Bombay High Court
Jiwan S/O Maroti Meshram vs The State Of Maharashtra, Through ... on 29 August, 2017
Bench: R. B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.32 OF 2016
Shri Vilas s/o Mahadeo Mahadole,
Aged 23 years, Occu: Labourer,
R/o Khed Makta, Tahsil Bramhapuri,
District Chandrapur. ....... APPELLANT
(In Jail)
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Bramhapuri, Tahsil Bramhapuri,
District Chandrapur. ....... RESPONDENT
-------------------------------------------------------------------------------------------
Shri A.M. Kukday, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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WITH
CRIMINAL APPEAL NO.299 OF 2015
1] Bhupendra s/o Ramaji Sondawale,
Age about 32 years, Occu: Agriculture,
R/o Khed Makta, Tah. Bramhapuri,
District Chandrapur.
2] Ramaji s/o Tulshiram Sondawale,
Age about 75 years, Occu: Agriculture,
R/o Khed Makta, Tah. Bramhapuri,
District Chandrapur.
Appeal abated 3] Purushottam s/o Tulshiram Sondawale,
against R-3 as Age about 57 years, Occ: Agriculture,
per Court's
Order dt. R/o Khed Makta, Tah. Bramhapuri,
21/10/15 District Chandrapur. (Dead) ....... APPELLANTS
...V E R S U S...
::: Uploaded on - 29/08/2017 ::: Downloaded on - 01/09/2017 01:11:03 :::
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State of Maharashtra,
through PSO Bramhapuri,
District Chandrapur. ....... RESPONDENT
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Shri M.L. Vairagade, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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WITH
CRIMINAL APPEAL NO.300 OF 2015
1] Rajesh s/o Pundlik Selote,
Aged about 25 yrs., Occ: Labourer.
2] Jiwan s/o Maroti Meshram,
Aged about 24 years, Occ: Labourer.
Both R/o Khed Makta, Tahsil Bramhapuri,
District Chandrapur. ....... APPELLANTS
...V E R S U S...
The State of Maharashtra,
through P.S.O. P.S. Bramhapuri,
District Chandrapur. ....... RESPONDENT
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Ms. F.N. Haidari, Advocate holding for Shri R.M. Daga,
Advocate for Appellants.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 07.08.2017
DATE OF PRONOUNCING THE JUDGMENT : 29.08.2017
1] These appeals are heard and decided by a common
judgment since the appeals challenge the same judgment and
order of conviction dated 27.04.2015 in Sessions Case 19/2006
delivered by the Sessions Judge, Chandrapur, by and under which,
the appellants have been convicted for offence punishable under
section 304 Part-II of the Indian Penal Code and are sentenced to
suffer rigorous imprisonment for a period of ten years and to pay
a fine of Rs.500/- each.
2] Heard Shri A.M. Kukday, the learned counsel for the
appellant in Criminal Appeal 32/2016, Shri M.L. Vairagade, the
learned counsel in Criminal Appeal 299/2015 and Ms. F.N.
Haidari, the learned counsel for appellants in Criminal Appeal
300/2015. Shri N.B. Jawade, the learned Additional Public
Prosecutor appeared for the respondent/State in all the three
appeals.
3] The learned counsels appearing for the appellants
(herein after referred to as "accused") are in unison in subjecting
the judgment and order impugned to scathing criticism that the
learned Sessions Judge committed a grave error in basing the
conviction on the sole uncorroborated testimony of the son of
Manohar (P.W.1), whom the learned counsel would brand as a
highly interested witness. The learned counsels would further
urge that even if the testimony is accepted at face value, the
prosecution has not proved an offence under section 304 Part-II of
the Indian Penal Code and at the most the accused could have
been convicted for offence punishable under section 324 of I.P.C.
The learned counsels would hasten to submit, that this is a
submission arguendo, and without prejudice to the contention that
the testimony of P.W.1 is neither confidence inspiring nor is
implicitly reliable and credit worthy. Per contra, Shri Jawade, the
learned A.P.P. contends that there is neither a rule of evidence nor
precedent to hold that the sole testimony of a related witness
must receive corroboration by other direct or circumstantial
evidence. He would contend that the difference between a related
witness and an interested witness is articulated by the Hon'ble
Supreme Court in State of Rajasthan vs. Smt. Kalki and another,
(1981) SCC 2 SCC 752, and that in any event the testimony of
P.W.1 is sufficiently corroborated by the spot panchnama and the
medical evidence.
