Bombay High Court
Ganesh [email protected] ... vs The State Of Maharashtra on 29 April, 2022
Bench: S.S. Shinde, S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.603 OF 2021
Ganesh Anmappa @ Hanmantappa
Talwar ... Appellant
Versus
The State of Maharashtra ... Respondent
....
WITH
INTERIM APPLICATION NO.589 OF 2021
IN
CRIMINAL APPEAL NO.603 OF 2021
....
Mr. Swaraj S. Jadhav, Appointed Advocate for the Appellant.
Ms. G.P. Mulekar, APP, for the Respondent-State.
....
CORAM : S. S. SHINDE AND
SARANG V. KOTWAL, JJ.
RESERVED ON : 19th APRIL, 2022
PRONOUNCED ON : 29th APRIL, 2022
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1 The Appellant has challenged the judgment and order
dated 9.12.2019 passed by the District Judge-2 and Additional
Sessions Judge, Sangli in Sessions Case No.188/2018. By the
impugned judgment and order, the Appellant was convicted for
commission of offence punishable under Section 302 of IPC and
was sentenced to suffer life imprisonment and to pay a fine of
Deshmane(PS)
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Rs.1,000/-; and in default to suffer R.I. for three months. He was
given benefit of set off under Section 428 of Cr.P.C.
2 Heard Shri Swaraj Jadhav, learned counsel appointed for
the Appellant and Smt. G.P. Mulekar, learned APP for the State.
3 The prosecution case, in brief, is that the Appellant was
cousin of mother of Ganesh (the deceased in this case). He was
residing next to the house of the deceased. The deceased was nine
years old boy. On 15.7.2018, the Appellant went to the deceased's
house and asked him to get liquor for him. At that time, the
deceased was having his food. He replied that he would get liquor
after he finished his food. The Appellant got enraged. He sent
Ganesh's sister, who was present in the house to get some articles.
After she left the house, the Appellant committed murder of Ganesh
by hanging him with a rope. When Ganesh's sister returned, she
saw the shocking scene. She was slapped and threatened by the
Appellant. The Appellant told her not to disclose the incident to
anybody. Ganesh's sister, instead, went to her neighbours and told
them about the incident. They came on the spot. They saw that
the deceased was hanging from the ceiling. They informed the
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police. The mother of the deceased, who was not present and who
had gone to a different city, was also informed. She came back at
around 3.00 p.m. and then her FIR was registered. The Appellant
was arrested in the night. The investigation was carried out. The
statements of the witnesses were recorded. The statement of the
child witness i.e. sister of the deceased Ganesh was also recorded.
At the conclusion of investigation, the charge-sheet was filed and
the case was committed to the Court of Sessions.
4 During trial, the prosecution examined seven witnesses.
The defence of the Appellant was of total denial. After recording
the Appellant's statement under Section 313 of Cr.P.C. and after
hearing the parties, learned Judge convicted and sentenced the
Appellant, as mentioned earlier.
5 The name of the Appellant is Ganesh Anmappa Talwar
and the name of the deceased is Ganesh Yallappa Walmiki. The
prosecution case revolves around the evidence of child witness PW-
2 Laxmi Walmiki. She was sister of the deceased. Her version is
corroborated by two neighbours. The mother had lodged the FIR.
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6 Learned counsel for the Appellant submitted that it is a
case of circumstantial evidence. Nobody had seen the incident.
The evidence of PW-2 was not reliable. She was a tutored witness.
The FIR was not lodged immediately. The delay in lodging the FIR
is not explained. Even the statements of the witnesses are not
recorded immediately. This delay shows that the Appellant is falsely
implicated. There is no corroborative pieces of evidence to support
the version given by PW-2. Learned counsel for the Appellant also
relied on some judgments. Those judgments will be referred to in
the following discussion.
7 On the other hand, learned APP submitted that the spot
panchnama shows that there was no chair or anything else around
the spot, on which the deceased could stand and commit suicide.
