Ashok S/O. Maniram Wadde vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 12564 Bom

                                                     1                     apeal181.18.odt


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

                        CRIMINAL APPEAL NO.181/2018

      Ashok s/o Maniram Wadde,
      Aged about 32 years, Occ. Labour,
      R/o Aloni, Tq. Gadchiroli,
      Dist. Gadchiroli.                                       .....APPELLANT

                               ...V E R S U S...

      State of Maharashtra, through
      Police Station Officer,
      Police Station, Gadchiroli,
      Dist. Gadchiroli.                                       ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. N. B. Rathod, Advocate for appellant.
 Mr. T. A. Mirza, A.P.P. for respondent.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE AND
                                       AMIT B. BORKAR, JJ.
                               DATE:-  SEPTEMBER 3, 2021


 J U D G M E N T (Per: V. M. Deshpande, J.)

1. Being aggrieved by the judgment and order of

conviction passed by learned Sessions Judge, Gadchiroli in

Sessions Trial No.77/2015 dated 13.07.2016, the appellant has

approached to this court to challenge his conviction and sentence

imposed upon him by the impugned judgment.

2 apeal181.18.odt

2. The appellant was convicted for the offence punishable

under Section 302 of the Indian Penal Code for committing

murder of his wife Babita. He was directed to suffer imprisonment

for life and to pay a fine of Rs.2,000/-. API Umesh Besarkar

(PW17) was attached to Police Station, Gadchiroli. On

04.04.2015, he received a telephonic call from village Aloni about

the death of Babita. Thereafter, he went to the spot and found

dead body of Babita. He called two panchas and prepared spot

panchanama in their presence. Spot panchanama is at Exh.-43.

The spot panchanama was proved by pancha witness Vishal

Kurudkar (PW15). Inquest was done over the dead body. Inquest

panchanama is at Exh.-44. Thereafter, he sent dead body to

General Hospital, Gadchiroli for post mortem. After conducting

post mortem, clothes of Babita were produced by WPC Jyoti.

Those were seized under seizure panchanama, Exh.-38.

3. In the meanwhile, Madhukar Kirange (PW1), came to

Police Station, Gadchiroli and lodged his oral report Exh.-10. On

the basis of report, a crime was registered vide Crime

No.47/2015.

3 apeal181.18.odt

As per the oral report, marriage of Babita was

performed with appellant nine years ago and she was having one

son Shubham, aged about 5-6 years. According to the FIR, the

appellant was habituated to drinks an used to take suspicion over

the character of deceased and used to pick up quarrel under the

influence of liquor. Due to his ill treatment, Babita came to reside

at his house at Lekha and stayed there for about two years. On

27.01.2014, the appellant came and in presence of panchas, he

gave written assurance and took Babita at his place.

The FIR further states that on 04.04.2015 at about

01.00 O'clock in night, the sister of the appellant informed

Madhukar's son, Vijay (PW8) and intimated about death of Babita.

Therefore, he and his family members and other relatives came to

Mouja Aloni at about 07.00 O'clock. That time he noticed that

dead body of Babita was kept in varandha. There was an injury

on her neck. The FIR further states that Madhukar made inquiry

with Shubham (PW11) as to who assaulted on his mother. Upon

that, it was revealed to him by Shubham that the appellant

assaulted by means of axe near the house of Dada and thereafter

brought the dead body. These are the statements made in the FIR.

4 apeal181.18.odt

4. According to the prosecution case, during the course of

investigation, the appellant made disclosure statement on

06.04.2015 and agreed to show the place where he concealed the

axe. Admissible portion from his memorandum statement is at

Exh.-39. Accordingly, the police party reached to the spot, which

is the cattle shed near the house of one Deorao and from one

container (Dholi), he took out the axe which was seized on the

spot. His recovery panchanama is at Exh.-40. Prior to that, on

04.04.2015, clothes of the appellant were also seized under

seizure panchanama Exh.-27.

The investigating officer recorded statement of various

witnesses and also sent Muddemal to Chemical Analyser (CA) vide

CA requisition, Exh.-48. The C.A. reports are placed on record.

Those are Exhs.54 and 55. After completion of usual investigation,

charge-sheet was filed.

The learned Magistrate, in whose Court charge-sheet

was filed, found that the offence is exclusively triable by the Court

of Sessions. He therefore committed the case to the Sessions

Court and thereafter it was registered as Sessions Case

No.77/2015.

5 apeal181.18.odt

5. The learned Sessions Judge on 14.08.2011 below

Exh.-4 framed charge against the appellant. The appellant denied

the same and claimed for his trial. In order to bring home guilt of

the appellant, the prosecution examined in all 17 witnesses and

also relied on memorandum statement, seizure panchanama

showing seizure of clothes of the appellant, C.A. report and other

proved documents.

