Dattatraya Jyotiba Raut vs The State Of Maharashtra
2017 Latest Caselaw 7953 Bom

                                              1 / 21                      APEAL-125-10.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.125 OF 2010

    Dattatraya Jyotiba Raut
    R/O. Bahurupi Nagar,
    Vijapur Road,
    Solapur.
    Presently in Yerwada Jail, Pune                              ... Appellant/
                                                                 Orig. Accused
                     versus

    The State of Maharashtra
    (At the instance of 
    Vijapur Naka Police Station,
    Tal & Dist-Solapur)                                          ... Respondent

                                          .......

    •       Mr.P.R. Arjunwadkar, Advocate for the Appellant.
    •       Mr.H.J. Dedhia, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  21st SEPTEMBER, 2017
                            PRONOUNCED ON :  10th OCTOBER, 2017


    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. The present Appeal is preferred by the Appellant

against the Judgment and Order dated 31/01/2009 passed by

the Ad-Hoc Additional Sessions Judge, Solapur, in Sessions Case

No.264/07, whereby the Appellant was convicted for the offence

Nesarikar

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punishable u/s 302 of IPC and was sentenced to suffer

imprisonment for life and to pay a fine of Rs.1,000/- and in

default of payment of fine to undergo simple imprisonment for

three months. He was given benefit of set off u/s 428 of Cr.P.C.

for the period, for which he was in jail i.e. 07/07/2007 till

decision of the case on 31/01/2009.

2. We have heard learned counsel Mr.P.R. Arjunwadkar,

Advocate for the Appellant and Mr..H.J. Dedhia, APP for the State.

3. The prosecution case is in respect of the murder of one

Shardabai Dattatray Raut, who was the wife of the present

Appellant. According to the prosecution case, the Appellant

committed her murder on 25/06/2007 at 01.30 p.m in their

residential house at Vijapur Road, Solapur with the weapons like

stick, grinding stone, sickle and knife. According the prosecution

case, the Appellant was unhappy with the deceased because though

he did not eat meat, she used to cook meat in their house and that

was the bone of contention between the couple, which gave rise

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to frequent quarrels. As per the prosecution case, one such

quarrel on the fateful day led to the present crime. The FIR in

the present case was lodged by one Bharat Ananda Mane, who

was the brother of the deceased. He has given history of quarrels

between the couple. According to him, on that day, Appellant's

son Kundalik informed him about the incident. Thereafter he

went to the spot and found that his sister was lying in a pool of

blood and thereafter he informed the police and lodged his FIR.

The investigation was carried out. The spot panchanama was

conducted. The Appellant was arrested on the next morning.

Statements of the witnesses were recorded. After the

investigation was over, the charge-sheet was filed in the Court of

Chief Judicial Magistrate, Solapur, who committed the case to the

Court of Sessions.

4. During the trial, the prosecution examined seven

witnesses. P.W.7 Dr.Vijay Krishna Satale, had conducted post-

mortem on the dead body and had noted about 20 injuries.

Some of the injuries were CLWs. There were many chop wounds

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and contusions. The injuries were mostly on the upper part of

the body i.e. on the chest, shoulder, head and on hands and also

on the forearms. The Medical Officer noted fracture of skull at

three places and the cause of death was noted as, death due to

head injury with injury to neck. The Medical Officer noted that

the injuries were possible by knife, wooden stick and grinding

stone.

5. Besides the Medical Officer, the prosecution examined

the police officers who had conducted the investigation. P.W.3

Gangu Muthanna Gavandi, was a Pancha for the inquest

panchanama. But she did not support the prosecution case.

P.W.4 Shivdas Bhimsha Rankhambe was a Pancha for the spot

panchanama, in whose presence various articles were recovered

from the spot, which included pieces of bangles, a wooden stick,

a sickle, a knife, a grinding stone, white shirt with full sleeves

and a dark green pant. The articles were soaked in blood. The

C.A. Report showed blood of 'A' group on most of these articles.