Suggestion given to the witnesses about possible suicide of the boy,
is not correct. That theory is not acceptable. The Appellant was
found at the spot. His conduct was unnatural. There was no
reason for the witnesses to implicate him falsely. The Appellant has
not explained the circumstances against him which were within his
exclusive knowledge. The circumstantial evidence forms a
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complete chain of circumstances. There is no reason to disbelieve
PW-2 and she was a truthful witness. Learned Judge has rightly
relied on her evidence.
Reasons :
8 We have considered these submissions. PW-6 Dr. Rohan
Shirodkar has conducted the postmortem examination. He has
stated that on 15.7.2018 he received the dead body of the deceased
Ganesh aged about nine years. This witness conducted the
postmortem examination between 6.15 p.m. to 7.30 p.m. on
15.7.2018. He noted the following injuries :
Ligature mark patterned grooved abrasion situated on the
upper and middle part of the neck, above the level of thyroid
cartilage. It was dark, dried and parchment like. It was obliquely
oriented on anterior, posterior and lateral aspects of the neck.
There was congestion around the ligature mark. There was
imprint abrasion of the knot on the left submandibular region.
There was periligature abrasion of the size 0.7 cm x 0.5 cm and 0.5
x 0.5 cm on the left submandibular region 1 cm apart. There was
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ligature mark on the left side of the neck ascending superiorly,
posteriorly 2 cm below the posterior hairline to completely encircle
the back of neck and cross over to the right side from where it was
descending inferiorly and crossing over to the left side to meet at a
point 1 cm from the point of origin forming inverted V shaped
impression at left submandibular region.
The injuries were ante-mortem. There was 50 ml. semi
solid partially digested food particles in the stomach. According to
this witness, the cause of death was due to "hanging". According to
him "hanging" appeared to be homicidal unless proved otherwise.
He gave explanation that ligature material found constricted in the
neck. It was because of running noose with simple knot.
According to him, usually in case of suicidal death, noose is fixed
and normally in the case of homicidal death running noose is used
in conjunction with the fact that non availability of stool or chair
like heighted object in vicinity of crime scene.
9 We have carefully perused the medical evidence and we
do not find any reason to take a different view. We agree with the
opinion of this expert witness i.e. PW-6 Dr. Rohan Shirodkar that it
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was a homicidal death.
10 PW-1 Shivshankar Shegunshe was well conversant with
Kannada and Marathi languages. He was an Advocate practicing in
Sangli District Court since 2007. His services were taken as an
interpreter while recording the deposition of witnesses who knew
only Kannada.
11 PW-2 Laxmi Walmiki is the most important witness in this
case. At the time of recording of her evidence on 4.4.2019, she was
six years of age. She has deposed that name of her mother was
Jyoti. She herself, Hanmant and the deceased Ganesh along with
Jyoti used to reside together. Her mother used to earn their living
by begging. About the incident, she has deposed that the
Appellant, to whom she referred as 'Ganesh Mama', asked the
deceased, to whom she referred as 'Ganesh Anna', to bring liquor.
The deceased told him that he after finishing his meals, would
bring liquor. The Appellant got enraged and hanged the deceased.
The offence was committed when PW-2 was not in the house. The
Appellant gave her Rs.3/- to bring bidi and Re.1/- to get a
chocolate for herself. When she left to buy bidi and chocolate, at
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that time the deceased, Hanmant and the Appellant were in the
house. When she came back, the Appellant opened the door. He
told her not to disclose this incident to anybody otherwise she
would also be hanged like the deceased. He then slapped her. She
went to the neighbours whom she called 'Ramjan mama and mami'
and told them that the deceased was killed. The neighbour, to
whom she referred to as 'Ramjan mami' came there. She raised
hue and cry. PW-2's mother came after police had already reached
there. She identified the Appellant in the Court.
