Shankar Shrirang Gulik vs The State Of Maharashtra
2022 Latest Caselaw 9764 Bom

                                                              Appeal.955.15.doc

ATU
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 955 OF 2015

      Shankar Shrirang Gulik,
      Age : 40 years, Occu: Labour,
      R/o. Dahigaon, Taluka Malshiras,
      Dist. Solapur.
      (presently in Kolhapur Central Prison.)             .. Appellant
           Versus
      The State of Maharashtra,
      [Through Natepute Police Station,
      Taluka Malshiras, Dist. Solapur].                   .. Respondent
      Mrs. Nasreen Ayubi, Appointed Advocate for Appellant.
      Mr. H.J. Dedhia, APP for Respondent - State.

                            CORAM               : A.S. GADKARI &
                                                  MILIND N. JADHAV, JJ.
                            RESERVED ON   : 05th September 2022.
                            PRONOUNCED ON : 26th September 2022.


      JUDGMENT (PER : MILIND N. JADHAV, J.)

. This Appeal questions legality of Judgment and Order dated

30.01.2015 passed by learned Additional Sessions Judge, Malshiras,

District Solapur (for short "Trial Court") in Sessions Case No.10 of

2013 convicting Appellant (Original Accused) under Section 235(2) of

the Criminal Procedure Code, 1973 (for short "Cr.P.C.") for offence

punishable under Section 302 of the Indian Penal Code, 1860 (for

short "IPC") and sentencing him to suffer rigorous imprisonment for

life alongwith fine of Rs.10,000/- and in default thereof to suffer

rigorous imprisonment for two years.

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2. Prosecution's case is based on ocular evidence of a child

witness, aged 12 years which has been accepted by the Trial Court.

Prosecution case relates to an incident which took place on

05.07.2012 resulting in the death of one Chhaya Shinde at the hands

of Appellant.

3. Facts of the prosecution case which emerge from the record

are as under:

3.1. Deceased Chhaya and Ankush Shinde had four children.

Chhaya was residing in village Natepute, Taluka Malshiras alongwith

her two minor children, son Anil and daughter Renuka - 12 years

whereas Ankush Shinde was residing in Mumbai alongwith their two

elder children. Chhaya was working as sugarcane cutting labour.

Appellant - Shankar Shrirang Gulik resident of a nearby village,

Dahigaon in Taluka Malshiras also worked as sugarcane cutting labour

alongwith Chhaya. According to prosecution, there were illicit

relations between Chhaya and Appellant for more than one year prior

to the date of incident. Appellant persisted with Chhaya to come and

reside with him at Dahigaon, whereas Chhaya was reluctant to go with

him, hence there were frequent quarrels between the two. At times

Appellant used to stay in Chhaya's house during night.

3.2. On 04.07.2012, i.e. one day prior to the incident, Appellant

once again persisted with Chhaya in the house of PW-5 - Dattamaie

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Kachare to consider moving with him at Dahigaon. There was an

exchange of words between the two, however Appellant assured

Chhaya that henceforth he would not insist about the said issue.

Thereafter both returned back to Chhaya's house in the evening.

3.3. On 05.07.2012, Anil and Renuka were awakened due to a

quarrel between Chhaya and Appellant at about 05:30 a.m. in the

morning. Both of them saw Appellant inflicting a blow with the scythe

(sickle) on Chhaya's face. Chhaya sustained a grievous injury on her

chin and fell down in a pool of blood. Appellant threw away the

scythe in the house and ran away. Anil rushed to the police station

and informed the police. Chhaya was taken to the Rural Hospital at

Natepute, however considering the seriousness of her injury, she was

referred to Civil Hospital, Solapur. Chhaya succumbed to her injury

during treatment on 11.07.2012.

3.4. Police authorities informed Chhaya's brothers about the

incident on 05.07.2012. One of her brother, PW-2 - Baba Rane lodged

complaint against Appellant alleging attempt to murder Chhaya.

Crime was registered as C.R. No.79 of 2012 in Natepute Police Station

against Appellant, initially for offence punishable under Section 307

IPC and subsequently the provision of Section 302 IPC was added.

