Bombay High Court
Subhash Dhondiba Pandit vs State Of Maharashtra on 24 July, 1996
Equivalent citations: 1997BOMCR(CRI)~, 1996CRILJ4194
Author: Vishnu Sahai
Bench: S.S. Parkar, Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant aggrieved by the judgment and order dated 11th August 1982 passed by the Additional Sessions Judge, Pune in Sessions Case No. 81 of 1982 convicting and sentencing him to undergo seven years' RI and to pay a fine of Rs. 1000/- in default to undergo six months' RI under S. 304, Part II, IPC has come up in appeal before us.
2. Briefly stated the prosecution story runs as follows :-
The appellant and the deceased Laxman Kadam are neighbours. PW 1 Pandurang Laxman Kadam is the son of the deceased and PW 2 Kailas is the grandson of the deceased. Two days prior to the incident there was a quarrel between the wives of the appellant and Pandurang Kadam PW 1. The cause of the quarrel was, Thummi the daughter of the appellant had carried some cow dung from the court-yard of Pandurang Kadam. It is said that on account of this quarrel the appellant came the same night and told Pandurang's father Laxman Kadam that he would see him. On the date of the incident i.e. 6th May 1981 Pandurang Kadam returned to his house at about 5-45 p.m. Thereafter he went to fetch water from the common water tap. The time was about 6 p.m. At that time his father Laxman Kadam was standing near the earthen pot in his court-yard and Kailas was standing near Laxman Kadam. While Pandurang Kadam was going to fetch water, he heard the cries of his father 'Melo Melo' and consequently looked back. He saw that the appellant was armed with a knife and was assaulting his father Laxman with the same. He emphatically stated that the appellant gave a knife blow on the head of Laxman. Thereafter he stated that the appellant inflicted a blow with a rod on the head of Laxman. At that time Mahadeo Dhondiba Divekar and Kisan Rangoba Shelar also came there. Seeing the said persons coming, the appellant ran away.
It is also alleged that PW 3 Ranjana Kadam, wife of Pandurang Kadam and PW 4 Sadashiv Divekar after the incident saw the appellant standing near his own house with a knife and rod in his hand.
On account of the assault made on him by the appellant, Laxman Kadam sustained serious injuries on his head. As a consequence of the assault he had fallen down and also vomitted. His handkerchief had become stained with blood.
3. After the appellant had run away Pandurang Kadam and others put Laxman Kadam, who was still alive, in a bullock cart and took him to Primary Health Centre at Varvand. There Dr. Mahadeo Naphade PW 6 medically examined Laxman Kadam the same day at 7 p.m. On the person of Laxman Kadam Dr. Naphade found one superficial oozing wound on left middle part of the scalp anterio posterior 2 1/2" in area. In his opinion it was the result of hard and blunt object.
4. From Varvand Pandurang Kadam went to Yavat Police Station. The said police station is said to be situated at a distance of about 10 miles from Matanagar village where the incident had taken place.
At 11-15 p.m. the same day (6-5-1981) Pandurang Kadam lodged the FIR at Police Station, Yavat. The said FIR was reduced in writing by PW. 10 PSI Madan Patil (as then he was).
5. The investigation of the case was conducted by PSI Patil. On 7-5-1981 at 1 a.m. he visited Varvand Primary Health Centre. He found Laxman to be unconscious. The same day at 7 a.m. he visited the place of the incident and collected earth mixed with blood under a panchanama. He recorded the statements of Pandurang's wife Ranjana PW. 3, Sadashiv Divekar PW. 4, Kailas PW 2 and others. The same day Dr. Naphade informed him about the death of Laxman Kadam. He then again visited the Primary Health Centre and performed the inquest (Exh. 24). On 7-5-1981 he arrested the appellant.
The appellant during the course of his interrogation confessed to him that he could get the weapons of assault viz. the rod and knife recovered. Consequently, under a panchanama in the presence of public panchas the said weapons were recovered. We may straightway mention that for very plausible reasons which have been mentioned in para 27 of the judgment, the learned trial Judge has recorded a finding that there was no recovery of weapon at the instance of the accused and also that inasmuch as no blood was found on the rod and the knife the said recovery cannot be said to constitute incriminating evidence.
6. Going back wards the post-mortem examination of the dead of Laxman Kadam was conducted on 7-5-1981 between 5-05 p.m. to 6-05. p.m. by PW. 7 Prabhakar N. Dharmapurikar. The doctor found a solitary injury viz. a contused lacerated wound on left parietal region - anterio posterior 1 1/2" x 1/4 x bone deep wound hyperaemic surrounding swelling. In the opinion of the doctor the said injury was caused by a hard blunt object. On internal examination he did not find any fracture beneath the skull.
In the opinion of Dr. Dharmapurikar this injury was caused by the rod (handle) shown to him. He categorically stated that it was not caused by a knife.
In the opinion of Dr. Dharmapurikar the deceased died on account of shock due to compression of brain due to subdural haematoma injury.
7. The case was committed to the Court of Sessions in the usual manner. In the trial court the appellant was charged for an offence under S. 302, IPC. He pleaded not guilty to the said charge and claimed to be tried.
In the trial Court the prosecution examined as many as 11 witnesses. Two out of them viz. Pandurang Kadam PW 1 and Kailas Kadam PW 2 were examined as eye-witnesses. PW. 3 Ranjana Kadam and PW 4 Sadashiv Divekar gave evidence which is admissible under S. 6 of the Evidence Act in terms that immediately after the incident they saw Laxman Kadam lying on the ground and the appellant standing at his house with a knife and rod in his hand.
In defence no witness was examined.
The learned trial Judge believed the evidence adduced by the prosecution and passed the impugned judgment. Hence this appeal.
