Bombay High Court
Haribhau Haridas Ranjit Ambadas Kokare vs The State Of Maharashtra on 24 February, 2020
Author: M.G. Sewlikar
Bench: T.V. Nalawade, M.G. Sewlikar
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 505 OF 2013
Haribhau @ Haridas @ Ranjit
Ambadas Kokare, Age 27 years,
Occ. Nil, r/o Pachunda
Tq. Newasa, Dist. Ahmednagar Appellant.
Versus
The State of Maharashtra Respondent
Shri Nikhil Ghanwat, Advocate for the appellant.
Shri S.B. Narwade, APP for the State.
CORAM : T.V. Nalawade&
M.G. Sewlikar, JJ.
DATE : 24th February, 2020.
ORDER :(PER M.G. SEWLIKAR, J.)
1. This appeal is preferred by the appellant - original accused No. 1 against his conviction recorded by the learned Additional Sessions Judge, Shrirampur, Dist. Ahmednagar in S.T. No. 38/2012 dated 28.11.2013 under Section 302 of the Indian Penal Code and is sentenced to imprisonment for life and fne of Rs. 1,500/- in default, to suffer rigorous imprisonment for one year. By the same judgment, accused No. 1 has been acquitted of ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 2 the offence punishable under Section 504, 506 read with Section 34 of the Indian Penal Code.
2. Facts giving rise to this appeal can be briefy stated as under :-
Accused No. 1 is the son of accused No. 2 Ambadas Kokare. Accused No. 3 is the mother of accused No. 1 and accused No. 4 is the brother of accused No. 1.
The deceased Ladika was the daughter of PW 3 Dattu Honde and PW 6 Rambha. She was married to accused No 1 about two years before the incident.
3. It is the case of the prosecution that after marriage, the deceased Ladika went for cohabitation to Shirdi. Accused No. 2 and accused No. 1 were working at Shirdi. Accused No. 1 used to accuse her of infdelity and on that count, used to assault her under the infuence of liquor. He used to accuse the deceased ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 3 Ladika of having illicit relations with her brother-in-law Anil (Accused No. 4.) Whenever Ladika came to her maternal home, she narrated these incidents and the consequent illtreatment to her parents. The deceased Ladika had come to her maternal place lastly at the time of Diwali festival.
4. It is further alleged that on 10.12.2011, accused No. 1 Haribhau had come to take back Ladika for cohabitataion. However, PW 3 Dattu did not send her as it was Saturday and agreed to send her on Sunday i.e. 11.12.2011. At that time, PW 2 Bhiwaji Waghmode was present as he was called by PW 3 Dattu. Similarly, Narayan and Ganghdhar were also called by PW 3 - informant Dattu for convincing the accused No. 1 to maintain Ladika properly. All of them tried to persuade accused No. 1 to maintain the deceased properly. At 1.00 pm, the deceased Ladika , PW 5 Kavita ( the younger sister of Ladika) and accused no 1 Haribhau, left for Shirdi i.e. the matrimonial home of the deceased Ladika on motor cycle of accused No. 1 Haribhau. Initially, they went to village Tamtala , where they had a cup of tea in the house of relatives of accused No. 1 Haribhau. Again all of them i.e. ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 4 accused No. 1, his wife Ladika and PW 5 Kavia started coming back to Pachonda, i.e. the maternal place of the deceased Ladika, on motorcycle. When they reached near canal No. 1, accused No. 1 stopped the motorcycle. Accused No. 1 Haribhau stabbed Ladika on her abdomen, chest and leg with knife. Kavita PW 5 then went home at 12.30 - 1.00 a.m. She disclosed to her parents that accused No. 1 stabbed Ladika two to three times near the canal. Therefore, PW 3 Dattu along with his two nephews went to the canal where they found Ladika lying motionless. Then he called up Bhivaji (PW 2) and Police Patil Umaji (PW 9). They both arrived at the spot. They were unable to take any decision due to the darkness. In the morning, information was given by PW9 to the police station about the incident. On the arrival of the police, dead body of the deceased Ladika was shifted to Newasa Rural Hospital for post mortem in ambulance.