Since those were found at the spot, where the deceased was

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lying in a pool of blood, this circumstance does not help either

the prosecution or the defence. P.W.5 PI Dinkar Digambar

Chandanshive, P.W.6 P.H.C. Ravindra Madhukar Kulkarni have

deposed about the investigation that was carried out.

6. The main witnesses in this case for the prosecution are

P.W.1 Bharat Anand Mane, who had lodged the FIR and P.W.2

Kundalik Dattatray Raut, who was the younger son of the

Appellant and the deceased.

7. P.W.1 Bharat Mane has deposed that the Appellant had

married this witness's sister and the couple alongwith their two

sons, was residing at Solapur. Their daughter Saraswati got

married to one Samadhan who was the brother of this witness

P.W.1. According to him, the Appellant was not happy with the

marriage and on that count, the Appellant used to beat the

deceased Sharda. This witness has also deposed that the

Appellant was unhappy because the deceased used to cook meat

against his wishes. For this reason also the Appellant used to

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beat the deceased. He further deposed that on 25/06/2007, at

about 01.30 p.m. Kundalik Raut came to his handcart when this

witness was selling Bananas on his handcart. Kundalik called

him to their house because there was quarrel between the

Appellant and the deceased and Kundalik had seen blood stains

on the Appellant's nose. Thereafter P.W.1 went to the house of

the Appellant and saw that the deceased was lying in a pool of

blood with the aforementioned articles lying nearby. He has

further deposed that he thereafter made enquiries with a

neighbour named Jagu Mavshi, who informed him that there

was quarrel between the couple. Thereafter this witness went to

the police station and informed about the incident. The police

took down his statement and it was treated as FIR. The offence

was registered vide C.R.No.146/07, at Vijapur Road Police

Station u/s 302 of IPC against the Appellant. This witness is not

an eyewitness to the incident. He has deposed about the possible

motive for commission of the murder. According to him, the

main reason for the quarrel was that the deceased used to cook

meat against the wishes of the Appellant. However, his

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deposition shows that the Appellant had accepted the

arrangement that the deceased could cook his vegetarian food

first and after his dinner, she could cook non-veg food. Learned

Counsel Mr.Arjunwadkar submitted that since this arrangement

was already in place, there was no reason on that day for the

quarrel on this ground and any way this motive was not so

strong so as to drive the Appellant to commit murder of his wife.

8. P.W.1 Bharat Mane has further deposed that at 01.30

p.m. P.W.2 Kundalik Raut informed him about the quarrel. But

significantly this witness does not say that P.W.2 Kundalik told

him that he had seen the dead body of the deceased in the

house. This is important in the context of the deposition of the

P.W.2. The evidence shows that the FIR was lodged at about

05.00 p.m. and in his cross-examination P.W.1 has stated that

he had been to the police station at 01.30 p.m. and again at

02.00 p.m. He further added that he had gone to the police

station only once. There is no mention of the visit to the police

station at 05.00 p.m. when the FIR was registered.

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9. P.W.1 has deposed that he was present in the police

station for about 2 ½ hours. Besides this fact, the evidence of

this witness does not mention any other significant fact.

10. P.W.1 Bharat has deposed that there were 5-6 shops

adjacent to the shop of the Accused/Appellant. He has also

admitted that the Appellant had taken one room on rental basis

for this witness. This shows that not only the relations between

the couple were cordial, but the Appellant was also helping the

brother of the deceased i.e. P.W.1 Bharat Mane.

11. The prosecution thereafter has relied on the evidence

of P.W.2 Kundalik, who was the younger son of the Appellant

and the deceased. This witness, P.W.2, is the most important

witness in the trial. Though he had not seen the actual assault,

according to the prosecution case, he was the first person to reach

the spot of incident and he had seen the Appellant at the spot.