4] The prosecution case
4.1] The prosecution version discernible from the First
Information Report (Exh.87):-
The informant is Sunil Manohar Gurnule, the son of
the victim Manohar, who is examined as P.W.1. The F.I.R. dated
02.11.2005 which is lodged at 07:05 p.m. states that at 01:30
p.m. when P.W.1 was at the pan shop of Gajanan Nagose, his
father Manohar Gurnule was walking towards his residence from
the square and Bhupendra Sondawle (A1), Ramaji Sondawale
(A2) and Purushottam Sondawale (A3) assaulted him in front of
his residence by fists and kicks and Bhupendra further assaulted
Manohar with a belt. The informant further states that Manohar
then started for the Police Station to lodge a report and at that
time Vilas Mahadole (A7) and Raju Selote (A4) assaulted
Manohar by sticks, fists and blows. Manohar was injured and
blood was oozing out from the left ear of Manohar. The F.I.R.
further states that Manohar was then taken to Brahmapuri in a
white trax by Raju Selote (A4) and Balkrishna Meshram (A5).
4.2] Prosecution case as is unfolded in the testimony of
P.W.1 during the trial:-
P.W.1 states that he was sitting in front of the pan
shop of one Gajanan Nagose, his father Manohar was walking
towards his residence and at that time Purushottam Sondawale
(A3), Ramaji Sondawale (A2) and Bhupendra Sondawale (A1)
assaulted Manohar by fists, kicks and sticks in front of the
residence of Manohar. P.W.2 then states that Manohar was going
towards the Police Station to lodge report and at that time Vilas
Mahadole (A7), Rajesh Selote (A4) and Jiwan Meshram (A6)
assaulted Manohar by fists, kicks and sticks in front of the
residence of Manohar. Manohar suffered injuries to left eye and
ear. Blood was oozing from the left ear of Manohar. P.W.1 states
that he went to the rescue of Manohar and took him to their
residence. P.W.1 further deposes that he and Manohar were
sitting on a cot in the court-yard of the house when Jiwan (A6),
Vilas (A7), Raju (A4) and Balkrishna Meshram (A5) came and
dragged Manohar towards the road and assaulted Manohar by
fists, kicks and sticks. P.W.1 then states that Balu (A5) lifted
pumpkin from the court-yard of Manohar and assaulted Manohar
on the head with the pumpkin. P.W.1 then states, at that time one
white jeep arrived at the spot, accused stopped the jeep, the
accused lifted Manohar and kept him in jeep and took him away.
Manohar was admitted in Rural Hospital, Brahmapuri in a
comatose condition and was then shifted to General Hospital,
Chandrapur. However, Manohar expired on 04.11.2015.
5] Ocular evidence
5.1] The prosecution has examined P.W.1-Sunil Manohar
Gurnule, P.W.2-Javed Khan Pathan, P.W.7-Devanand Nagose and
P.W.8-Shrihari Nagose as eye witnesses to the assault. P.W.2,
P.W.7 and P.W.8 have not supported the prosecution, were
declared hostile and were permitted to be cross-examined by the
prosecution. However, nothing is brought out in the
cross-examination of P.W.2, P.W.7 and P.W.8 to assist the
prosecution. P.W.1-Sunil, the son of the deceased, is the only eye
witness who is supporting the prosecution. I will advert to the
ocular evidence, at a later stage in the judgment.
6] The corroborative evidence
6.1] Spot panchnama:-
The spot panchnama dated 03.11.2005 is Exh.111 on
the record of the Trial Court. The spot panchnama records that
the spot of the incident is on the road near the residence of
Patirao Meshram. The road is 15 feet wide. It is further recorded
in the spot panchnama that in a drainage near the residence of
Patirao Meshram a stone with blood stains is seen. Blood is also
seen mixed with blood. Small pieces of pumpkin are seen in the
court-yard of the deceased.