5. PW 3 Dattu lodged First Information Report (Exhibit
35) narrating all the above incidents on 12.12.2011. ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 5
6. Investigation was taken up. Accused No. 1 was arrested. He gave the memorandum that he had concealed the knife in the house taken on rent by him at Shirdi. The memorandum was recorded and thereafter as led by him, all of them went to Shirdi in the house taken on rent by accused No. 1. Accused No. 1 produced the knife from the said house. PW 9 is the witness on the memorandum and recovery panchanama. Spot panchanama and inquest panchanama were drawn, accused Nos. 2 to 4 were arrested and on completion of investigation, charge- sheet came to be submitted before the learned Judicial Magistrate (First Class), Shrirampur who committed the same to the Court of Session, Shrirampur.
7. Charge (Exhibit 10) was framed, read over and explained to the accused. They pleaded not guilty to it and claimed to be tried. Their defence is of total denial and false implication.
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8. Prosecution examined in all 11 witnesses in support of its case during the trial. The learned trial Court, after appreciation of the entire evidence, came to the conclusion that on 11.10.2011, accused No. 1 had come to take Ladika back. She was sent on 11.10.2011 with PW 5 Kavita - her sister. The learned trial Court held that recovery of knife is proved. The deceased was in the custody of accused No. 1 and soon thereafter the deceased was found murdered. The learned trial Court held that the evidence of PW 5 Kavita is cogent and reliable. Thereafter, the learned trial Court recorded conviction as stated above. This order is impugned in this appeal.
9. Heard Shri Ghanwat, learned counsel for the appellant and Shri Narwade, learned APP for the State.
10. Learned counsel Shri Ghanwat argued that the learned trial Court committed gross error in relying on the evidence of PW 5 Kavita who is a minor. He further argued that the spot of the incident is surrounded by a locality of 100 persons. ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 7 When there were so many injuries on the person of the deceased Ladika, she would have screamed loudly. He argued that it is unfathomable that no one around the spot heard her screams. He further submitted that none of the persons adjacent to the spot of the incident had been examined by the prosecution for the reasons best known to it. He further submitted that the evidence of PW 2 Bhiwaji Waghmode is full of contradictions and therefore, the same cannot be believed. He argued that this witness has admitted that he did not state before the police that he was called for mediation by PW 2 Dattu. He further argued that police arrived at the spot of incident and PW 3 informant Dattu, PW 5 Kavita and PW 6 Rambhabai were there. Police enquired with PW 3 as to whether he had any suspicion against anyone. That time, PW 3 did not say anything. He argued that if accused No. 1 had been the perpetrator of the crime, in all probability, the parents of the deceased would have named accused No. 1 to be the offender on the arrival of the police. However, that did not happen. This clearly shows that the First Information Report is an after thought. He further argued that for that purpose only, the First Information Report was delayed. Learned counsel Shri Ghawat further pointed out that PW 3 had called Narayan and Gangadhar ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 8 but none of them was examined. He further pointed out that the learned trial Court has accepted that there was no motive for the accused No. 1 to commit murder of the deceased. Still the learned trial Court recorded conviction against accused No. 1, which is illegal. He further pointed out that PW 9 was the Police Patil and he was taken as panch on the memorandum. Both the panchas i.e. PW 9 and the another panch are the relatives of PW 3 - informant. He further admitted that Post Mortem report shows that the injuries were caused by a knife having sharpness on both the edges. But the knife which was recovered is blunt on one side. Therefore, the injuries noticed by PW 4 Medical Offcer Dr. Gade on the person of the deceased cannot be caused by the knife alleged to be recovered from accused No. 1. He further argued that all the interested witnesses have been examined by the prosecution and therefore, their evidence cannot be relied upon for recording conviction against the accused. He placed reliance on the following cases :-
i) State of Andhra Pradesh Vs. Arun Kumar Gupta AIR 2003 Supreme Court 801
ii) Digambar Vaishnav and another Vs. State of Chhattisgarh AIR 2019 Supreme Court 1367 ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 9
iii) Kochu Vs. State of Kerala AIR 1998 Supreme Court 2858.
11. Learned APP supported the judgment of the learned trial Court.
12. It is the case of the prosecution that at the time of the incident, the deceased Ladika was staying with her parents. The accused No. 1 had come to take her back and accordingly, she was sent on 11.10.2011. For this purpose, the prosecution has examined PW 2 Bhiwaji, PW 3 Dattu and PW 6 Rambha. 13 It has come in the evidence of PW 3 Dattu, the father of the deceased, that accused No. 1 used to assault the deceased Ladika under the infuence of liquor alleging that the deceased had illicit relations with accused No. 4. He has further stated that the deceased Ladika had come to his house at the time of Diwali festival. On 10.10.2011, accused No. 1 Hari had come to take her back with him. Since it was Saturday, he requested accused No. 1 ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 10 to take Ladika on Sunday, 11.10.2011. At that time, PW 2 Bhiwaji, Narayan and Ganghdhar were there. All of them convinced accused No. 1 to maintain the deceased Ladika properly.
