Yogesh S/O Nilkanth Pande (In ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 6345 Bom

                                                1               apeal109.16.odt

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR

                        CRIMINAL APPEAL NO. 109 OF 2016

            Yogesh Nilkanth Pande,
            aged about 33 years, Occ. Labour Work,
            R/o. Kamthi, Tq. & Distt. Wardha  ......                        APPELLANT

                                  ...VERSUS...

         State of Maharashtra,
         through P.S.O.Kharangna,
         Tq. And Distt. Wardha ............                                    RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri Mahesh Rai, counsel for appellant
 Shri Vinod Thakare, Asstt., Public Prosecutor for Respondent
 -------------------------------------------------------------------------------------------
                           CORAM: R. K. DESHPANDE, AND
                                        MANISH PITALE, JJ.
                                                         th
                           RESERVED ON       : 9    AUGUST 2017
                                                             th
                           PRONOUNCED ON :    18    AUGUST, 2017

 JUDGMENT (Per Deshpande, J.)

1] In Sessions Case No. 54 of 2012, the learned

Additional Sessions Judge, Wardha, vide his judgment and

order dated 19.11.2014, has convicted the appellant/

accused for the offence of committing an act of culpable

homicide amounting to murder under Section 302 of Indian

Penal Code and he is made to suffer rigorous imprisonment

for life and to pay fine of Rs.10,000/-. In default of payment

of fine, the accused is required to undergo simple

2 apeal109.16.odt

imprisonment for the period of six months. The

appellant/accused is acquitted for the offence punishable

under Section 498-A of the Indian Penal Code, and

therefore, it is not necessary for this Court to deal with such

charge as there is no appeal preferred against it.

2] The charge against the accused was that on

02.02.2012, between 6 p.m. to 7 p.m., he committed murder

of his own daughter Ku.Sharvari, aged about 2 months, at

mouza-Wardha, by throwing her in the well with an intention

to cause her death and thereby committed an offence

punishable under Section 302 of I.P.C.

3] The accused is the husband of complainant

Varsha and out of their wedlock, two girl child were born.

The eldest was Ku.Harshada, aged about 6 years, and the

youngest was Ku. Sharvari of two months old at the time of

the incident. The accused was addicted to liquor and he

used to physically and mentally harass his wife Varsha.

Therefore, she used to live with her parents at Murarka

Wada, Wardha. At the time of incident also, she was living

with her parents alongwith two minor daughters. The

3 apeal109.16.odt

accused used to intermittently come there and quarrel with

her.

4] The story of the prosecution is that, on

02.02.2012 at about 6 p.m., Varsha, the mother, had kept her

daughter Sharvari, aged 2 months, in the cradle and had

gone to the toilet for easing. The elder daughter Harshada

was playing near the cradle. When Varsha came back at

about 6.15 p.m., she could not find Sharvari in the cradle and

hence, she asked Harshada who told her that 'maddya', the

accused had lifted her and taken away. She, therefore,

immediately came out of her house and found that the

accused was going away with the child. She started shouting

and in the meantime her parents also came and all of them

followed the accused. The accused ran away with the

daughter Sharvari and could not be traced out. On the next

day i.e. 03.02.2012, at about 7 a.m., one Ravindra

Shaymdiwal came to the house of Varsha and informed her

that the dead body of Sharvari was found floating in the well

near Murarka Wada. She, therefore, rushed to the spot and

found the body of Sharvari floating in a well in a dead

condition. She filed complaint in the police station. The first

4 apeal109.16.odt

information report was lodged and the offences under

Sections 302 and 498-A of I.P.C. were registered against the

accused at 10.40 a.m. on 03.02.2012.

5] The Sessions Court recorded the conviction of

the accused on the basis of the evidence of PW-1 Varsha

and PW-3 Vijaya, the mother and grand mother of the

deceased child. The Court also relied upon the evidence of

PW-4 Prashant and PW-5 Sulochana, the independent

witnesses, who deposed the theory of the accused and the

deceased Sharvari, seen last together on 02.02.2012

between 6.30 p.m. to 8.45 p.m. The prosecution examined

total 7 witnesses. The conviction is thus based upon purely

circumstantial evidence.

6] The learned counsel for the appellant has urged

that there was delay in lodging the F.I.R. The child was

missing, according to the prosecution, from 6 p.m. onwards

on 02.02.2012. But no complaint was made and it was for

the first time, the F.I.R. was lodged at 10.40 a.m. on the next

day i.e. 03.02.2012. According to him, there is no

explanation for the delay. The learned counsel invited our

5 apeal109.16.odt

attention to the evidence of PW-2 Ravindra Srivas and PW-4

Prashant, who deposed to have seen the accused on

02.02.2012 during 8 p.m. to 9.30 p.m. alongwith minor child.