6.2] Recovery/seizure pursuant to the statement
under section 27 of the Indian Evidence Act,
1872.
6.3] The prosecution version is that pursuant to statement
of Vilas (A7) recorded under section 27 of Indian Evidence Act, a
stick was recovered and seized from the vacant plot owned by one
Narendra Sondawale. A belt is allegedly recovered and seized
pursuant to the statement under section 27 of the Indian Evidence
Act given by Bhupendra Sondawale (A1).
6.4] The learned Sessions Judge has however, discarded
the said corroborative evidence on the reasoning that the stick is
recovered from open space and that the recovery of belt is of no
significance in the absence of evidence to suggest that belt was a
weapon of assault.
7] Medical Evidence
7.1] Dr. Smt. Jyostna Mhaskar (P.W.4), who examined
injured Manohar on 02.11.2005 at the Rural Hospital, Brahmapuri
states that she noticed the following injuries:
1. Contusion on right side of forehead 3 cm x 3 cm.
2. Abrasion of right scapular region 3 cm x 3 cm.
3. Abrasion on right buttock 3 cm x 4 cm.
4. Abrasion of left buttock 1 cm x 1 cm.
5. Abrasion on left shoulder laterally 2 cm x 2 cm.
6. Contusion on left side of forehead 2 cm x 1 cm.
7. Contusion on right eye with oedema of right upper
eyelid.
8. Abrasion on right knee anteriorly ½ cm x ½ cm.
9. Abrasion on left knee anteriorly 1 cm x 1 cm.
10. Bleeding from right ear.
11. Lacerated wound near left ear anteriorly 1 cm x ½
cm.
P.W.4 deposes that the injuries are possible by fists
blows, stick and leather belt. In the cross-examination, P.W.4
states that except injuries to ear, eyelid and buttock, other injuries
are possible if a man under the influence of liquor repeatedly falls
on the ground. She admits that unless ear is examined by earscope
or by X-ray, one would not understand the cause of bleeding from
the ear. She states that rest of the abrasions and contusions are
simple injuries. P.W.5 is Dr. Digamber Dashatwar, who identifies
the handwriting and signature of Dr. Indrayani Salphale, the then
Medical Officer in General Hospital, Chandrapur who conducted
the postmortem examination of the deceased. P.W.5 proved the
postmortem report (Exh.110). He states that injury mentioned in
column 19 is sufficient to cause death in ordinary course of
nature. He further states that bleeding is possible from ear if there
is a head injury. P.W.5 admits in the cross-examination that there
is no external injury corresponding to the injury mentioned in
column 19. He admits that all injuries mentioned in column 17
are simple injuries. He further admits that injury mentioned in
column 19 is possible if a person falls and his head or occipital
region dashes against hard substance. The P.M. report Exh.110
states that probable cause of death could be due to injury to vital
organs such as brain. Column 19 states that there is no obvious
injuries on scalp. Column 19 however, states that there is hairline
fracture of scalp horizontal 6 cm. in length on the left side in
occipital region.
8] Consideration of the prosecution case
8.1] The only eye witness who has supported the
prosecution is Sunil the son of the deceased (P.W.1). The learned
A.P.P. is right in contending that a related witness is not
necessarily an interested witness. The learned A.P.P. is also right
in contending that evidence must be weighed and not counted
and the conviction can be based on the sole uncorroborated
testimony of an eye witness, if the testimony is implicitly reliable
and confidence inspiring. In Vadivelu Thevar vs. State of Madras
AIR 1957 SC 614, the Hon'ble Supreme Court has categorized
witnesses thus: (i) wholly reliable, (ii) wholly unreliable and (iii)
neither wholly reliable nor wholly unreliable. The testimony of
P.W.1, who is the son of the deceased and the only eye witness
supporting the prosecution, must be scrutinized closely on the
touchstone of caution. I have attempted to do so, and the exercise
impels me to view the testimony of P.W. 1 as, "neither wholly
reliable nor wholly unreliable".