13. PW 2 has corroborated the testimony of PW 3 Dattu - the informant. It has come in the evidence of PW 2 Bhiwaji that the maternal brother of Ladika and accused No. 1 Hari met him in his feld and requested him to convince PW 3 Dattu to send the deceased Ladika for cohabitation. Thereafter, all the three i.e. PW 2 Bhiwaji, accused No. 1 and the maternal brother of Ladika went to the house of the informant PW 3. He requested PW 3, to send Ladika for cohabitation. The parents of the deceased said that they would send her on Sunday. On Sunday, Ladika was sent by her parents with accused No. 1 along with PW 5 Kavita - the sister of the deceased Ladika.
14. This witness was subjected to lengthy cross examination, but nothing of substance could be extracted from him so as to render his testimony untrustworthy. Therefore, ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 11 implicit reliance can be placed on the testimony of this witness. Minor contradictions have been brought on record i.e. he did not state in the statement before the police under Section 161 of the Code of Criminal Procedure that he was irrigating sugarcane crop and that he was asked to mediate for cohabitation of Ladika. These are the minor contradictions which do not go to the root of the matter. What is of substance is whether this witness had attended the meeting in which it was decided that the deceased Ladika would be sent on the next day. From the testimony of this witness it is evident that he was present in the meeting in which it was decided that the deceased would be sent on Sunday. Because of such a minor contradiction creditworthiness of the witness cannot be impeached.
15. PW 6 Rambha, the mother of the deceased, has stated in her evidence that a meeting was called as accused No. 1 Hari had come to fetch Ladika. After the said meeting, Ladika with her sister Kavita, had gone with accused No. 1 Hari on Sunday at 1.00 pm on motorcycle. They had gone to village Tatmala to the house of relatives of accused No. 1 Hari where they took a cup of tea. ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 12 When the relatives requested the accused No. 1 to stay, he refused and started coming back to the village. Near canal No. 1, accused No. 1 assaulted Ladika by means of a knife. This witness has also been cross-examined at length but nothing could be extracted from the testimony of this witness so as to render her testimony unbelievable.
16. Thus, from the statements of these witnesses it is manifest that accused No. 1 had come to take the deceased Ladika for cohabitation. The deceased left for Shirdi along with accused No. 1 and PW 5 Kavita.
17. The story of prosecution uptil now indicates that PW 5 Kavita was with accused No. 1 and the deceased Ladika right from the time they left the village of the informant (PW 3) till the death of the deceased. Therefore, the evidence of PW 5 Kavita is of utmost importance. She is the star witness of the prosecution. At the time of her evidence, she was 8 years old. Her evidence was recorded on 17.07.2013 and the incident took place on 12.10.2011 ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 13 at about 12.30 am to 1.00 am which means, at the time of the incident, she was six years of age. She has stated in her evidence that on Sunday she along with deceased Ladika and accused No. 1 went to another town on motorcycle in the afternoon. They reached one village where they had a cup of tea. Again they were brought back to their village by accused No. 1 whom she calls as 'Daji'. It has further come in her evidence that when they reached near a canal, Daji (accused No. 1) stopped the motorcycle and told her and deceased Ladika to get down. The deceased was made to sleep on the ground. Accused No. 1 took out a knife and stabbed on the chest and leg of her sister Ladika. Accused No. 1 then fed on motorcycle. Ladika was lying there. Then she went to home, woke up her parents and divulged the incident to them . She told her parents that Daji (accused No. 1) had killed Ladika near the canal. This witness has been subjected to lengthy cross- examination which runs in fve pages. She has stood to all the tests in the cross-examination. Her testimony remained unimpeached.
