4). Nothing could be brought on record to indicate any
possibility of child witness being tutored. The testimony of child
witness is fully substantiated by the incriminating circumstances
established through evidence of Dhanraj (PW-5), seizure
panchanamas of the blood stained clothes of accused and weapon
and in such circumstances conviction can be based solely on
testimony of Vishal (PW-4). In support thereof learned Additional
Public Prosecutor relied upon the decision of the Hon'ble Supreme
Court in Suryanarayana v State of Karnataka [2001 CRI. L. J.
705 (SC)] and submits that facts of the case before the Hon'ble
Supreme Court was almost identical to the facts in the present
matter.
13] We have gone through the above authorities referred by
the learned Counsel for the parties. Though it is an established
principle that child witnesses are risky as they are liable to be
influenced easily, shaped and moulded, but it is also an accepted
norm that if after careful scrutiny of evidence of child witness the
Court comes to a conclusion that it is truthful and believable, totally
free from tutoring then there is no obstacle in anyway not to rely
upon the evidence of child witness.
14] In the case on hand before recording evidence of Vishal
(PW-4) learned Additional Sessions Judge ascertained that witness
understands the significance of oath and thereupon administered
him oath. It appears from the evidence of Vishal that he was
residing with father, mother and brother Vikram at Krushnapur. His
evidence shows that at 5.00 pm he returned home from school. His
parents brought vegetables from the field. Alongwith his brother
Vikram he went to sell vegetables and after selling vegetables
returned home. They had meals. Thereafter his father slept on the
cot. They were watching T.V. Then he and his brother also went to
sleep on the cot. He states that his mother went outside the house.
She again came in. She was followed by Raja (Raja Wasekar).
His mother stood towards face of his father. Raja stood near the
cot of father. His mother put a black bed sheet over the face of his
father and Raja stabbed Suri (knife) in the chest of his father. He
stated that he started weeping. His mother and Raja told him that if
he narrates the incident to anyone they would kill him. Thereafter
his mother and Raja lifted his father, took him out and left him near
the outer gate (Kharadi). His mother started weeping and said that
somebody had killed his father. Neighbourers gathered there.
Police also arrived on the spot on the same day. He narrated the
incident to Police.
15] Commenting upon the evidence of child witness Vishal
learned Counsel for Appellants contended that statement of Vishal
under Section 161 of the Code of Criminal Procedure was recorded
after two days and his statement under Section 164 of the Code
was recorded after four days. He submits that no satisfactory
reason is given for delay in recording statement of such an
important witness. According to learned Counsel reason given by
Investigating Officer that child was not traceable is absolutely false
as he was residing with Suresh (PW-1) at the relevant time.
16] The next submission on behalf of Appellants is that
statement of Vishal (PW-4) was recorded in the Police Station.
Investigating agency did not bother to go to his house. It is stated
that Suresh (PW-1) must have taken him to Police Station and in
this circumstance possibility of tutoring the child witness is not ruled
out. Learned Counsel for appellants submitted that reliance cannot
be placed on the sole testimony of Vishal (PW-4) in the absence of
independent corroboration.
17] So far as delay in recording statement is concerned
learned Additional Public Prosecutor relied upon the decision of the
Hon'ble Supreme Court in Ranbir and others v State of Punjab
[AIR 1973 Supreme Court 1409] and submitted that delay does
not necessarily make the evidence untrustworthy. It is contended
that at the relevant time Vishal was with his maternal uncle and this
completely overrules the possibility of tutoring by Suresh (PW-1).
18] It is pertinent to note that statement of Vishal under Section
164 of the Code of Criminal Procedure was recorded by the learned
Judicial Magistrate First Class. Before the Magistrate Vishal
disclosed the incident in the same manner as disclosed by him to
Police at the time of recording his statement under Section 161 of
the Code. On meticulous scrutiny of evidence of child witness
Vishal we find no material improvements, contradictions or
omissions. Certain facts stated by Vishal like watching T.V. and
date of incident as 23-02-2013 deposed by him in his evidence were
not disclosed to Police and to the Magistrate in his statement. The
omissions brought are not the material omissions and do not go to
the root of prosecution case.
19]
So far as manner of incident is concerned evidence of
Vishal is throughout consistent. Nothing substantial could be
elicited in his piercing cross examination to disbelieve his testimony.
He is the real son of accused no.1 and the deceased. He has no
reason to grind an axe against his own mother. If he was to tell a lie
or he was tutored he would not have fairly stated that after the
incident his mother started weeping and she was saying that some
unknown person killed his father.