Madhukar (PW1), Kusum (PW3) are the parents of the

deceased. Shamrao (PW4) is uncle of the deceased. Vijay (PW8)

is her brother.

Gajanan (PW2), a pancha of spot panchanama has

turned hostile. Kiran (PW6), Deorao (PW10) are the sister and

uncle of the appellant. They did not support the prosecution case

at all and they were declared hostile. Suresh (PW7) has proved

the seizure panchanam Exh.-18 under which the chit is recovered.

Prashant (PW9) is a police constable who took muddemal to C.A.

Dr. Nilkanth Masram (PW12) has conducted post mortem and

proved the post mortem report which is at Exh.-32. Manik Wadde

(PW13) was Sarpancha of village to whom Deorao Wadde told

that the wife of Babita has sustained injury over her neck. He

6 apeal181.18.odt

gave information to Police Station, Gadchiroli by telephone.

Nandkishor (PW14) is a pancha witness, who has proved seizure

panchanama of clothes of accused as well as him memornadum

statement. Vishal (PW15) has proved spot panchanama, Dhanraj

Zade (PW16) has proved seizure panchanama, Exh.-18. Umesh

(PW17) is the investigating officer. Shubham (PW11) is the son of

the deceased as well as the appellant and he has supported the

prosecution case inasmuch as according to the prosecution, he has

given eye witness account of assault made by his father upon his

mother.

6. During the course of hearing before this Court,

Mr.Rathod, learned counsel for appellant, straneously urged that

the eye witness account of Shubham is introduced in the

prosecution case at the behest of his grandparents. He submitted

that there is no corroboration to Shubham's version. Therefore,

the Court should be reluctant to accept his version. He submitted

that if the evidence of Shubham is placed out of consideration

then the prosecution has utterly failed to prove its case against the

appellant beyond reasonable doubt. He placed reliance on the

Division Bench judgment of Patna High Court in J. Lodhin Vs.

7 apeal181.18.odt

State; reported in 1953 XXXII 217; State of Madhya Pradesh Vs.

Ramesh and anr.; reported in (2011) 4 SCC 786, P. Ramesh Vs.

State represented by Inspector of Police; reported in (2019) 20

SCC 593, and lastly Hari Om Alias Hero Vs. State of Utter

Pradesh; reported in (2021) 4 SCC 345 to show that without there

being any corroboration, the testimony of child witness may not

be accepted.

7. Per contra, Mr.Mirza, learned A.P.P. for respondent-

State, submitted that Shubham (PW11) is the most natural

witness. His mother was assaulted therefore there is least chance

that he will state falsehood before the Court. He also submitted

that the corroborative piece of evidence namely; C.A. report shows

the finger of guilt towards the appellant. He, therefore, prays for

dismissal of the appeal.

8. From the evidence of Umesh Besarkar (PW17) and the

evidence of Manik Wadde (PW13), it is clear that factually the

telephonic information was received at Police Station about the

death of Babita and it was given by Manik (PW13).

8 apeal181.18.odt

Vijay (PW8), deposed before the Court that he received

telephone call from sister of the appellant intimating that accused

has killed his sister. Though Madhukar (PW1) did state that he

received telephonic call from sister of the accused, his evidence is

conspicuously silent that the sister of the appellant intimated that

the appellant has killed Babita as claimed by Vijay (PW8). As per

the evidence of Madhukar (PW1), he immediately along with his

relatives reached to mouja Aloni. Though in the evidence, he is

not disclosing at what time he reached to mouja Aloni, in the FIR

he did state that they reached to mouja Aloni at 07.00 O'clock.

9. Form the evidence of relatives of Babita, it is very clear

that firstly they reached to mouja Aloni at the matrimonial house

of Babita. There they noticed the dead body of Babita. Thereafter,

they made inquiry with Shubham who disclosed them about the

incident and thereafter Madhukar (PW1) reached to Police

Station, Gadchiorli and lodged oral report against the appellant.

The printed FIR is at Exh.-11. Column no.3 (b) is in respect of the

information received at Police Station. It shows that it was

received on 04.04.2015. However, there is an overwriting in

9 apeal181.18.odt

respect of the time. Two timings are appearing. It is counter

signed by PSI Jayant Mullewar. This Jayant Mullewear is not

examined by prosecution. The offence was registered at 10:30.