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18. It was tried to argue that she made improvement in her story. She admitted in cross-examination that she did not mention in her statement before the police that Ladika was made to sleep on the ground, that Daji took out knife, that Daji assaulted on the hand, leg and chest of Ladika and that Daji ran away. This submission cannot be sustained. In the statement before the police under Section 161 of the Code of Criminal Procedure, PW 5 Kavita had stated that accused had stabbed the deceased by means of knife. This clearly shows that PW 5 Kavita has stated that knife was used for stabbing the deceased. This cannot be said to be an improvement as it does not coroed the core of the prosecution case. PW 5 Kavita has simply elaborated the statement under Section 161 of the Code of Criminal Procedure by stating that the accused had stabbed the deceased on hand, leg and chest. The fabric of the prosecution case is that the accused had stabbed the deceased by knife. In the case of State of Madhya Pradesh Vs. Dal Singh and others in Criminal Appeal No. 2303/2009, the Hon'ble Supreme Court has held as under :-
7, So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e. errors of memory due ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 15 to lapse of time, or errors owing to mental disposition, such as feeling shock or horror that existed at the time of occurrence. The court must form its opinion about the credibility of a witness, and record a fnding with respect to whether his disposition inspires confdence. Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of a statement made by the witness at an earlier stage. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. The omissions which amount to contradictions in material particulars, i.e. which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited.
19. Cross-examination of PW 5 reveals that though she was of a tender age, she possesses wisdom far beyond her age. In the cross-examination, she stated that her mother's mother never resided with them. Her grand-parents are residing adjacent to her house. She further stated that she woke up at 6.00 am on Monday and all of them had gone to the place of the incident near the canal. She has further stated that her father, Nana, did not disclose anything to the police at that time. She has further stated ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 16 that her father Nana took her to the police station on 13.12.2011 in the morning and she was there till noon. Two persons from her village were also present with her. Then she went to Newasa police station by auto rickshaw. She further stated that she calls the motorcycle as 'Gadi'. After the incident, she did not raise any shout as she was crying. Her father's house is on the canal and not in the village. She denied that if somebody shouts from the spot of incident, a person in the house of her father can hear. She denied the suggestion that her father told her to appear as witness in the Court. This shows that this witness was subjected to lengthy cross-examination but her testimony remained unshattered. Therefore, the evidence of this witness appears to be confdence inspiring.
20. PW 3, soon after learning from PW 5 that the deceased was killed by accused No. 1, proceeded to the spot of the incident along with his wife. In the meanwhile, he called up PW 2 Bhiwaji. Both of them arrived on the spot. They told him that because of night hours nothing could be done. In the morning police arrived there. Evidence of PW 6 is to the same effect. Thus, when they ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 17 went to the spot of incident, what they noticed was that the deceased was lying there and she did not respond to their calls. It is evident that by then Ladika was dead.
20. Thus, the evidence discussed above clearly indicates that the accused No. 1 had come to take the deceased with him for cohabitation and she was sent on 12.10.2011 along with PW 5 Kavita. Accused No. 1 brought them back to the village and near canal No. 1, he inficted knife blows on the deceased.
21. Post Mortem report is proved by PW 4 Dr. Gade. The deceased had as many as 20 injuries. Dr. Gade has stated that on his examination he noticed six stab wounds on the upper abdomen with following dimensions :-
i) 4 cm x 2 cm ii) 2 cm x 2 cm iii) 3 cm x 1 cm ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 18 iv) 2 cm x 1 cm v) 3 cm x 2 cm vi) 3 cm x 2 cm He had also noticed following injuries :- (I) Stab wounds i) Stab wound on left fank measuring 2 cm x 2 cm ii) Stab wound on upper part of left forearm measuring 3 cm x 2 cm iii) Stab wound on lower part of left forearm measuring 3 cm x 2 cm iv) Stab wound on left cateral side of breast measuring 3 cm x 2 cm v) Stab wound on right arm of the size 3 cm x 2 cm vi) Stab wound on right forearm measuring 6 cm x 4 cm vii) Stab wound on right forearm measuring 4 cm x 4 cm ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 19 viii) Stab wound on right elbow measuring 2 cm x 2 cm ix) Stab wound on right hip measuring 2 cm x 2 cm x) Stab wound on right thigh measuring 2 cm x 1 cm xi) Stab wound on right leg measuring 2 cm x 1 cm xii) Stab wound on right back measuring 2 cm x 1 cm xiii) Stab wound on right side of back measuring 2 cm x 1 cm xiv) Stab wound on right buttock measuring 3 cm x 1 cm III) CLW 3cm x 2 cm x 2cm in size on right index fnger. IV) Fracture of middle part of right humerus present.
