Bombay High Court
Ramesh S/O Kisan Rathod (In Jail) vs The State Of Maharashtra, Through ... on 9 June, 2016
Bench: B.R. Gavai
APEAL.571.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 571 OF 2014
Ramesh s/o Kisan Rathod,
Aged about 45 years,
R/o Lingi (Wai),
Tq. Digras, District Yavatmal.
(In Jail). .... APPELLANT.
// VERSUS //
The State of Maharashtra,
through its Police Station
Officer, Police Station Digras,
District Yavatmal. .... RESPONDENT.
Ms. Radha Mishra, Advocate (appointed) for appellant,
Mr. V.A. Thakare, Additional Public Prosecutor for respondent.
CORAM : B.R. GAVAI & V.M. DESHPANDE, JJ.
DATED : JUNE 9, 2016.
JUDGMENT (PER B.R. GAVAI, J.)
1] Being aggrieved by the judgment and order passed by the
learned Additional Sessions Judge, Darwha dated 15.10.2007 in
Sessions Trial No. 42/06, thereby convicting the appellant for the
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offence punishable under Section 302 of the Indian Penal Code and
sentencing him to suffer R.I. for life and to pay a fine of Rs.1000/- and
in default to undergo further simple imprisonment for one month, the
appellant has approached this Court.
2] The prosecution case, in brief, as could be gathered from
the material placed on record is as under :-
PW.1 Eknath Paradkar lodged an oral report below Exh.
23 on the basis of which the First Information Report below Exh. 24
came to be registered. It was stated in the said report that he had
given two acres of agricultural land for cultivation of groundnut to
deceased Gema Pawar. As such, for last two months Gema Pawar
was cultivating his land. Gema Pawar and his wife Janabai were
working in his field and Gema Pawar was also residing in the field in
the night. It is stated in the FIR that on 10.4.2006 a quarrel had taken
place in between the accused Ramesh Rathod and his brother
Naresh Rathod on account of their land. Because of fear of accused
Ramesh, Naresh along with his wife and sons had come to the house
of Gema Pawar to reside on the day prior to the date of the incident.
On the next day, Naresh along with his family members went to
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village Saikheda. On the day of the incident, accused Ramesh had
come to the house of Gema Pawar and had asked his daughter-in-
law as to why he had given shelter to his brother Naresh. It was
stated that on account of the said incident, the accused had killed
Gema Pawar and his wife Janabai in the field of his brother
Parashram Paradkar and Vasanta Paradkar by assaulting them by
sharp weapon on their abdomen and ran away from place. It was
also stated that sons of Naresh Rathod, by name Devanand and
Vicky had also seen the incident and had told about the same to him.
It was stated that the said witness had gone to the spot and verified
the situation and thereafter lodged the report.
3] On the basis of the FIR, investigation was set into motion.
At the conclusion of investigation, a charge-sheet came to be filed
against the appellant in the Court of J.M.F.C., Digras. Since the case
was exclusively triable by the Sessions Judge, the same came to be
committed to the Sessions Court, Digras vide order dated 13.7.2006.
Charge was framed against the accused below Exh. 6. He pleaded
"not guilty" and claimed to be tried. At the conclusion of the trial, the
learned trial Judge came to the conclusion that the prosecution had
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proved beyond reasonable doubt that the accused had committed
murder of deceased Gema Pawar and as such, convicted him for the
same. However, the learned trial Judge found that the prosecution
had failed to prove that the accused had committed murder of
deceased Janabai and as such, acquitted him for the said charge.
Being aggrieved thereby, the present appeal has been filed.
4]
Smt. Radha Mishra, the learned Counsel for the appellant,
submits that the trail Judge has grossly erred in passing an order of
conviction. She submits that the only evidence is that PW.4 Bharati,
who is an interested witness. She submits that apart from the
evidence of PW.4 Bharati, there is no material placed on record to
establish the complicity of the accused in the crime in question. The
learned Counsel, therefore, submits that the conviction based on the
sole testimony of an interested eye-witness deserves to be set aside.
5] Shri V.A. Thakare, the learned Additional Public
Prosecutor for the respondent/State, on the contrary, submits that the
learned trial Judge has taken into consideration the ocular testimony
of PW.4 Bharati as well as the evidence of the other witnesses and
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has rightly come to the conclusion of conviction. It is, therefore,
submitted that no interference is warranted and the appeal deserves
to be dismissed.
6] With the assistance of the learned A.P.P. as well as the
learned Counsel for the appellant, we have scrutinized the evidence
on record.
7] The star witness in the present case is PW.4 Bharati. Her
evidence is below Exh. 33. She states in her deposition that two
days prior to the date of incident there was a quarrel between
accused Ramesh and his brother Naresh on account of plot. She
further states that Naresh had given report about the incident in
Police Station. Because of fear of accused Ramesh, Naresh had
come along with his family members to reside at their house on
earlier day of incident. In the morning on the next day, Naresh had
gone to his house along with his family members. At around 11 a.m.
accused Ramesh came to her house. He asked her as to why he had
given shelter to Naresh at their house. He also threatened her to cut
her and her family members. She states that her parents-in-law had
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gone to the field. On the day of incident, Naresh had gone to village
Saikheda and his sons Vicky and Devanand were grazing their
bullocks in the field of Eknath Paradkar. At around 2 p.m. she had
taken a tiffin of her parents-in-law in the field. At that time, she saw
that the accused Ramesh was assaulting his father-in-law Gema
Pawar by knife. He assaulted Gema Pawar on his abdomen. She
had seen the incident from a distance of 20 to 25 feet. She was
frightened. She ran towards the house. After coming to the house,
she regained consciousness after about 30 to 45 minutes. At that
time, Raju Pawar had come to her house and told that accused
Ramesh had killed her parents-in-law. No doubt that there are certain
omissions and improvements in her deposition. However, she is a
rustic illiterate villager and some minor variations in her deposition
would not be sufficient to discard her testimony. In spite of thorough
cross-examination, her evidence in so far as the accused assaulting
the deceased with knife is concerned, has remained unshattered.