3.5. PW-11 - Namdeo Shinde carried out the investigation of

crime. Spot panchanama was carried out vide Exh.23 and seizure

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panchanama vide Exh.25 in the presence of PW-3 and PW-4. One

blood stained scythe (sickle), one blood stained blouse, one blood

stained plastic gunny bag and soil mixed with blood were seized from

the spot of incident. Appellant was arrested and as per memorandum

and seizure panchanama clothes of Appellant namely shirt, pant,

underwear and baniyan were seized (Article "A-1 to A-4").

Investigating Officer ("IO") obtained injury certificate of Chhaya from

Rural Hospital, Natepute where she was initially treated immediately

after incident. IO received all relevant documents from the Civil

Hospital, Solapur inter alia, postmortem report (Exh-49), advance

date certificate, and inquest panchanama (Exh.63), which were duly

proved in evidence. IO sent the seized clothes and other muddemal to

the Regional Forensic Laboratory, Pune for chemical analysis. After

completing investigation and recording of statements IO submitted

chargesheet against Appellant in the Court of Judicial Magistrate First

Class (JMFC), Malshiras. Since the offence punishable under Section

302 IPC is triable by the Court of Sessions, the learned JMFC

committed the case to the Sessions Court for trial.

3.6. Charge was framed against Appellant vide Exh.6; its

contents were read over and explained to him in vernacular; he

pleaded not guilty and claimed to be tried.

4. In order to bring home the guilt of Appellant, prosecution

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examined 15 witnesses in all. PW-2 - Baba Rane, brother of Chhaya is

the first informant. PW-1 is pancha witness who proved memorandum

and seizure panchanama vide Exh.16 pertaining to seizure of clothes

of Appellant which he was wearing at the time of incident. PW-3 is a

pancha witness for spot panchanama (Exh.23) and in his presence the

weapon (scythe) used by Appellant, blood stained blouse and plastic

gunny bag were recovered and seized from the spot. PW-4 is another

pancha witness for seizure panchanama and in his presence clothes of

deceased Chhaya were seized. PW-5 - Dattamaie Kachare is Chhaya's

friend and Godmother and has deposed that Chhaya was her Gurulek

(follower daughter). She has further deposed that there were illicit

relations between Chhaya and Appellant for more than 7 - 8 years

prior to the incident; that she had intervened and compromised

several and frequent quarrels between the two at times.

5. PW-6 - Renuka Shinde is the daughter of deceased Chhaya

and star prosecution child witness. She is eye witness to the incident

and has in detail narrated the entire incident of having seen Appellant

inflicting blow with scythe on Chhaya's face resulting in Chhaya's

death. PW-7 is a Member of Natepute Police Station Dakshata

Committee and in her presence police recorded statements of Anil and

Renuka, minor children of Chhaya. PW-9 - Dr. Hemant Dixit is a

Medical Officer who first treated Chhaya in Rural Hospital, Natepute

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at about 07:00 a.m. on 05.07.2012. In his deposition, he has given a

detailed description of the injuries noticed by him on Chhaya's body;

he has stated that he issued yadi to the police station since Chhaya

was not brought to the hospital by police. He has proved the injury

certificate issued by him vide Exh.47. PW-10 - Dr. Shrikant Shinge is

the doctor who performed postmortem on the dead body of Chhaya

and proved the postmortem (PM) Report vide Exh.49. PW-11 is IO

who carried out the investigation. PW-15 was the Police Officer on

duty in Civil Hospital, Solapur who prepared inquest panchanama of

the dead body of Chhaya vide Exh.63 and sent her body for

conducting postmortem. PW-12, 13 and 14 are Police Officers who

identified the muddemal in Court, produced clothes of deceased and

identified them from the muddemal (Exh.60) and proved the

recording of complaint by PW-2, brother of Chhaya vide Exh.19 and

16.

6. We have heard Mrs. Nasreen Ayubi, learned Advocate

appointed represent the Appellant and Mr. H.J. Dedhia, learned APP

and with their able assistance perused the entire evidence and record

of the case.