He stated that all the above injuries were ante mortem. The condition of right lung was perforated wound present on middle lower lobe. Stomach was perforated, left lobe of liver was perforated, spleen was perforated, right kidney was perforated and small intestine was perforated. According to him, the cause of death was cardiac respiratory arrest due to hypovolumic shock due ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 20 to severe haemorrhage due to multiorgan injuries. This witness has further stated that these injuries are possible by steel knife of 7 to 7 ½ inches if repeated blows are given. Accordingly, he prepared Post Mortem notes (Exhibit 39).
22. Thus, the evidence of this witness clearly shows that the deceased had as many as 20 injuries and six of them were on abdomen. Thus, the evidence as stated by PW 5 Kavita is corroborated by the medical evidence. The medical evidence and evidence of PW 5 clearly shows that the death of the deceased was homicidal. This witness has stated in the cross-examination that six injuries on abdomen are possible by weapon having sharp edges on both the sides.
23. Next comes the evidence of PW 9 Umaji Honde who acted as panch on memorandum statement of accused no. 1 and recovery of knife. He has stated that accused No. 1 had made voluntary statement that he had concealed the knife at his rented house in Shirdi. Accordingly, his statement (Exhibit 46) was ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 21 recorded. As led by him, he, another panch and the Investigation Offcer went to Shirdi in Government vehicle. Accused No. 1 had taken the house on rent. Accused No.1 opened the lock of the door of the said house. He took out the knife and clothes by opening the cupboard.
24. In the cross-examination this witness has stated that he had orally informed the police that a dead body of a female was lying near the canal and an unknown person has committed murder and at that time, complainant Dattu and villagers were present.
25. It is pertinent to note that when PW 5 Kavita told her parents about the incident, all of them went to the spot of incident and at that time, there was darkness. According to PW 3 he had intimated PW 9 Umaji on phone that the deceased was murdered. Therefore, there was no reason for him to say that it was the dead body of an unknown person. When the statement was made, naturally, PW 3 being the father of the deceased, must be in grief. ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 22 Therefore, this admission is of no signifcance. It is not the case of the defence that the dead body found at the canal was not of the deceased Ladika but was of some other lady. Therefore, the facts proved by the prosecution clearly reveal that the dead body lying at the canal was of the deceased Ladika. Panchanama of Spot (Exhibit 29) is proved by PW 9 Navnath. The spot panchanama reveals that blood stains were found at the spot of the incident.
26. Learned counsel for the appellant argued that PW 9 stated that the accused No. 1 opened the lock of the door of the said room and he took out the knife and clothes by opening the cupboard. According to learned counsel Shri Ghanwat, this evidence is contrary to the evidence of PW 11 - Investigation Offcer. PW 11 has stated that accused No. 1 took the key from his neighbor and opened the lock. Accused No. 1 after entering the room produced the clothes and knife. He argued that the evidence of both these witnesses is inconsistent with each other and therefore, cannot be believed. This submission has no merit. Nothing has been brought on record to show that the house from which the clothes and knife were produced was not taken on rent ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 23 by accused No. 1. Therefore, this inconsistency is too miniscule to attach any importance. It is true that PW 3 had made a phone call to this witness soon after he learnt about the incident from PW 5 Kavita. This only shows that PW 3 knew this witness. Simply because PW 3 had acquaintance with this witness, cannot be a ground to discard his testimony.
27. In the case of Digambar Vs. State of Chhattisgarh (supra) the facts were that one Badridas Vaishnav had a brother Bhuwaneshwar. Bhuwaneshwar had two wives. From the frst wife, he had seven daughters and from the second wife he had fve daughters and a son. The frst wife Shribai and second wife Subhadrabai , daughters of Subhadrabai were lying dead in a room. A child of nine years of age was projected as an eye witness. In this case, it has been held that the evidence of a child witness must be evaluated carefully as the child may be infuenced by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must fnd adequate corroboration before it could be relied upon. It is more a rule of practical wisdom than law. In the present case, whether the ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 24 evidence of child witness is corroborated by evidence of other witnesses, will be discussed in the later part of this judgment.