20] In the case of Suryanarayana v State of Karnataka
(supra) deceased had developed intimacy and extra marital
relations with the Appellant as a result of which she gave birth to a
male child. After birth of child differences arose between Appellant
and the deceased. Appellant suspected the deceased having
illegal connections with other persons. She was subjected to
cruelty. As she was unable to bear the cruelty she left the
residence of Appellant eight days prior to her death and started
residing in the house of brother. On the fateful day deceased
accompanied by a female child of about four years of age went to
village tank in the afternoon for washing clothes. While she was
washing clothes Appellant came and stabbed the deceased with
knife inflicting injuries on various parts of the body. The child
rushed to the house and informed her parents about the occurrence.
No inherent defect was pointed out in her testimony. Evidence of
child witness was corroborated by other material particulars. In
these circumstances it was held by the Hon'ble Supreme Court that
conviction solely on testimony of child witness is sustainable.
21] In the present case prosecution has examined in all eight
witnesses. Dhanraj (PW-5) is another star witness. Dhanraj stated
that on the day of incident he returned home at 7.00 pm. After
meals he went to sleep. He received a phone call from accused no.
2 Raja. Accused Sheela spoke to him on phone. She asked her to
come to her house for some work. He went to the house of Sheela.
Dhanraj then stated that accused Raju and Sheela were present
outside the house. Ravindra was sleeping inside the house on a
cot. Sheela asked him for help to catch hold her husband so that he
can be killed. He refused for the same and left the spot.
22] Then while he was returning after answering nature's call
accused Sheela caught hold his hand and asked him that he should
assist in killing her husband. He refused for the same and left the
house. When he left the spot Sheela and Raju were present there.
In the morning he came to know that Lahu Nibrad was murdered.
He stated that Ravindra was also known by nickname as Lahu.
23] In the cross examination an attempt was made to assail
the testimony of Dhanraj (PW-5) on the ground of a dispute
regarding agricultural land between Sheela, Ravindra and witness
Dhanraj. According to Appellants Panchfula sister of Dhanraj
received injuries in an accident caused by Ravindra. It is contended
that as sister got injured in an accident Dhanraj was demanding two
acres of agricultural land for Panchfula. It is the defence of accused
that due to previous dispute Dhanraj had reasons to side the
prosecution.
24] The learned Counsel for Appellants submitted that
presence of Dhanraj is doubtful as the entire family was present
and he did not timely inform the Police about such a serious plan
allegedly disclosed by the accused. If we look into the testimony of
Dhanraj (PW-5) it is apparent that his evidence does not suffer from
any material infirmity. He denies the previous enmity. We find no
reason to disbelieve the evidence of Dhanraj (PW-5) in the absence
of evidence to the contrary.
25] From the evidence of Dhanraj (PW-5) prosecution could
succeed in establishing the presence of accused no.2 Raju and
assistance sought by accused No.1 Sheela to kill her husband.
Testimony of witness Dhanraj is not shattered in the cross
examination. Through his evidence prosecution has brought on
record clinching circumstances clearly establishing common
intention of both the accused persons to kill Ravindra.
26] The next circumstance relates to seizure of blood stained
clothes of the accused. C.A. report Exhibit-83 shows that clothes of
accused no.1 were having blood stains of group "A". So far as
clothes of accused no.2 are concerned results remained
inconclusive but the blood detected was human blood. In this
connection learned Counsel for Appellants submitted that accused
were not immediately arrested and it is impossible to believe that for
two days they were roaming with the same clothes. It has come in
the evidence of Investigating Officer (PW-8) Mukund Kulkarni that
after witness Dhanraj was interrogated it was revealed that Sheela
Nibrad with the help of Raju Wasekar had murdered her husband.
He searched whereabouts of Raju Wasekar but he was not in
village. Raju was arrested near Sindhi Wadhona. In their
statements brother and father of Ravindra expressed doubt on
informant Sheela. They informed that character of Sheela was not
good and she had extra-marital relations with Raju Wasekar. After
getting these clues accused were arrested and their blood stained
clothes were seized. C.A. report confirms that the clothes of
accused were stained with human blood. In the absence of any
explanation from the side of accused regarding blood stained
clothes recovered from their person we find that this circumstance
too points out a finger towards the accused.
27] Spot panchanama (Exhibit-29) indicates traces of blood as
stated by Vishal (PW-4) in his evidence. Vishal stated that after
accused Raju stabbed Ravindra with a knife both the accused lifted
Ravindra and left him at the outer gate. This evidence has
remained unshaken. The presence of both the accused at the
relevant time is proved by (PW-4) Vishal and Dhanraj (PW-5).
Incident occurred during night hours. Vishal could see the
occurrence in the dim light. In the light of these proved facts it was
for the accused to explain the circumstances in which Ravindra
received injuries and died.