However, PW-2 Ravindra stated that the child was delivered

back to the mother by the accused in his presence, whereas

PW-4 Prashant stated that he saw the accused going back to

the house of his in-laws alongwith the minor child and he was

seen coming back without child. He, therefore, submits that

the evidence of PW-4 Prashant could not have been relied

upon by the trial Court to record the conviction. He submits

that oral evidence of PW-1 Varsha and PW-3 Vijaya, the

mother and grand mother of the deceased child, could not

have been believed because the relations of the accused

with them were strained and they wanted to falsely implicate

the accused. He further submits that the motive on the part

of the accused to kill his own daughter has not been

established.

7] The only question before us is whether the

Sessions Court was right in recording the conviction under

Section 302 of I.P.C. against the accused on the basis of the

circumstantial evidence of last seen together, in the absence

6 apeal109.16.odt

of there being any eye witness to an incident.

8] The Sessions Court found the oral evidence of

PW-1 Varsha and PW-3 Vijaya to be credible evidence which

is corroborated by the oral evidence of independent

witnesses PW-4 Prashant and PW-5 Sulochana, who saw

the accused with Sharvari between 8 p.m and 8.30 p.m on

the date of incident. The Court considers that though the

evidence brought on record indicates that PW-4 Prashant

and PW-5 Sulochana were having good relations with PW-1

Varsha or that there is animosity in between them and the

accused, there is nothing suspicious in their evidence and

there is no reason to disbelieve them. It holds that the

burden was upon the accused to explain as to where he was

taking the child Sharvari.

9] The Sessions Court looks into the statement of

the accused under Section 313 of Cr.P.C and holds that the

accused has simply answered all the questions put to him as

'false'. The Court holds that it was obligatory on the part of

the accused to furnish some explanation with respect to the

incriminating circumstances associated with him, which can

7 apeal109.16.odt

be taken into consideration to decide as to whether the chain

of circumstances is complete. Referring to Sections 101,

103, 104, 106 and 114 of the Evidence Act, the Court holds

that the facts which are established as 'within the knowledge

of the accused' need to be explained by the accused. On

the question of 'motive', the Court holds that considering the

fact that the accused was not residing with PW-1 Sou.

Varsha and the children, it was for the accused to clarify as

to why he went to the parental house and took away the

daughter with him. The Court holds that the accused has not

stated as to where he was at the time of incident and there is

no suggestion in the defence that somebody else is involved

in the crime.

10] Except alleging animosity and grudge of PW-1

Varsha and PW-3 Vijaya, we do not find anything in the cross

examination of these witnesses to create any suspicion about

their version. Be that as it may, the unshaken testimony of

two independent witnesses i.e. P.W.-4 Prashant and PW-5

Sulochana clearly corroborates the version of Versha and

Vijaya. After going through the evidence of all the witnesses,

the fact is established beyond reasonable doubt that the

8 apeal109.16.odt

accused had gone to the parental house of Varsha

and taken away custody of child Sharvari, without her

knowledge and consent. The accused was seen alongwith

the minor child Sharvari by almost all the witnesses, who

have deposed the theory of last seen together, including PW-

2 Ravindra Shrivas, who turned hostile. We, therefore, do

not find any infirmity in the reliance placed by the Sessions

Court upon the evidence of PW-1, PW-3, PW-4 and PW-5 to

establish the theory of last seen together beyond reasonable

doubt.

11] We also do not find any infirmity in the view

taken by the Sessions Court that in the facts and

circumstances of this case, the accused was required to

furnish an explanation in respect of incriminating

circumstances in his statement under Section 313 of Cr.P.C.

There is absolutely no explanation as to why he approached

the parental house of his wife Varsha, the purpose for taking

away the child without consent and knowledge of his wife

Varsha and as to whether he returned the child to his wife.

We are aware that the motive is not an ingredient of an

offence under Section 302 of I.PC., but, in the present case

9 apeal109.16.odt

which is based upon the circumstantial evidence, the learned

Sessions Judge has also dealt with the motive of the

accused, which can be gathered from the strained relations

of the accused with his wife, coupled with the incident that on

one occasion, the accused took away his elder daughter

Harshada with him without the consent and knowledge of his

wife and caused injuries to her. The motive may be to teach

lesson to his wife and in-laws. We, therefore, do not find any

infirmity in such a view taken by the Sessions Court.