28. In the case of State of Uttar Pradesh Vs. Arun Kumar Gupta (supra), the facts were that respondent Arun Gupta had lent a sum of Rs. 10,000/- from deceased Rakesh, which the respondent was avoiding to pay. On the day of the incident, respondent came to the shop of the witness Chandraprakash at about 2.30 pm and told the deceased that he had made arrangements for repaying the loan. Respondent Arun took the deceased to his house and murdered him. His dead body was found in the house of the accused i.e. respondent Arun. The deceased was murdered by knife but the knife was not sent to Chemical Analyser. The Hon'ble Supreme Court held that the house is situated in a crowded locality and large number of other houses and shops are in the close vicinity. No reasonable person would commit a ghastly murder like the one by taking the victim to such a house where his family was residing. The prosecution has not produced any material to show either presence or absence of the family members of the respondent at the time of the incident. ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 25 That apart, it is highly improbable that the neighbours and passersby would not have been attracted if really the deceased who suffered as many as thirty injuries was murdered in that house.
29. This authority can be distinguished on facts. In the case at hand, PW 5 herself has witnessed the incident. The dead body was lying near the canal. Therefore, this authority cannot be made applicable to the facts of the instant case.
30. Reliance was also placed on the case of Kochu Maitheen Kannu Khanna Vs. State of Kerala (supra). In this case, the deceased was assaulted by both the accused and eye witness Surendran Nair had seen this assault. The trial Court disbelieved the evidence of PW 2 Surendran as it was inconsistent with the medical evidence. It has been held that the High Court committed error in relying upon the evidence regarding discovery of knife. The panch witness of recovery of knife was a police personnel and not an independent witness. Thus, it becomes diffcult to appreciate the evidence of the Investigation Offcer. In this ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 26 authority, this was not the only ground on which the case of the prosecution was held to be doubtful. There were other circumstances also. As stated above, the evidence of the eye- witness was inconsistent with the medical evidence. The evidence of other two witnesses was also discarded by the trial Court as they were inconsistent interse. This is not the fact situation in the case at hand. The evidence on record clearly shows that the evidence of the child witness is trustworthy. Therefore, just because PW 9 happens to be the police Patil, cannot be a ground to discard his testimony altogether. It is pertinent to note that he was not holding the offce of police patil at the time of the incident. Therefore, he cannot be called as a witness of the police.
31. Now the question is whether there is corroboration to the testimony of PW 5 Kavita. It is a rule of prudence and not the rule of law that the evidence of a child witness should receive adequate corroboration as the child is likely to be swayed by what others tell him and can be easily tutored. Section 118 of the Evidence Act specifes that a person shall be competent to testify unless the Court considers that he is prevented from ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 27 understanding the questions put to him or from giving rational answers to the questions by tender age. In the case of Digambar (supra) it has been held that Section 118 of the Evidence Act governs competence of a person to testify which also includes a child witness. The evidence of a child witness and his credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before conviction can be allowed to stand. But as a prudence, the Court always fnds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. The only precaution which the Court has to bear in mind for assessing the evidence of a child witness is that the witness must be reliable one.
32. As stated earlier, child witness PW 5 is wholly reliable. She has given rational answers to the questions put by accused in the cross-examination. Despite searching cross examination, PW 5 Kavita came out unscathed. Therefore, her evidence was found reliable by the trial Court and we also do not fnd any infrmity in it. Moreover, her testimony is adequately corroborated by the ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 28 evidence of PW 4 Dr Gade, PW 2 Bhiwaji, PW 3 Dattu and PW 6 Rambha. PW2, PW3 and PW6 have stated that the deceased was sent with accused No. 1 and PW 5 Kavita was also accompanying them. In the night, PW 5 Kavita came home and told that the deceased was killed near the canal, PW 3 went there and the deceased Ladika was found lying there. Spot panchanama also reveals that blood stains were there on the spot. Spot panchanama (Exhibit 29) reveals that blood stained earth was collected. The clothes which the accused was wearing were recovered vide recovery panchanama Exhibit 47. All these articles were referred to Chemical Analyser vide letter Exhibit 61. Chemical Analyser's report Exhibit 62 shows that blood group of the deceased was 'A'. Chemical Analyser's report Exhibit 64 shows that the blood detected on the full shirt of the accused No 1 was of group 'A'. The clothes of the deceased were seized vide Seizure panchanma Exhibit 50, which is proved by PW 2 ASI (Retd) Rathod. The earth seized vide Seizure Panchanama Exhibit 29 had blood stains of group 'A'. It is not explained as to how the blood of group 'A' of the deceased was detected on the shirt of the accused No. 1. According to PW 5 Kavita, knife was unsed for inficting injuries on the deceased. Post Mortem report shows tht the ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 29 deceased had twenty stab wounds. All these circumstances lend corroboration to the testimony of PW 5 Kavita. Therefore, the testimony of PW 5 Kavita is not only found reliable but also has received adequate corroboration from the evidence placed on record by the prosecution.