9] The testimony of P.W.1 is not entirely free from
doubt. The First Information Report (Exh.87) lodged by P.W.1
seven hours after the incident speaks of the deceased having been
assaulted by Bhupendra, Ramaji and Purushottam (A1, A2, and
A3 respectively) in front of the residence of deceased by kicks and
blows and Bhupendra is alleged to have used a belt. The second
assault, as stated in the F.I.R., took place when the deceased was
going to the Police Station to lodge a report and Vilas (A7) and
Raju (A4) allegedly assaulted the deceased with stick, fists and
blows. The F.I.R. is absolutely silent about the third assault which
the deceased allegedly suffered in the court-yard of his residence.
There is no whisper in the First Information Report about the
deceased being assaulted with a pumpkin in the court-yard of the
residence of the deceased. In the oral testimony, P.W.1 has stated
that the deceased was assaulted thrice. P.W.1 states that the first
assault was committed by Purushottam, Ramaji and Bhupendra.
The accused 3, 2 and 1 effectively by fists, kicks and sticks.
The use of stick is an omission. Pertinently, the testimony is silent
on the use of belt by Bhupendra. The second assault is allegedly
committed by Vilas (A7), Ramaji (A4) and Jiwan Meshram (A6) in
front of the residence of the deceased by fists, kicks and sticks and
according to P.W.1, the deceased then suffered injuries to left eye
and ear and blood started oozing from the left ear of the
deceased. P.W.1 states that he went to the rescue of the deceased
and took the deceased inside the house and when P.W.1 and the
deceased were sitting on a cot in the court-yard, Jiwan (A6), Vilas
(A7), Rajesh (A4) and Balu (A5) dragged the deceased towards
the road and assaulted the deceased by fists, kicks and sticks.
P.W.1 states that the accused 5 Balu lifted a pumpkin from the
court-yard and assaulted the deceased on the head with the
pumpkin. P.W.1 further states that a white jeep arrived at the
spot, accused stopped the jeep and took the deceased to
Brahmapuri.
10] In the cross-examination P.W.1 denies that the assault
took place near the house of Patirao Meshram. This denial is
inconsistent with the spot panchnama and previously recorded
statement of P.W.1 The attention of P.W.1 is invited to the fact
that there is no mention of assault by means of stick in the
statement recorded by Police and P.W.1 answers that he did state
so. In paragraph 7 of the cross-examination of P.W.1, an omission
is brought on record which is to the effect that the use of stick is
not mentioned by P.W.1 in the statement to the Police while
referring to the alleged assault on the deceased when the
deceased was on his way to lodge a police report. The role
attributed to Balu Meshram (A5) and in particular the alleged use
of pumpkin to assault the deceased is an omission which is
brought out in the cross-examination. P.W.1 admits that the
deceased was habituated to drinking liquor and that the deceased
has consumed liquor on the day of the incident. He however,
denies that the deceased was not in his senses. He denies the
suggestion that the deceased was intoxicated and was abusing
other people and was generally not in a position to balance
himself. P.W.1 denies the suggestion that as the deceased was
abusive, the accused made him sit in the vehicle and admitted in
the Hospital.
11] One glaring striking feature needs serious
consideration. Balkrishna (P.W.5) expired on 19.12.2013 and the
testimony of P.W.1 was recorded on 27.02.2014. In the
examination-in-chief, the lifting of pumpkin and assaulting the
deceased on the head with the pumpkin is attributed to
Balkrishna. However, the witness was recalled and in further
examination-in-chief P.W.1 states that he did not understand the
question and erroneously attributed the said role to Balkrishna.
P.W.1 stated that accused 7 lifted pumpkin and assaulted the
deceased. The explanation that the question was not understood
by P.W.1 and therefore, the role was attributed to Balkrishna is
unsatisfactory, to say the least. Apart from the fact, that the use of
pumpkin as a weapon of assault is a clear after thought and is
introduced only in the trial, a more plausible reason for the P.W.1
to absolve Balkrishna and to attribute the assault by pumpkin to
P.W.7-Vilas appears to be the realization that Balkrishna was not
alive.