28] The learned Additional Public Prosecutor submitted that
the facts were well within the knowledge of the accused and since
accused did not explain the circumstances in which Ravindra died
provisions of Section 106 of the Indian Evidence Act would come
into play and inference is reasonably to be drawn that Ravindra was
killed by the accused. To substantiate his arguments learned
Additional Public Prosecutor relied upon the decision of the Hon'ble
Supreme Court in State of Rajasthan v Thakur Singh
[2014 Crim. L. J. 4047 (SC)].
29] Needless to state that provisions of Section 106 of the
Indian Evidence Act are not intended to remind the prosecution
of its primary duty to prove the guilt of accused beyond
reasonable doubt. It is designed to meet certain exceptional
cases in which it would be impossible or at any rate difficult
for the prosecution to establish the facts which are specially
within the knowledge of the accused. The decision of the Hon'ble
Supreme Court relied upon by the learned Additional Public
Prosecutor lays down the settled position of law under Section 106
of the Indian Evidence Act.
30] Applying this principle to the facts of the present case,
since Ravindra met with homicidal death in a house occupied by
Sheela and presence of Raju is also proved at the relevant time very
strong presumption arises that Ravindra was murdered by accused
and accused alone.
31] If one looks at the report lodged by Accused No.1 Sheela it
is apparent that a show was created just to misdirect and mislead
the investigating agency. Even a knife was given in the left hand of
the deceased just to point out that some unknown person killed the
deceased. The entire show created by accused no.1 resulted into
failure when truth could be elicited on interrogation of child witness
Vishal (PW-4), Dhanraj (PW-5) and father and mother of the victim.
32] As law is settled, in a case based on ocular evidence
motive does not assume much significance. Prosecution examined
Suresh Maroti Nibrad (PW-1) brother of Ravindra. He stated that
since childhood he was knowing accused Sheela. Her behaviour
was bad. Before one year of the incident she left with Babarao
Pachbhai along with minor child. She was residing with him as a
wife at village Sakorli. After three months she called Ravindra.
There was settlement and she came back to cohabit with Ravindra.
He also states about the quarrel which took place on 22-02-2013
between Ravindra and Sheela in the field. He saw accused Raju
Wasekar sitting on the cot in the house of brother Ravindra.
Ravindra asked Raju not to visit his house but he did not stop
visiting.
33] From the cross examination of Suresh it can be gathered
that his relations with accused Sheela were not good. The question
is whether this can be a ground to reject the entire testimony of
Suresh (PW-1). Accused examined Pradip Thawari (DW-2) a
witness in their defence. He is real brother of accused Sheela.
From the contradictions brought in the cross examination of Pradip
and proved by the Investigating Officer it is apparent that there was
extra-marital relations between accused nos.1 and 2. Once his
father had beaten Sheela so she attempted to administer poison to
her father in a food. From the evidence of Suresh (PW-1) and the
contradictions brought in the evidence of Pradip (DW-2) it can be
safely inferred that antecedents and character of accused Sheela
was not clean, clear and above board. Both the accused had a
motive to eliminate the life of Ravindra who was coming in their way.
Thus motive is the additional link proved by the prosecution against
the accused.
34] The factum of homicidal death is not seriously in dispute.
Dr. Madhuri Kamble (PW-6) is not cross examined on the injuries
noticed by her at the time of performing post mortem. The
observations in column nos. 17 and 20 of the post mortem note are
not challenged. Query report regarding weapon (Exhibit-45) shows
that the injuries mentioned in post mortem report (Exhibit-44) were
possible with the knife. These circumstances do further strengthen
the case of prosecution.
35] Accused have come with a defence that dead body was
found outside the house and therefore provisions of Section 106 of
the Indian Evidence Act would not attract. We do not find force in
the stand taken by the accused for the simple reason that clinching
evidence of child witness Vishal could not be shattered in cross
examination and it is crystal clear from his evidence that he had
witnessed the occurrence of incident in a dim light and saw both the
accused after assault shifting Ravindra to the outer gate of the
house. Spot panchanama also substantiates the case of
prosecution that incident occurred inside the house. Thus the ocular
evidence, incriminating circumstances stated herein above and
misleading report lodged by Accused Sheela negative the defence
raised by the accused that Ravindra was killed by some unknown
person.
36] In the above premise and on going through the record
we are of the opinion that there is sufficient evidence to prove
beyond reasonable doubt that Appellants eliminated life of an
innocent person with a specific motive and they are responsible
for murder of Ravindra. We find no merit in the Appeal. Hence
Appeal is dismissed. No costs.
JUDGE JUDGE
Deshmukh