This witness is a child witness. When he deposed before the

Court, his age was 12 years and at the time of incident he was

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about 11 years of age. In a given case, if it is found that the

evidence of a child witness is fully reliable, conviction can safely

be based on his evidence. But the rule of prudence requires that

the evidence of such witness should be corroborated on material

particulars of the facts of the case. Therefore, we have

scrutinized his evidence very carefully. According to P.W.2

Kundalik Raut, he and his elder brother Shivaji were residing

with their parents at Solapur. Both these brothers were studying

in Jagruti Vidya Mandir School. P.W.2 Kundalik was studying in

the 6th standard and his brother Shivaji was studying in the 8 th

standard. Their school timing was from 11.30 a.m. to 05.30 p.m.

Their recess was between 02.30 p.m. to 03.00 p.m. According to

him, the Appellant used to go to his Barber Shop at about 08.00

a.m. and used to come back at 07.00 to 07.30 p.m. He has

deposed that there used to be quarrels between his parents as

the Appellant did not like his wife - deceased - cooking and

eating meat in the house. The couple used to beat each other.

According to P.W.2 Kundalik, on the fateful day i.e. on

25/06/2007, the Appellant had gone to his shop at 08.00 a.m.

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At 09.00 a.m. he returned home. He has further deposed that

there was quarrel between the couple. This witness then tried to

call P.W.1 Bharat. But he had already left for his business of

selling Bananas on his handcart. P.W.2 has further deposed that

the Appellant had gone back to his shop. The deceased had

prepared lunch for the Appellant and handed over the tiffin to

this witness to hand it over to the Appellant while going to the

school. When this witness and his brother went to the

Appellant's shop, the Appellant was not found there. Therefore,

they left the tiffin there and proceeded to attend their school.

According to this witness, thereafter, at about 12.30 p.m., the

Appellant came to the school and gave him and his brother

Rs.5/- each for buying lunch and then started proceeding

towards their house. According to P.W.2, he and his brother

suspected that the Appellant was going home and would start

beating their mother. Therefore they followed him. It is his case

that they stopped in the lane and saw their father's bicycle near

the house. Then they returned to their school. This witness has

further deposed that, in the lunch recess his brother Shivaji and

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he himself came back to their house. Even at that time, they saw

the Appellant's bicycle near their house. P.W.2 Kundalik then

entered the house and saw that the Appellant had changed his

clothes and was leaving the house. He saw that his mother was

lying in a pool of blood inside the house. He saw the weapons

and articles lying near her. P.W.2 Kundalik disclosed that, he

informed their neighbour Jaggu Mavshi. He also informed

his brother Shivaji and thereafter both of them rushed to

inform the P.W.1 Bharat Mane. They came back to their

house with Bharat Mane. P.W.1 went to the police station

and gave information and the police thereafter recorded his

statement.

12. Mr.Arjunwadkar, the learned counsel for the Appellant

submitted that the evidence of this witness is full of omissions

and the occurrence of events as narrated in his deposition, are

highly improbable. The learned counsel Mr.Arjunwadkar further

submitted that this witness was clearly tutored by P.W.1 and

from the evidence, it was clear that, he was completely under

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control of his maternal Uncle i.e. P.W.1 and therefore he was

deposing as per the directions of the P.W.1. He has invited our

attention to the admission in the cross-examination that this

witness, P.W.1, had read his police statement before he deposed

in the Court. Mr.Arjunwadkar submitted that there cannot be a

more glaring instance of tutoring of a witness. Mr.Arjunwadkar

further submitted that his evidence should be rejected and there

was no other evidence against the present Appellant.