7. It is seen that Chhaya was injured on the morning on

05.07.2012 at about 05.30 a.m. and thereafter taken to Rural

Hospital, Natepute. PW-9 - Dr. Hemant Dixit examined Chhaya at

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around 07:00 a.m. in Rural Hospital and found that she had an incise

wound on her chin with fracture of mandible on the left side.

According to him the injury was grievous and dangerous to life as it

was caused by a sharp edge cutting weapon.

8. The deposition of PW-9 is fully supported and corroborated

by the evidence of PW-10 - Dr. Shrikant Shinge who conducted the

postmortem on the dead body of Chhaya and proved PM report vide

Exh.49. In his deposition, PW-10 clearly opined that cause of death of

Chhaya was due to the grievous injury sustained by her on her

chin/face. Both these Medical Officers have been examined by

prosecution and their evidence deserves to be accepted. In cross-

examination, it was attempted to suggest to them that injury caused to

Chhaya could be possible due to fall on a sharp edged tin sheet,

however both Medical Officers have flatly denied the said suggestion.

There is no material evidence on record to show that Chhaya had

accidentally sustained injury due to fall and caused by any sharp

object. Another notable feature which deserves to be considered is the

fact that none of the prosecution witnesses have denied the fact that

there was illicit relationship between Chhaya and Appellant. PW-5 the

godmother of Chhaya, has deposed that Chhaya and Appellant had

kept illicit relationship for several years. That there were frequent

quarrels between them due to Appellant insisting that Chhaya should

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reside with him at Dahigaon and Chhaya was reluctant to oblige and

PW-5 had on several occasions intervened in their quarrels and

attempted to settle them. Hence, the fact that there was illicit

relationship with Chahya and Appellant and there were intermittent

quarrels between the two cannot be denied and stands proven.

9. In the aforesaid backdrop, the deposition of PW-6 - Renuka

Shinde, 12 year old daughter of Chhaya assumes critical importance.

She is the eye witness to the incidence, according to her she and her

brother Anil were present in the house when the incident took place.

Her presence cannot be denied and is required to be admitted since

spot panchanama which is duly proved by PW-3 vide Exh.23 gives the

description of the place of incident as a single room admeasuring 15

ft. x 8 ft. Renuka has deposed that on the previous night i.e.

04.07.2012 there was quarrel between Chhaya and Appellant. They

all slept in the same room and at 05:30 a.m. in the morning she was

awakened due to quarrel between Chhaya and Appellant and saw

Appellant inflicting a blow with the scythe on Chhaya's chin. She has

further deposed that after the assault Appellant threw the scythe in the

house and ran away. By the seizure panchanama Exh.23 the weapon

(scythe) has been seized from the spot of incident. Though Renuka

has been cross-examined at length there is nothing incongruous

appearing therein so as not to believe her evidence. Several

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suggestions have been put to Renuka in cross-examination. One of the

suggestion was that at the time of incident there was darkness in

house to which she has answered that though there was no electricity,

there was a kerosene lamp in the house. Nothing in her deposition

appears to be disbelievable, her credibility does not appear to be

shaken at all. On the issue of her ability and capacity to understand

the circumstances, we are inclined to consider her age. Her age at the

time of incident was 12 years. Her evidence is reliable and believable.

Her testimony stands duly corroborated and supported by the

deposition of other prosecution witnesses. Spot panchanama and

seizure panchanama duly corroborate and support her testimony. Her

ocular evidence stands fully corroborated by the medical evidence

given by PW-9 and PW-10 as discussed and alluded to hereinabove.

According to us therefore version and deposition given by Renuka

deserves to be accepted and admitted. She had identified the weapon

used by the Appellant during assault. The seizure memorandum of

blood stained clothes of deceased through the C.A. Report have proven

the presence of human blood stains of Group 'A'. The C.A. Report also

confirms that the blood found on Chhaya's blood stained clothes at the

time of incident and the blood stains on the weapon i.e. scythe, blouse

and plastic gunny bag found at the spot of incident had blood stains of

one and the same group i.e. blood Group 'A'.