33. Even if the evidence of a child witness is kept out of consideration for a moment, still there is evidence which indicates involvement of accused no.1 in the murder of the deceased Ladika. Complicity of accused No. 1 in the murder of the deceased is adequately proved by the prosecution even if the evidence of Kavita is ingnored for the time being. As stated earlier, it has been suffciently proved by the prosecution that the accused No 1 had come to take the deceased Ladika back for cohabitation. It has also been proved that accused No. 1 had taken PW 5 Kavita with him. Thereafter, the deceased was found murdered near the canal. Admittedly, the deceased was the wife of accused No. 1 and she was in his custody while leaving the house of PW 3. The deceased was not a stranger to the accused no 1, but she was his own wife. Therefore, it was obligatory for the appellant to bring on ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 30 record the circumstances in which the deceased died a homicidal death. It was for accused No. 1 to explain the circumstances which caused the murder of the deceased. In the absence of any explanation from the appellant, it has to be held that deceased was in the custody of the accused till her death and the appellant was responsible for her murder. As stated earlier, the deceased died a homicidal death. There is nothing on record to show that PW 3 or the deceased was on enimical terms with any person other than accused No. 1. It is also not suggested that the deceased was murdered by any person other than the appellant. Therefore, the only logical conclusion that can be drawn is that the deceased was murdered by the accused No. 1/the appellant
34. The learned trial Court has held that there was no motive to kill the deceased. However , motive can be easily discerned from the circumstances proved by the prosecution,. The learned trial Court has held that the prosecution has failed to prove the motive of the accused to kill the deceased. The learned trial Court observed that in the First Information Report, PW 3 did not mention that accused No. 4 was seen by him in compromising ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 31 position with his daughter Ladika in sugarcane crop and when he attempted to catch him, accused No. 4 ran away. While running away, his cell phone was fallen which he collected and found half naked four photographs of deceased Ladika and two photographs of accused No. 4. It is pertinent to note that the First Information Report is not an encyclopedia of events. In the case of P.K. Mishra and another Vs. State of Uttarakhand and another, AIR 2015 Supreme Court 3043, it has been held that the First Informtion Report is not meant to be an encyclopedia nor is it expected to contain of the details of the prosecution case. It may be suffcient if the broad facts of the prosecution case are stated in the First Information Report. It is true that these staements are not there in the First Information Report, but they are made in the supplementary staement. In the First Information Report, PW 3 has stated that the accused no. 1 was suspecting the character of the deceased Ladika. PW 11 has stated that he seized cell phone of Nokia make under seizure panchanama from PW 3. The said cell phone had half naked photographs of deceased Ladika. From this, it is evident that the statements made in the supplementary statement are in the nature of elaboration of the statement made in the First Information Report. This elaboration ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 32 does not amount to contradiction because it does not go to the root of the matter. It does not affect the core of the case of the prosecution. The core of the prosecution's case is that the accused/appellant used to doubt chastity of the deceased. In the supplementary statement and in the evidence, informant (PW 3) has stated that the deceased and accused No. 4 were found in compromising position and on seeing him, accused No. 4 ran away. He found mobile of accused no. 4 in which, the half naked photos of accused No. 4 and the deceased were saved. This cannot be a contradiction nor can it be an afterthought. This elaboration shows that the accused No 1 had suspicion on the character of the deceased. Therefore, in our opinion, the learned trial Court was not right in holding that there was no motive for accused No. 1 to kill the deceased. This elaboration does not damage the core of the case of the prosecution.
35. Thus, in view of the above, it is manifest that the accused No. 1 had a motive to kill the deceased. Evidence of child witness is found reliable and it is also corroborated by the evidence of PW 3 Dattu, PW 2 Bhiwaji, PW 6 Rambha and the ::: Uploaded on - 29/05/2020 ::: Downloaded on - 11/06/2020 18:04:10 ::: 33 medical evidence and the evidence in the nature of Chemical Analyser's certifcate. Therefore, the learned trial Court was perfectly justifed in recording conviction against the accused/appellant. Hence, appeal is devoid of any substance. Appeal is, therefore, dismissed.
(M.G. Sewlikar) ( T.V. Nalawade)
Judge Judge
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