In the cross-examination, she gave clear answers. Her
father had left them since past many days. Her father resided at
Jaysingpur with PW-2's grandmother and aunt. In the cross-
examination, she was asked about one 'Raja mama'. She admitted
that 'Raja mama' and her mother used to quarrel frequently; and
that, he used to beat her mother. The deceased used to accompany
their mother when she used to go for begging. The deceased used
to obstruct 'Raja mama' when he used to beat their mother. She
further deposed that the Appellant was residing in the house which
was adjacent to their house. He was a mason. This witness was
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asked as to whether her mother or police told her about hanging of
the deceased. To this pointed question, she has given a categorical
answer that she told them. In the next question, she was asked
whether her mother told her about what was to be told to the
police. She answered that question in the affirmative, but, when
she was asked whether her mother told her what to depose before
the Court on that date, she stated that her mother did not tell her
what to depose before the Court. She was also asked whether the
police had told her to depose that the Appellant asked the deceased
to bring liquor. Even to this question, she emphatically said "no".
When some suggestions were put to her doubting her deposition,
she denied all such suggestions and she reiterated that the
Appellant had hanged the deceased and that the police had not
tutored her.
12 Before discussing the impact of this witness's evidence, it
is necessary to refer to the depositions of two neighbours who are
examined by the prosecution. PW-3 Geeta Ramjan Mulla was the
neighbour, to whom, PW-2 had rushed after she was slapped by the
Appellant. PW-3 was neighbour of both - the deceased as well as
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the Appellant. On the day of the incident, she was washing clothes.
PW-2 approached her. PW-2 called them to her house. PW-3 and
her husband went there and saw that the deceased was hanged.
The Appellant was sitting there itself. On watching the scene, PW-3
raised shouts. People in the area gathered there. After that the
police came there. Jyoti, mother of the deceased, had gone to
work. She came back. In the presence of these witnesses, PW-2
told her mother Jyoti that the deceased was hanged. The police
took Jyoti to police station.
In the cross-examination PW-3 stated that she gave her
statement before the police in Kannada. She did not know
anything about Jyoti's husband. She denied any knowledge about
the man by name 'Raja'. When she raised shouts on reaching the
spot, the Appellant was sitting there. In her police statement, she
has not stated that she and her husband had gone to the spot of
incident together.
13 PW-5 Tara Desai was another neighbour. On the day of
the incident, when she heard shouts, she looked through her
window and noticed that people had gathered in front of Jyoti's
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house. She went there. She saw that the deceased was in hanging
position. The police came there. At that time, the Appellant was
sitting on a platform near the door. This witness, then took PW-2
aside and enquired with her. PW-2 told her that the Appellant had
given her Rs.2/- and had asked her to bring bidi. When she came
back, the Appellant again gave her money and asked her to bring
sweets. She again went to bring sweets and when she returned, the
Appellant opened the door and PW-2 saw that Ganesh was hanged.
The Appellant slapped her twice and threatened her that he would
kill her if she disclosed that to anyone.
Thus, PW-5 Tara Desai has corroborated the version of
PW-2. PW-2's mother Jyoti came around 4.30 p.m. PW-5 also
acted as a pancha for the inquest panchnama and spot panchnama,
which are produced on record at Exhibits-23 and 24. She identified
the Appellant before the Court.
In the cross-examination, she has deposed that she went
to the spot at around 11.30 a.m.. Around 25 to 30 people had
gathered there. The police reached there within ten to fifteen
minutes after that. She was there till around 7.00 p.m.. On that
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day, the police did not record her statement. The dead body was in
hanging condition for four to five hours.
14 PW-4 Jyoti Walmiki was the mother of the deceased. She
has deposed that on the day of the incident, she had left her house
at around 8.30 a.m. and had gone to Jaysingpur by a passenger
train. She received a phone call that her son was injured so she
returned home. She saw that the deceased was hanging by means
of a rope. The Appellant was sitting on the platform outside the
house in a frightened condition. PW-2 and Hanmant were sitting
next to him. When she asked the Appellant about the incident, he
did not speak. When Jyoti asked PW-2, she told the same story
which she has told before the Court. After that Jyoti went to the
police station. She was in a shock and, therefore, was sent to
hospital. She was admitted in the hospital and there the police
recorded her statement, which was treated as FIR. It is produced
on record at Exhibit-16. After discharge from the hospital, she
returned home and then the body of the deceased was removed.