12] The learned Sessions Judge, as is discernible from
paragraph 17 of the judgment impugned takes note of the absence
of an external injury corresponding to the headline fracture
referred to in column 19 of the P.M. report. The learned Sessions
Judge records a finding, that the deceased was assaulted on his
head by means of pumpkin, which was hard enough to give fatal
blow without causing any external injury. The testimony that a
pumpkin was used to assault the deceased has undoubtedly
weighed with the learned Sessions Judge is recording conviction
under section 304 Part-II of I.P.C. However, upon a holistic
appreciation of the oral testimony of P.W.1 and the medical
evidence, I am unable to hold that the prosecution has proved that
the hairline fracture suffered by the deceased is positively and
conclusively attributable to the alleged assault. The learned A.P.P.,
with usual fairness, does not dispute that the only injury, which if
proved would constitute grievous hurt is the said hairline fracture
to the scalp.
13] The testimony of P.W.1, in my opinion, is neither
wholly reliable nor wholly unreliable and the chaff must be
separated from the grain by seeking corroboration from other
material and circumstantial evidence. Accused 1 to 3 who are
appellants in Criminal Appeal 299/2015 (accused 3 Purushottam
has expired and the appeal stands abated as against Purshottam
Sondawale) have not played any role, even according to P.W.1,
after the initial assault on the road in front of the residence of
Patirao Meshram. The use of stick which is attributed to the
accused 1, 2 and 3 appears to be an omission which is duly proved
in the testimony of the I.O. I am not persuaded to hold, on a
overall appreciation of the evidence, that the prosecution has
proved that accused 1, 2 and 3 had a common intention to inflict
grievous hurt much less had the knowledge that by such act death
would occasion. The only offence which is made out against the
appellants in Criminal Appeal 299/2015 is under section 323 of
the I.P.C.
14] The role attributed to appellants in Criminal Appeal
300/2015 is of having participated in the second assault on the
deceased when the deceased was allegedly going to the Police
Station to lodge report. The accused Raju and Jiwan, according to
P.W.1 also participated in the assault which took place in the
court-yard of the residence of the deceased along with accused 7
Vilas and accused 5 Balu Meshram. The assault is allegedly by
means of fists, kicks and sticks. The medical report corroborates
the version of P.W.1 that stick was used as a weapon of assault.
However, there is absolutely no evidence to suggest that the
assault was on a vital organ. I am not persuaded to hold that there
was any intent to cause death much less that the accused were
had the knowledge that the assault may cause death.
The conviction of the appellants in Criminal Appeal 300/2015 for
offence punishable under section 304 Part-II is unsustainable.
I would convict the accused in Criminal Appeal 300/2015 for
offence punishable under section 326 of the I.P.C.
15] The appellant in Criminal Appeal 32/2016 Vilas (A7)
participated in the second and third assault. However, there is no
evidence on record to sustain his conviction under section 304
Part-II even with the aid of section 34 of I.P.C. The common
intention, if any, was only to cause grievous hurt and I would set
aside the conviction under section 304-II and convict the accused
Vilas for offence punishable under section 326 of the I.P.C.
16] Vilas the appellant/accused in Criminal Appeal
32/20016 was in judicial custody from 03.11.2005 to 13.02.2006
and from 10.10.2014 till date. He has already spent more than
three years in the jail as under trial prisoner and then as a convict.
I modify the sentence to already undergone.
The appellant/accused in Criminal Appeal 32/2016 be released
from jail forthwith if not required in any other offences.
17] The appellant Rajesh Selote in Criminal Appeal
300/2015 has spent 2 years, 5 months and 18 days as an under
trial prisoner and about 5 months and 11 days as convict, in jail.
Rajesh Selote has already spent 2 years, 10 months and 11 days in
jail as under trial prisoner and then as convict. Jiwan Meshram
the other appellant in Criminal Appeal 300/2015 has spent
approximately 10 months in jail as under trial prisoner and then
as convict. Both Rajesh and Jiwan are labourers and are relatively
young. I therefore, sentence them to the imprisonment already
undergone.
18] The appellant/accused in Criminal Appeal 299/2015
who are convicted under section 323 of the I.P.C. have spent more
than 9 months in jail as under trial prisoner and then as convicts
and are sentences to the imprisonment already undergone.
19] I would partly allowed all the three appeals in the
aforesaid terms.
20] The appeals are disposed of accordingly.
JUDGE
NSN