8. We have heard Mr. B. P. Apte for the appellant and Mr. M. I. P. Galeria, Additional Public Prosecutor for the State of Maharashtra. We have also gone through the evidence of the prosecution witnesses, the material exhibits tendered and proved by the prosecution; the statement of the appellant under S. 313, Cr.P.C. and the impugned judgment. After giving our anxious consideration to the matter we find there is substance in this appeal and it deserves to be allowed.
9. The main point in this appeal is whether the evidence of the two eye-witnesses viz. Pandurang Kadam PW 1 and Kailas PW 2 inspires confidence or not ? Our answer to the said question is in the negative. We would first like to consider the evidence of informant Pandurang Kadam. He has categorically stated that at about 6-15 p.m. on 6-5-1981, that is in broad day light, the appellant assaulted Laxman Kadam first with a knife and thereafter with a rod. However, the medical evidence clearly belies this. P.W. 6 Dr. Naphade, who examined Laxman Kadam in his life time and PW 7 Dr. Prabhakar Dharmapurikar who performed the autopsy on the dead body of the deceased categorically stated in their examination-in-chief that the solitary injury sustained by the deceased was attributable to a hard and blunt object. We are inclined to accept this evidence because we find that the autopsy report shows that the deceased had sustained a contused lacerated wound. It is common knowledge that a contused lacerated wound would be caused by a blunt weapon like rod and not by a knife. In addition we find that Dr. Dharmapurikar in his examination-in-chief itself has categorically stated that the said injury could not be caused by knife. Dr. Naphade has also stated that the solitary injury found on the person of Laxman Kadam was attributable to a hard blunt object and could be caused by a rod. This obviously means that Pandurang Kadam cannot be believed when he says that the appellant assaulted the deceased with a knife on his head. The absence of knife injuries on the person of the deceased probabilises the correctness of the contention of the learned counsel for the appellant that had Pandurang seen the incident, there would have been knife injuries on the dead body of the deceased. In our view absence of knife injuries on the person of the deceased falsifies 50 % of the account of Pandurang regarding the manner of assault on the deceased. Keeping this in mind and also the fact that being the son of the deceased he is a highly interested witness, in our view, it would not be safe to accept his evidence.
Now we take up the statement of PW 2 Kailas kadam. We also feel that it would be unsafe to accept his evidence for two reasons. Firstly, at the time of the incident he was a child witness; being aged about 8 years only. The learned trial judge before recording the statement of this witness has made an observation that he is not possessed of any understanding. Apart from the fact that Kailas is a child witness, it becomes difficult to accept his testimony because he also, like Pandurang, has stated that after the deceased was assaulted with a knife by the appellant, he (Kailas entered inside the house and told Ranjana PW 3 that the deceased had been assaulted. We may mention that he does not depose about the assault on the deceased with a rod. His statement that the deceased was assaulted with a knife is falsified by the fact that there is no knife injury on the dead body of the deceased.
We may point out that for very plausible reasons which are mentioned in para 17 of the judgment the trial Judge has not relied upon Kailas's evidence.
10. Mr. M. I. P. Galeria vehemently contended that the evidence of Ranjana Kadam PW 3 and Sadashiv Divekar PW 4 which is admissible under S. 6 of the Indian Evidence Act, coupled with that of Pandurang Kadam, fixes the involvement of the appellant in the instant crime. We regret that we cannot accede to his contention. We have gone through the statements of both Ranjana Kadam and Sadashiv Divekar and find that their statements which are to the effect that immediately after the incident the appellant was standing at his house with a knife and rod in his hand to be extremely improbable. Such a conduct on the part of the appellant, in our view, can only be compatible with his anxiety to be recognised by witnesses and to create evidence against himself. This is not the normal human conduct and we certainly are not prepared to accept it.
In this connection we may mention that the learned trial Judge himself has not chosen to place reliance on the evidence of Sadashiv Divekar PW 4 for very plausible reasons which are contained in paragraph 24 of the impugned judgment.
11. We have already mentioned earlier that apart from ocular account and the evidence under S. 6 of the Evidence Act, referred to in the preceding paragraph, there was evidence of recovery of knife and rod on the pointing out of the appellant but for very cogent reasons which are contained in para 27 of the impugned judgment, the learned trial judge has chosen not to place reliance.
12. The short and long of the matter is that there remains the testimony of the solitary eye-witness Pandurang Kadam, son of the deceased; the testimony of Kailas Kadam, the grandson of the deceased having been rejected by the learned trial Judge for very satisfactory reasons contained in para 17 of the impugned judgment. We would do well to remember that fifty percent of the account given by Pandurang Kadam in terms that the appellant as assaulted the deceased with a knife is false. What is the guarantee that the residual portion is true.
It is true that the Court can convict on the testimony of a solitary witness but the same is only permissible if he is a truthful witness. We are fortified in our view by the observations contained in paragraph 4 of the judgment of the Apex Court reported in 1995 (4) Crimes 516, Kartik Malhar v. State of Bihar, which read thus : "On a conspectus of these decisions it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar's case (supra) and therefore conviction can be recorded on the basis of the statement of single eye-witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time is convinced that he is a truthful witness."
In our view Pandurang Kadam cannot be said to be a truthful witness.
13. In such a situation we are constrained to observe that in our judgment the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt and we are left with no other option but to acquit him.
14. In the result this appeal is allowed. The impugned judgment is set aside. The appellant is acquitted of the offence under S. 304 Part II, IPC. He is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged. In case he has paid the fine, the same shall be refunded to him.
Before parting with this judgment, we would be failing in our fairness if we do not put on record our appreciation for the assistance we have received by the learned counsel for the parties in the disposal of this appeal.
Certified copy is expedited.
15. Appeal allowed.