10. From the evidence of Manik (PW13), the Sarpancha it

is clear that though intimation of death was given to him by

Deorao. Manik's evidence is silent that Deorao informed him that

the appellant is the assailant. This Deorao was examined by the

prosecution to substantiate the prosecution claim that Shubham

informed to him that his father has killed him. He resiled

from his earlier statement to that effect. However, at the earliest,

when he met Manik. From Manik's evidence, it is clear that the

said fact was not disclosed to him by Deorao. From the evidence

of the grandparents and maternal uncle of Shubham, it is clear

that he was in their company from 07:00 O'clock on 04.04.2015

onward. Police statement of Shubham was recorded on the very

same day. However, at what time his statement was recorded is

not brought on record by the prosecution. However, since the

prosecution has not examined the person who has recorded FIR

i.e. PSI Jayant Mullewar, it is really at guesswork as to whether

Shubham was along with his grandmother in police station at the

10 apeal181.18.odt

time of recording of the FIR and thereafter his statement was

recorded. In any case, as we have seen that Shubham was in

company of his parents and maternal uncle.

11. In J. Lodhin Vs. State, (supra), the Patna High Court

observed as under:

"...but it has just been laid down in 'Darpara Potdarin v. Emperor', (1938) AIR (Pat.) 153, 158 (A), that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility oil coaching is eliminated..."

The Court further observed as under:

"..Kenny has observed in his Outlines of Criminal Law at page 420 (1952 edition) that children arc a most untrustworthy class of witnesses, and it is found from common experience that they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, although intelligent children are very often acutely observant of facts and events external to themselves and remember them with great accuracy."

The Hon'ble Apex Court in State of M. P. Vs. Ramesh

and anr.; supra, has observed thus:

11 apeal181.18.odt

"8. Mangoo & Anr. Vs. State of Madhya Pradesh, in AIR 1995 sc 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

9. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

12 apeal181.18.odt

Similarly, in Hari Om alias Hero Vs. State of Utter

Pradesh, (supra), the Hon'ble Apex Court rules as under:

"22. .....The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross- examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored...."

13 apeal181.18.odt

12. From the law laid down by the Hon'ble Apex Court, it is

clear that evidence of child witness cannot be rejected per se but

settled law is that such evidence is required to be considered with

close scrutiny and only on being convinced about the quality of

statement or its reliability, base the conviction by accepting the

statement of the such witness.

13. As per the FIR, the age of Shubham was between 5 to 6

years. Shubham was examined as PW11. His date of birth is not

brought on record anywhere. The learned Judge before whom the

trial was conducted put some preliminary questions and was

satisfied and thereafter he administered oath to him. His evidence

was recorded on 10.06.2016 and the incident in question was

occurred on 04.04.2015. Thus, the evidence recorded is after

lapse of one year. At the time of recording of evidence, his age is

recorded as six years and therefore on the day of the incident, he

was just 5 years old body. In his evidence, he did state that he and

his mother used to reside at Aloni at their house. His father was

doing agriculture work. He did state that the incident took place

14 apeal181.18.odt

in the night time in his house at Aloni. That time, he and his

mother were present. According to this witness, there was a

quarrel between his parents as his mother did not go to sleep with

the accused in his bedroom. He further states that when his

mother went near the place where the bullocks were tied, the

appellant killed her by blade of axe. He claims that at that time,

he was standing near the cattle-shed of Deorao Wadde, to whom

he called as Dada. He, thereafter states that he went to the house

of his aunt Kiran (PW6), who was examined and who has turned

hostile and Goliakka who was not examined. He had stated that

the appellant used to quarrel with the deceased usually. From his

evidence, it is clear that the incident has occurred in the night

hours and as per the prosecution, between 23.00 hrs. to 01.00

hrs. From the evidence of Deorao (PW10), before he was declared

as hostile, it is clear that there was no source of light and therefore

he used the torch.

14. Evidence of Shubham (PW11), if closely scrutinized,

his presence where the incident of assault has occurred became

suspicious because in first part of his evidence he did state that the

incident took place in the night time in his house at Aloni. In the

15 apeal181.18.odt

second part, as per his evidence, after the quarrel, his mother

went close to the cattle-shed of Dadarao where she was assaulted.

15. Exh.43 is the spot of incident. It is recorded in the spot

panchanama that when the work of recording spot of incident was

going on, that time Shubham (PW11) came there and told the

panchas and the investigating officer that he will show the place

where his mother was assaulted and thereafter he took them near

the place. From the said, it is clear that the spot of occurrence was

about 20 Mtrs. away from the residential house of the appellant.

16. In the evidence, Shubham is not claiming that when his

mother went near cattle-shed, he also followed and/or she took

him along with her. Looking to the distance and the night hours,

it is difficult to accept that a boy aged about 5 years on his own, in

the pitch dark, will venture to step outside the house and will

travel the said distance and could see the incident.