The Appellant was her cousin. Her statement was also recorded
under Section 164 of Cr.P.C..
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In the cross-examination, she was asked about her
discord with her husband. Hanmant was her son who was younger
than PW-2. She could not explain as to why in her police statement
it was not mentioned that the Appellant was found sitting in a
frightened state on the platform in front of her house. When she
reached her house after hearing the news of her son's injury, the
police were already present there. She was there for about half an
hour before going to the hospital; and that, at that time the police
did not make any enquiry with her. She denied the suggestion that
one 'Raja mama' was on visiting terms to her house. She denied all
the suggestions about Raja Mama.
The FIR mentions that it was registered at 4.36 p.m. In
her FIR she has mentioned that the Appellant was sitting in the
house. The omission is only in respect of his being in frightened
state but his presence in the house was mentioned in the FIR.
15 PW-7 API Pravinkumar Kamble had conducted the
investigation. The police were informed about the incident at 12.35
p.m. on 15.7.2018. P.S.O. sent police staff at the spot. PW-4 Jyoti
came to the police station. She was not feeling well. She was
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admitted to civil hospital, Miraj and there this witness had recorded
her FIR. After that, he went to the spot, conducted inquest
panchnama and spot panchnama. Photographs were taken. Near
the spot one plate, one knife and three pieces of rope were found.
There were two plates with half finished food. He requested for
postmortem examination. Crime Detection Branch arrested the
Appellant and produced him before this witness. He then arrested
the Appellant under arrest panchnama at Exhibit-42. His clothes
were seized. On the next day i.e. on 16.7.2018, he recorded the
statements of the witnesses. He sent request letters to the
Headmaster of the Kannada Secondary School at Miraj for
providing an interpreter. He also sent another letter to B.D.O.,
Panchayat Samiti, Miraj requiring presence of Child Welfare Officer
for recording the statement of PW-2. Both these letters are
produced on record at Exhibits-45 and 46. He then recorded the
statement of PW-2 on 18.7.2018 in the presence of her mother and
a Child Welfare Officer with the help of an interpreter. He also
recorded the statement of the interpreter and that officer. He sent
articles to Forensic Science Laboratory and after completion of
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investigation filed the charge-sheet.
16 The defence of the Appellant was of total denial, but,
suggestion was given to PW-4 that one 'Raja mama' was harassing
her. The deceased was opposing Raja, who used to beat him.
Therefore, the deceased was under depression and hanged himself.
This suggestion was denied.
17 The analysis of the evidence shows that the prosecution
case revolves around the evidence of the child witness. Learned
counsel for the Appellant relied on the settled principles of law in
respect of appreciation of evidence of a child witness. He invited
our attention to the observations of the Hon'ble Supreme Court in
the judgment dated 19.2.2008 in the case of Nivrutti Pandurang
Kokate and others Vs. State of Maharashtra passed in Appeal (Crl.)
No.345/2008. Paragraphs-8 and 9 referred to the principles in that
behalf. Those paragraphs are as under :
"8. The age of the witness during examination was taken to be
about 12 years. The Indian Evidence Act, 1872 (in short "the
Evidence Act") does not prescribe any particular age as a
determinative factor to treat a witness to be a competent one.
On the contrary, Section 118 of the Evidence Act envisages
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that all persons shall be competent to testify, unless the court
considers that they are prevented from understanding the
questions put to them or from giving rational answers to
these questions, because of tender years, extreme old age,
disease whether of mind, or any other cause of the same
kind. A child of tender age can be allowed to testify if he has
intellectual capacity to understand questions and give
rational answers thereto. This position was concisely stated
by Brewer, J. in Wheeler v. United States 159 US 523. The
evidence of a child witness is not required to be rejected per
se, but the court as a rule of prudence considers such
evidence with close scrutiny and only on being convinced
about the quality thereof and reliability can record
conviction, based thereon. [See Suryanarayana v. State of
Karnataka (2000 (9) SCC 129]
9. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5
SCC 341, it was held as follows: (SCC p. 343, para 5):
"A child witness if found competent to depose to
the facts and reliable one such evidence could be
the basis of conviction. In other words even in the
absence of oath the evidence of a child witness can
be considered under Section 118 of the Evidence
Act provided that such witness is able to
understand the questions and able to give rational
answers thereof. The evidence of a child witness
and credibility thereof would depend upon the
circumstances of each case. The only precaution
which the court should bear in mind while
assessing the evidence of a child witness is that the
witness must be a reliable one and his/her
demeanour must be like any other competent
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witness and there is no likelihood of being
tutored."