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10. From the aforesaid evidence of prosecution witnesses it is

seen that the presence of Appellant at the spot of incident cannot be

denied or ruled out. PW-6 - Renuka's evidence clearly proves that she,

Anil, Chhaya and Appellant, all four went to sleep in the house

together on the night of 04.07.2012 and the incident occurred in the

early morning hour of 05.07.2012 right in front of her eyes. Another

reason for not disbelieving Renuka's deposition is the fact that

Appellant was not unknown to her. Appellant was living in Chhaya's

house alongwith Renuka and Anil and was on visiting terms in their

house and fully acquainted with the children. Hence the identity of

Appellant by Renuka of having assaulted Chhaya with the weapon

stands proved and deserves to be accepted. Merely because Renuka is

minor and hence her deposition should not be admitted cannot be a

ground for the Appellant to argue in the present case. Her ocular

evidence proves presence of Appellant at the scene of crime and she

has seen him with having assaulted Chhaya and causing a fatal injury

to her. It is undoubtedly clear from a minute perusal of her evidence

that she has the capacity to understand the questions put to her and

has been able to give rational answers to the same. Her evidence

inspires absolute confidence about its genuineness and truthfulness

and deserves to be accepted. It is further seen that the medical

evidence given by PW-9 and PW-10 are further relevant and important

circumstances which fully support the prosecution case. So also, spot

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panchanama and seizure of articles and the C.A. Report linking the

blood group of deceased Chhaya with the blood stained weapon

recovered from the spot leaves no doubt in mind that the chain of

circumstances fully corroborate and support the ocular evidence of

PW-6. From the testimony of the prosecution witnesses the intention

of Appellant to kill Chhaya is also clearly gathered as she had

repeatedly refused to go and stay with him at Dahigaon on his

insistence. Further nature of injury suffered by Chhaya clearly

indicates about Appellant's intention to cause her death. In the face of

the testimony of the eye witness, the guilt of Appellant stands proven

beyond all reasonable doubts.

11. In the case of Alagupandi Vs. State of Tamil Nadu1; the

Supreme Court has emphasised the need to accept the testimony of a

child witness with caution after substantial corroboration before acting

upon it. The Supreme Court has held that it is a settled principle of

law that a child witness can be a competent witness provided,

statement of such witness is reliable, truthful and is corroborated by

other prosecution evidence. It is held that the Court in such

circumstances can safely rely upon the statement of the child witness

and it can form the basis of conviction as well. Though the evidence

of a child witness and credibility thereof would depend upon the

circumstances of each case, the only precaution which the Court

1 (2012) 10 SCC 451

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should bear in mind while assessing the evidence of a child witness is

that the witness must be reliable one and his/her demeanour must be

like any other competent witness and that there exists no likelihood of

being tutored. In a catena of judgments it has been held that the

evidence of child witness must find adequate corroboration before it

can be relied upon. This is more a rule of practical wisdom than law.

12. Applying the aforementioned settled legal principles to the

facts and circumstances of the present case, it is seen that ocular

evidence of PW-6 stands fully corroborated and supported by medical

evidence given by PW-9 and PW-10 and the recovery evidence as well.

13. Learned Trial Court has appropriately dealt with all the

aforementioned aspects in its Judgment and Order. There is no room

for doubt that the guilt of Appellant stands proven beyond all

reasonable doubts and it is the Appellant only who has committed the

offence of culpable homicide amounting to murder of Chhaya. No

error is committed by the Trial Court and its Judgment and Order

dated 30.01.2015 is confirmed.

14. Criminal Appeal is accordingly is dismissed.

15. Before parting with the Judgment, we would like to place on

record appreciation for efforts put in by Mrs. Nasreen Ayubi learned

appointed Advocate appointed by High Court Legal Services

Committee, Mumbai for espousing the cause of Appellant, she was

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thoroughly prepared in the matter and rendered proper and able

assistance to the Court.

       [ MILIND N. JADHAV, J. ]        [ A.S. GADKARI, J.]

           Digitally
           signed by
           RAVINDRA
RAVINDRA   MOHAN
MOHAN      AMBERKAR
AMBERKAR   Date:
           2022.09.26
           12:25:40
           +0530