In the cross-examination, it is brought on record that he

is residing with his grandmother at village Lekha and at the time

of attending the Court for giving his evidence he came along with

them. Of course, he has denied that he was told to state by them.

As we have observed, the version of this boy cannot be digested by

16 apeal181.18.odt

any prudent person that in the dead hours of night in pitch dark,

he will go near place of incident.

17. In view of the above, though Shubham may be a child

witness, he is a competent witness to depose before the Court.

The Court will have to scrutinize as to whether there is any other

corroborative piece of evidence which could stand to the scrutiny

of law to support his version.

18. The appellant was arrested on 04.04.2015 itself. His

arrest panchanama is at Exh.-47. His arrest panchanama would

show that he was arrested at 17.25 hrs.

On 04.04.2015 itself, after his arrest, his clothes were

seized under seizure panchama Exh.-37 in presence of pancha

witness Nandkishor Kumbhare (PW14).

19. Exh.-37 shows that the clothes which were on the

person of the appellant, they were having blood stains. It is not

the prosecution case that after the incident till his arrest, the

appellant was absconding. We have seen that as per the arrest

panchanama he was arrested at 17:25 hrs. It is hard to believe that

17 apeal181.18.odt

right from the morning till his arrest, he will be putting very same

clothes on his person having blood stains on the same. Further,

the contemporaneous document i.e. Exh.-37 as well as evidence of

Nandkishore (PW14) and Umesh (PW17), the investigating officer

are conspicuously silent that after the clothes were seized, they

were "sealed".

20. Nandkishore (PW14) has proved the admissible portion

from memorandum statement of appellant which was recorded on

06.04.2015. It is at Exh.-39. His evidence would show that

thereafter the appellant led police party to the said place near his

house and took out the axe, which was kept below the storage of

food grains in the cattle shed and prepared recovery panchanama

at Exh.-40. Apart from the fact that even this panchanama is silent

as well as substantive evidence of pancha is silent about sealing.

What is important to note is that at the time of seizure,

blood of axe was found to be washed. Though it is stated that

near the wooden part there were faint bloods stains.

21. The investigating officer has sent muddemal on

12.04.2015 to C.A. under Exh.-48. The C.A. report is at Exh.-54.

This Court on numerous occasion has reiterated the law laid down

18 apeal181.18.odt

by various courts. In order to put reliance on the corroborative

piece of evidence, it is obligatory on the part of the prosecution to

show that when muddemal was seized that time itself it was

properly sealed in order to rule out the tampering with the same.

In this case, it is clear that the prosecution case is

completely short of that aspect. Therefore, it will not be proper on

the part of this Court to keep reliance on the said piece of

corroborative evidence.

22. According to the prosecution, the deceased was

subjected to cruelty at the hands of the appellant. Due to his

torture she was required to reside along with her in the parent's

house and she stayed there for a period of two years. The

appellant was also addicted to liquor and used to take suspicion

over her character. These were the facts which were asserted by

Babita's father Madhukar (PW1) in his oral report Exh.-10.

FIR is not a substantive piece of evidence. It could be

used either for corroboration or for contradiction of the maker.

Though these facts were asserted by the first informant in the FIR,

Madhukar did not speak a single word about the same in his

substantive evidence.

19 apeal181.18.odt

23. Other relatives of Babita claimed that the matter was

compromised and the appellant gave assurance in writing. Though

the said writing was seized under seizure panchanama Exh.-18, its

contents were not proved. Therefore, the said was not exhibited.

If the document was not exhibited and the contents were not

proved, this Court will be precluded from reading the said

document. Further, it is really hard to believe that no action was

taken against the appellant by Babita's parents or her brother

though she was subjected to cruelty resulting into she staying

there for a period of two years.

24. In that view of the matter, we have no hesitation to

reject the claim about the motive as submitted by the learned

prosecutor.

25. In view of the aforesaid, we are of the view that the

prosecution has not proved its case beyond reasonable doubt

against the appellant inasmuch as it is the defence of the accused

that the deceased accidentally fell on the axe, which is normally

there in the cattle shed as stated by Manik (PW13), resulting into

her death and this possibility is not completely ruled out.

                                               20                   apeal181.18.odt

 Resultantly, we pass the following order.




                                ORDER

        (i)            The appeal is allowed.
        (ii)           Judgment and order of conviction passed
        by      learned        Sessions   Judge,   Gadchiroli       dated

13.07.2016 in Sessions Case No.77/2015 is hereby quashed and set aside.

(iii) The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code.

(iv) The appellant, who is in jail shall be released forthwith, if not required in any other offence.

                      JUDGE                                JUDGE



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