The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge
who notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of
an oath. The decision of the trial court may, however, be
disturbed by the higher court if from what is preserved in the
records, it is clear that his conclusion was erroneous. This
precaution is necessary because child witnesses are
amenable to tutoring and often live in a world of make-
believe. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and
liable to be influenced easily, shaken and moulded, but it is
also an accepted norm that if after careful scrutiny of their
evidence the court comes to the conclusion that there is an
impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness."
18 These principles are followed in many judgments and,
therefore, we are also testing the evidence of the child witness
based on these principles. The trial Judge has believed the child
witness. He had recorded her statement. In paragraph-36 of the
impugned judgment, learned trial Judge has specifically recorded
that he saw no reason to doubt truthfulness and veracity of the
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child. The evidence of the child witness inspires confidence.
19 We have also perused her deposition carefully and we
find that she has given answers to all the questions with clarity and
after understanding the questions. She was very empathetic in
stating that she had narrated what she had experienced and the
police had not tutored her to say anything before the Court.
Though, she told that her mother had told her what to say before
the police, she denied the suggestion that her mother told her what
to depose before the Court or that the police had tutored her. She
has been consistent in narrating her story not only before the Court
and before the police, but, also to the neighbours PW-3 and in
particular to PW-5. Her immediate disclosure and the narration of
the facts to these witnesses lends sufficient corroboration to the
truthfulness of this witness. The incident was dated 15.7.2018 and
her evidence was recorded on 4.4.2019. There is not much gap
between the incident and recording of her evidence before the
Court. Her narration is also supported by the spot and inquest
panchnamas. Though she was not an eye witness to the incident
but she has given sufficient details to show involvement of the
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Appellant. She has given reason for the Appellant's annoyance
which led to commission of murder. When she returned, the
Appellant slapped her. He threatened her and had told her that she
would also be hanged if she disclosed the incident to anybody. This
witness was asked to go out of the house on some pretext. She was
asked to buy bidi and chocolate and when she was not in the
house, this offence is committed. Her younger brother Hanmant
was too young to notice or understand anything. She herself was
around five years of age and the entire incident was a great shock
to her, but yet, she kept her courage and went to the neighbours to
tell them about the incident. Both these neighbours PW-3 Geeta
Mulla and PW-5 Tara Desai have corroborated her version to that
extent which is also an important aspect in this case.
20 The Appellant's conduct is also important. He was found
at the spot by PW-3 Geeta, who had immediately rushed there. The
Appellant himself had not called any neighbour. If he had not
committed the offence, it would have been natural conduct on his
part, to raise hue and cry and call people on seeing the deceased in
that state. He was merely standing there taking no steps.
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21 Learned counsel for the Appellant argued that he was a
neighbour and, therefore, his presence at the spot was not
unnatural. That may be true, but, his subsequent conduct was
definitely unnatural. He has neither informed anybody about the
incident nor has taken any steps to pull down the deceased to see
whether he was alive nor has he explained anything when PW-4
enquired with him. He did not even deny his involvement when
PW-2 told about the incident to everybody else. We find this
conduct very unnatural and no explanation is offered by the
Appellant. In his statement under Section 313 of Cr.P.C. he has
merely denied his involvement. Suggestions were given to PW-4
Jyoti that the deceased had hanged himself. That theory is, of
course, ruled out on the basis of the evidence of the Medical Officer
and also on the basis of the spot panchnama as there was nothing
to suggest that the deceased could stand on something to commit
suicide.