13. We have carefully gone through the evidence of this

witness P.W.2. We find that the events narrated by him are

improbable in the context of their daily routine. As far as motive

is concerned, from the evidence of P.W.1 it is clear that the

dispute about cooking meat was reasonably sorted out and the

Appellant did not mind if meat was cooked after his dinner. The

evidence of P.W.2 Kundalik does not show that on that

particular day, the deceased had tried to cook meat. His

deposition indicates that the quarrel which had started in the

morning did not continue and the Appellant returned to his

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shop. The deceased had even prepared lunch for the Appellant

and had given the tiffin to P.W.2 for delivering it to the

Appellant. This apparently shows that the quarrel was over. The

Appellant had gone to his shop and the deceased had even

cooked food for him. His evidence further shows that at around

12.30 p.m. the Appellant had been to their school and had given

them Rs.5/- each for taking lunch. But this fact was not

appearing in the statement of this witness recorded by the police

and this omission from the police statement of this witness has

remained unexplained. Even the story that this witness and his

brother followed their father to their house, after they had taken

Rs.5/- each from their father, was not mentioned in their

statement before the police. The description of the clothes worn

by the Appellant at that time was not given. Thus, these

omissions from the police statement and the improvements

made during his deposition lead to the conclusion that no such

event had taken place at 12.30 p.m. and it is not shown that the

Appellant had gone to his house at 12.30 p.m.

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14. The evidence of this witness further shows that the

lunch recess of this witness was from 02.30 p.m to 03.00 p.m. It

is not his case that they used to return home for having lunch

during their recess. It is his specific case that they used to go to

their school at 11.30 a.m. and used to return at 05.30 p.m.

Therefore there was no special reason for this witness to have

returned home in the recess, which was from 02.30 p.m. to

03.00 p.m. It appears that this story was brought forth by the

prosecution only to explain his presence in the house at that

time which was a departure from their normal routine.

15. P.W.1 has deposed that, at 01.30 p.m., P.W.2 Kundalik

approached him and told him that he had seen the Appellant

with bleeding nose in their house and that there was quarrel

between the Appellant and the deceased. P.W.1 has further

deposed that he had been to the police at 01.30 p.m. and had

gone there again at 02.00 p.m. Though he has corrected himself

by saying that, he had visited the police station only once on

that day. P.W.5 PI Dinkar Chandanshive has deposed that he

had visited the spot at around 02.30 p.m. Therefore this timing

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shows that P.W.1 and the police had already reached the spot

before the P.W.2 had his recess at 02.30 p.m. Even giving

concession for the time at which the P.W.1 and the police came

to know about the incident, it does not match with the case of

P.W.2 that he had returned home during lunch recess. The

prosecution has not examined any witness to show that the

lunch recess was not at 02.30 p.m. but was much earlier. This

discrepancy, when viewed from the fact that the P.W.1 has not

stated that P.W.2 Kundalik informed him that he had seen his

mother lying in a pool of blood in their house; indicates that

P.W.2 had not seen anything. P.W.2 has specifically admitted

that it was P.W.1 who had told him that the Appellant had

committed the murder of the deceased.

16. The prosecution has not examined any witness from

the school to show at what time P.W.2 had attended the school

and at what time he had left the school. The prosecution has not

explained as to why any student would leave his class at 12.30

p.m. without any permission from the teacher. It was not very

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difficult for the prosecution to lead evidence in that behalf to

corroborate the story of this witness P.W.2. The prosecution has

not examined Jaggu Mavshi who is referred to by both P.W.1

and P.W.2 and no explanation is offered as to why she was not

examined. P.W.2 has admitted that there were surrounding

houses near their house and there were shops near the shop of

the Appellant and yet nobody from either of these localities is

examined to corroborate the story of P.W.2 or even that of

P.W.1. Thus, we find that there is absolutely no corroboration

for the version stated by P.W.2 during the trial.