8] Merely because a witness is an interested witness cannot
be a ground for discarding his testimony. The only requirement is
that the testimony of such a witness should be found to be truthful,
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cogent, reliable and the one which inspires the confidence in the mind
of the Court. We find that the evidence of PW.4 Bharati is cogent,
trustworthy and reliable and the one which inspires the confidence in
the mind of the Court. The conviction could be based on the sole
testimony of eye-witness. However, as a matter of caution, we will
make an attempt to find out as to whether her version is corroborated
by the other evidence.
9] PW.1 Eknath Dattaram Paradkar is the first informant. He
narrates about the quarrel taking place between the accused Ramesh
and his brother Naresh on 10.4.2006 and Naresh going to the house
of Gema Pawar along with his family members to reside in his house.
He also states regarding Bharati PW.4 coming to his house on
13.4.2006 and telling him that the accused had taken objection as
Gema Pawar had given shelter to Naresh. He states that on the
same day at 3.30 p.m. he came to know from Dattaram that Gema
Pawar was lying in dead condition in his field. Hence, he had gone to
the field and he had seen Gema Pawar lying dead in injured condition
below Babul tree. He had received injuries on his stomach and
intestines had come out of his abdomen. He further states that
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thereafter he came back to the village and told about the incident to
Sarpanch. Thereafter, he went to Police Station Digras. He further
states that at that time Naresh Rathod PW. 6 and his sons Devanand
PW.7 and Vicky PW.8 had informed him that accused had killed
Gema Pawar and Janabai. He further states that these three persons
had also told him that accused had also given threats to them.
Thereafter, an FIR came to be lodged at the instance of oral report
given by this witness. The FIR which is immediately lodged at 19.10
hours also clearly implicates the present appellant.
10] The perusal of the FIR would reveal that PW.7 Devanand
and PW.8 Vicky had informed him that the accused had assaulted
both the deceased. No doubt that all these three witnesses have
turned hostile. It appears that these three witnesses, one of whom is
brother and two are nephews of the accused in order to save the
relative have chosen not to speak the truth before the Court.
However, it would be seen from the evidence of PW.6 Naresh and the
document at Exh. 82 that the said witness has no regard to truth.
Though he states in his evidence that no quarrel took place between
him and his brother Ramesh, the perusal of Exh. 82 would reveal that
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not only the quarrel had taken place between Naresh and Ramesh on
10.4.2006, i.e. 2-3 days prior to the incident but vide judgment and
order dated 26.7.2006 the present appellant is also convicted and
sentenced to suffer imprisonment for four months and fine of Rs.500/-
and in default to suffer further imprisonment for two months. The said
document would also corroborate the version of PW.4 Bharati.
11]
It could further be seen that on a memorandum of the
appellant below Exh. 69, the clothes which were worn by the accused
and the knife which was used by him for committing the crime have
been discovered and seized under seizure panchnama below Exh.
70. The perusal of Exhs. 69 & 70 would reveal that a statement was
given by the accused under Section 27 of the Indian Evidence Act
that he had washed the clothes and the knife and thereafter kept the
same in a plastic bag and concealed them beneath the earth near a
nullah in Mokh II area.
12] It could thus be seen that on the memorandum the
accused had taken the panch and the police party to a nullah and he
had dug up the earth and took out a plastic bag which was containing
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his clothes and an iron knife. The Chemical Analyzer's report would
show the traces of human blood on the knife seized. It could thus be
seen that the recovery was on the basis of memorandum of the
accused under Section 27 of the Indian Evidence Act from a place
which was distinctly within his knowledge. It will be apposite to refer
to following observations of the Apex Court in paragraph no. 1847 in
the case of Yakub Abdul Razak Memon .vs. State of Maharashtra,
through CBI, Bombay reported in (2013) 13 SCC 1, which read as
under :-
"1847. Undoubtedly, the appellant's disclosure
statement had been made before the police, as well as the
panch witness. The fact that he did not disclose the place
where the contraband had been hidden remains entirely
insignificant, for the reason that he had led the police party
to the said place, and that the said recovery had been
made at his behest. The open space from where the
recovery had been made though was accessible to
anybody, it must be remembered that the contraband had
been hidden, and that it was only after digging was done at
the place shown by the appellant, that such recovery was
made. Hence, it would have been impossible for a normal
person having access to the said place, to know where the
contraband goods were hidden."
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It could thus be seen that the ocular testimony of PW.4 Bharati is
corroborated by PW.1 Eknath, the memorandum of the accused
under Section 27 and recovery of the incriminating material at the
instance of the accused, so also the document below Exh. 82.
13] In that view of the matter, we find that the prosecution has
established the case beyond reasonable doubt and the judgment of
conviction and sentence warrants no interference.
14] In the result, the Criminal Appeal is dismissed.
Fees payable to the learned Counsel appointed for the
appellant are quantified at Rs.5000/-.
JUDGE
JUDGE .
J.