22 Learned counsel for the Appellant submitted that the FIR
was not lodged immediately. He relied on the judgment of the
Hon'ble Supreme Court in the case of Thulia Kali Vs. The State of
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Tamil Nadu as reported in (1972) 3 SCC 393, wherein it was held that
delay in lodging the FIR quite often results in embellishment which
is a creature of afterthought. On account of delay the report not
only gets bereft of the advantage of spontaneity, danger creeps in of
the introduction of coloured version, exaggerated account of
concocted story as a result of deliberation and consultation.
23 In the present case, we do not find that there is any delay
in lodging the FIR. In any case it is explained that when the mother
returned she was in a shock and she was admitted to hospital and
there her FIR was registered. We do not find any fault with the
police in not recording the FIR earlier because PW-4 had returned
home soon enough and the police could record her FIR after she
had enquired with her daughter PW-2 who was the best witness in
this case.
24 Learned counsel for the Appellant then submitted that the
statements of other witnesses were not recorded on the same day
and the statement of the child witness was recorded on 18.7.2018.
Learned counsel relied on the judgment of the Hon'ble Supreme
Court in the case of Ganesh Bhavan Patel and another Vs. State of
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Maharashtra as reported in (1978) 4 SCC 371. He relied on the
proposition that delay in recording the statement affects the
prosecution case. It was observed in that judgment that delay of a
few hours, simpliciter in recording the statements of eye witnesses
may not, be itself, amount to a serious infirmity in the prosecution
case. But it may assume such a character if there are concomitant
circumstances to suggest that the investigator was deliberately
marking time with a view to decide about the shape to be given to
the case and the eye-witnesses to be introduced. Normally, in a case
where the commission of the crime is alleged to have been seen by
witnesses who are easily available, a prudent investigator would
give to the examination of such witnesses precedence over the
evidence of other witnesses.
25 In the present case, there was no eye witness. The
prosecution story was immediately reflected in the FIR itself and,
therefore, this was not a case where the investigator was
deliberately marking time to decide about the shape to be given to
the case and the eye-witnesses to be introduced. The decision in
Ganesh Patel's case, therefore, will not help the submissions of
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learned counsel for the Appellant.
26 As far as the delay in recording of the statement of PW-2
is concerned, the investigating officer has sufficiently explained that
he had requested the services of an interpreter and a Child Welfare
Officer when her statement was recorded. This, in fact, was a step
in right direction. Therefore, we do not find any fault with the
investigating officer in that behalf.
27 Thus, it can be seen that PW-2's evidence is quite reliable.
It is supported by the evidence of the neighbours. The Appellant
was found at the spot. His conduct was unnatural. After
commission of murder, the Appellant had threatened PW-2. The
conduct of the Appellant before and after the incident is clearly
stated by PW-2. Even after arrival of neighbours and others at the
spot, the Appellant did not explain the incident. He did not explain
the facts which were within his exclusive knowledge. There are
strong circumstances against him. There is corroboration to the
evidence of PW-2 in the form of the evidence of PW-3 Geeta and
PW-5 Tara. Her evidence is also corroborated by the spot
panchnama. Two plates of half finished food were found at the
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spot. She has deposed that the boy was hanged when he was
having his food. There was semi digested food particles found in
his stomach.
28 All these circumstances are sufficiently proved by the
prosecution. They form a complete chain against the Appellant
ruling out possibility of anyone else committing that offence. The
offence is extremely heinous to say the least. The deceased was a
nine year old boy. The child witness PW-2 has shown courage in
disclosing the incident to others and in deposing about the incident
before the Court. Learned trial Judge has properly appreciated the
evidence on record. There is no reason to interfere with the
impugned judgment and order. The Appeal is dismissed. In view of
disposal of the main Appeal, nothing survives in Interim
Application No.589/2021 and same also stands disposed of.
(SARANG V. KOTWAL, J.) (S.S. SHINDE, J.)
Deshmane (PS)
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Digitally signed by
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Date: 2022.04.29 11:31:48
+0530
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