17. Another disturbing factor of this case is that P.W.2 has

admitted that he had read his statement before the police before

he deposed in the Court. This is a clear case of tutoring by the

prosecution and not much credence can, therefore, be given to

the evidence of this witness. In this context we rely on the case

of Nathu Manchhu Vs. State of Gujarat, reported in 1978

Cr.L.J. 448, which was the judgment delivered by the full Bench

of Gujarat High Court. It was observed in that case that though

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the evidence of a witness, whose earlier police statement was

read over to him before he stepped into the witness box, does

not become inadmissible, but the probative value of the

evidence of this witness is definitely affected. In the present

case, we find that this evidence of P.W.2 is greatly affected by

the fact that his police statement was read over to him before his

deposition. He has also admitted during deposition that he was

completely dependent on P.W.1 and therefore the possibility of

tutoring is too strong to be ruled out. In such circumstances, we

do not find it safe to rely on his evidence.

18. This witness P.W.2 has further stated that he had

visited the police station about 03.00 p.m. with his maternal

uncle P.W.1 when P.W.1 narrated the incident to the police.

Even this story does not match with the version of P.W.1 which

shows that he had gone to the police station at 01.30 p.m. itself.

The record shows that the FIR was in fact lodged at 05.10 p.m.

on 25/06/2007. This time of lodging of the FIR does not match

with the story of either of these two witnesses.

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19. The prosecution thereafter tried to prove that the

Appellant had absconded after the incident and had stayed in a

lodge at Vijapur overnight. To prove this fact, the prosecution

has tried to bring on record the register of the lodge at Vijapur.

But nobody from that lodge was examined and the register was

not proved. No witness from the said lodge was examined to

prove that the Appellant stayed there. The Appellant was arrested

at about 09.10 a.m. on 26/06/2007 at Vijapur Police Station

itself. The arrest panchanama Ex.30 shows that there were no signs

of any injury on the person of the Appellant. Mr.Arjunwadkar the

learned counsel for the Appellant rightly submitted that looking

at the number and nature of the injuries on the deceased there

were clear signs of struggle. There were defence injuries on her

hands. The evidence of P.W.2 shows that she was a healthy lady.

Therefore there should have been at least some minimum signs

of struggle in the form of injuries on the person of the Appellant.

Since there were absolutely no signs, it shows that the Appellant

was not involved in the incident at all. We find considerable

force in these submissions of Mr.Arjunwadkar.

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20. The articles recovered from the spot of incident show

that there were different kinds of weapons used in commission

of murder. The learned counsel Mr.Arjunwadkar submitted that

this indicates that there were two or more persons who had

assaulted the deceased. All these articles including shirt and

pant, found near the spot, showed presence of human blood and

it was of blood group 'A'. But these articles were found at the

spot itself. They are hardly of any consequence in proving

prosecution case connecting the present Appellant.

21. The Appellant has taken a specific defence by

submitting the written statement u/s 313 of IPC. According to

him he had made the deceased discontinue her business of

selling bananas on handcart because his own income was

sufficient to maintain his family. According to him, she was

upset because of this and her behaviour had changed. He has

suggested in his statement that his wife could have developed

some love affair with somebody, but he was not aware of it and

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that person or persons must have committed her murder. He has

also suggested that her relations with her neighbours were not

good and there were frequent quarrels and possibly therefore his

wife was murdered. At around 05.30 p.m. he came to know that

his brother-in-law has given complaint against him and police

were looking for him and therefore he got scared and spent that

night in a nearby temple and on the next day, he surrendered

before the police. He has denied that there was quarrel on the

ground of cooking meat. In short his defence is of total denial

and he has tried to explain certain facts in respect of the arrest

and probable cause behind the murder.

22. Be that as it may be, as discussed earlier we find that

the evidence led by the prosecution is lacking on material

aspects. The evidence of P.W.1 and P.W.2 is not reliable and we

do not find it safe to rely on their evidence to maintain the

conviction of the present Appellant. In result following order :

ORDER

1. The Appeal is allowed.

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2. The Judgment and Order dated 31/01/2009 passed by the Ad-Hoc Additional Sessions Judge, Solapur, in Sessions Case No.264/07, are set aside.

3. The Appellant is acquitted of all the charges.

4. The Appellant shall be released forthwith, if not required in any other case.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)