12] Coming to the evidence of PW-2 Ravindra

Srivas, who turned hostile, we find that he was very well

acquainted with the accused, his wife Varsha and the

maternal grand parents of the child Sharvari. He deposes to

have seen the accused alongwith deceased daughter who

was crying on the day of the incident. He states that the

accused was slapping (abusing) his daughter and when this

witness asked him about it, he told the witness not to

interfere and he will do whatever he likes. When this witness

went near the accused, he was told by the accused not to

touch, otherwise he will throw the minor child on the ground.

This witness empathetically deposes to have seen burn

10 apeal109.16.odt

injuries on the cheeks of the minor child. In the cross

examination, he states that, "it is not true to say that I have

not seen accused slapping the minor child and burn injuries

on the chicks of the girl". This witness in his examination-in-

chief suddenly takes turn and deposes that the grand parents

and mother of the child came running and directed the

accused to give custody of the child and the accused gave

the minor child to the mother. In cross examination, he says

that the accused gave girl to the parents of the complainant

in the presence of the complainant and then went away.

13] PW-4 Prashant Mahakalkar was also acquainted

with the accused and states that on the day of incident, he

was standing along with his two friends on the stairs of

Murarka Kirna Stores, when he saw the accused going

somewhere along with his daughter. He states that the

accused was holding his daughter in his hands and the

daughter was very small. Then he says that the accused

returned after 4-5 minutes and at that time the child was not

with him. The accused ran away towards the main road. He

states that the accused was son-in-law of Rajdharkar where

he was living. In the cross examination he states that the

11 apeal109.16.odt

accused was going to the house of Kalidas Rajdharkar along

with the child and he crossed them after 2-3 minutes when

he was alone and nobody was following him.

14] The hostility on the part of these two witnesses,

PW-2 and PW-4 can be examined in the light of the decision

of the Apex Court in the case of Prithi vrs. State of

Haryana, reported in (2010) 8 SCC 536. This decision is on

the admissibility of testimony of hostile witness and the

relevant portion contained in paragraph nos. 25, 26 and 27 of

the said decision is reproduced below.

"25............. In Khujji v. State of M.P., a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v. State of Karnataka, reiterated the legal position that :

"6. ..... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof"

26. In Koli Lakhmanbhai Chanabhai v. State of Gujrat, this Court again reiterated that testimony of a hostile witness is useful to the extent to which it supports the prosecution case. It is worth noticing that in Bhagwan Singh this Court held that when a witness is declared hostile and cross-examined with the permission of the court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.

27. The submission of the learned Senior Counsel for the appellant that the testimony of PW-6 should be either accepted as it is or rejected in its entirety, thus, cannot be accepted in view of the settled legal position as noticed above".

12 apeal109.16.odt

It is well settled that the evidence of a prosecution witness

cannot be rejected in toto merely because the prosecution

chose to treat him as hostile and cross examined him. The

evidence of such witnesses cannot be treated as effaced or

washed off the record altogether but the same can be

accepted to the extent their version is found to be

dependable on careful scrutiny thereof. It holds that the

evidence of hostile witness remains admissible and there is

no legal bar to have a conviction upon his testimony, if

corroborated by other reliable evidence. The Apex Court

clearly rejects the contention that the testimony of the hostile

witness should either be accepted as it is or rejected in its

entirety.

15] In our view, the evidence of all the witnesses

deposing the theory of last seen together the accused and

the minor child Sharvari on the date of incident, establish the

guilt of the accused beyond reasonable doubt. There is a

discrepancy in the evidence of PW-2 Ravindra Srivas when

he says in the examination-in-chief that, "minor child was

handed over immediately to the mother Varsha" and in cross

examination, he says that, 'the child was handed over the

13 apeal109.16.odt

grant parents in presence of Varsha'. This version of the

witness is not corroborated by any other witnesses.

Similarly, the version of PW-4 Prashant that he saw the

accused returning from the house of Rajdharkar without child

also cannot be believed. The accused was not staying in the

parental house of his wife Varsha. It is not the version of

PW-4 Prashant that the accused returned the child either to

the mother Varsha or to the parental parents. No doubt that

the F.I.R. was lodged at 10.40 a.m. on the next day i.e.

03.02.2012. Obviously, such a complaint could only be after

the child was found in the dead condition floating in the well.

We do not find that there was any delay in lodging the F.I.R.

being fatal to the story of prosecution.

16] In view of above, we concur with the view taken

by the Sessions Court and dismiss this appeal. There shall

be no order as to costs.

                                JUDGE                             JUDGE


 Rvjalit