Bombay High Court
State Of Maharashtra vs Prabhu Barku Gade on 16 November, 1994
Equivalent citations: 1995(2)BOMCR188, 1995CRILJ1432
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Sahai, J.
1. Since both these matters arise out of the same set of facts, we propose disposing them of by a common judgment.
2. Vide Judgment and Order dated 3rd May, 1994, the Vth Additional Sessions Judge, Pune in Sessions Case No. 142 of 1993, sentenced the appellant under Section 302, IPC to death for committing the murders of Smt. Mirabai Govind Gade and Baburao Dhondiba Gade. The order convicting the appellant under Section 302 of Indian Penal Code was passed by him on 30th April, 1994. It is this conviction and sentence which has been challenged in the present appeal. Clubbed along with this appeal is Confirmation Case No. 1 of 1994, which arises out of the reference made by the learned trial Judge, under Section 366 of Criminal Procedure Code, for confirmation of the death sentence of the appellant.
3. The prosecution case in brief, is that the appellant Prabhu Barku Gade is the first cousin of the informant Govind Baburao Gade, who was the husband of Smt. Mirabai Govind Gade, one of the two deceased persons in the instant case; others being Baburao Dhondiba Gade, the father of the informant and the real uncle of the appellant. Both the informant and the appellant are said to be residents of the same village, Asred Budruk. The house of the appellant is said to the situated at a very short distance from that of the informant. It is said that the informant used to reside in his farm house known as Padal in land Gat No. 183 and his father, the deceased Baburao, used to stay at night at a Padal in Gat No. 181 in the same village; the distance between the two Padals being about one to one and a half furlongs.
According to the prosecution at about 7.30 p.m. on 2nd November, 1992 the informant, his father Baburao Dhondiba Gade, Chandrakant Sabaji Gade-P.W. 5, Vithoba Gangaram Walke-P.W. 6 and some others were sitting outside the Padal situate in land Gat No. 183 (Padal of the informant) and were talking amongst themselves. At that time, the appellant came there and questioned Baburao Gade as to why he had cut grass from his field. It is said that Baburao tried to pacify the appellant and told him that he had not cut the grass from his field. However, the appellant was not satisfied and kept on abusing Baburao. He is also alleged to have caught hold of him. However, P.W. 5 Chandrakant Sabaji Gade and one Chindu, not examined, took the appellant to his house. Before leaving, the appellant is said to have threatened Baburao to the effect that he would see him that very day.
4. After the appellant had gone away, the informant, his father Baburao Gade and others had dinner and thereafter at about 9 p.m. the informant went to apprise the Sarpanch, Chairman and Police Patil about the aforesaid threat extended by the appellant to his father and to request them to pacify the appellant. However, he did not find the Police Patil but met Baban Laxman Gade, P.W. 8, the Sarpanch of the village and the Ex-Chairman Baban Ganpat Gade. They told him that next morning, they would reprimand the appellant and in case he did not listen to them, they would ensure that a complaint was filed against him at the police station. Feeling assured, the informant started going back towards his Padal. On the way fell his father's Padal (Field Gat No. 181). At about 10.30 p.m. when he reached his father's Padal, he gave a call to his father but his father did not reply. Naturally he got suspicious. When he put his hand on the body of his father, he felt some wet substance on his hand which happened to be the blood of his father. He found that his father's face was smeared with blood and that he was dead. He got unnerved and immediately returned back to the village. He heard shouts of his daughter Pramila Gade P.W. 4 and Chandrakant P.W. 5 coming from his Padal. They were shouting "Tyata Tyata". His father Baburao was called by that name. Thereafter, the informant ran to the house of P.W. 8 Baban Gade, the Sarpanch and at about 11 p.m. informed him, about the murder of his father at the thrashing floor of his field Gat No. 181. On return he found that a rope had been tied on the mouth of his father. He also heard sounds of noise coming from his Padal and on reaching there, was informed by his daughter Pramila Gade that the appellant had killed Mirabai by a tikav (pick-axe). P.W. 5 Chandrakant, cousin of the informant, and the appellant, told him that he had seen the appellant coming out from his house with a tikav in his hand and going towards his (appellant's) house.
5. After midnight, the informant proceeded for police station, Chakan which was situated at a distance of about 25 Kms. from his house and on the morning of 3rd November, 1992, at about 5.30 a.m. he alleges to have lodged his FIR. On the basis of the FIR, a case under Section 302, IPC was registered against the appellant by P.W. 9 PSI Dilip Shivajirao Mane. The original FIR of this case has been tendered by the prosecution as Exhibit-12.
P.W. 9 PSI Dilip Mane performed the inquest on the dead bodies of Baburao Gade and Mirabai Gade vide Exhibits 6 and 7 respectively. Thereafter, the case papers were handed over to P.W. 10 Station Duty Police Officer Ajit Vasantrao Patil for further investigation.
6. P.W. 10 Station Duty Police Officer Ajit Vasantrao Patil performed the spot panchanama vide Exhibit 8. From the place where Baburao was murdered he seized articles Nos. 1 to 4 namely :-
(1) One red, green, white and yellow coloured quilt (godhadi) torn old used;
(2) One triple layer nylon string 12 1/2 feet length on one side noose and at another side iron bhorakadi having blood stains old used;
(3) Earth with blood from the place of incident; and (4) Simple earth from neighbouring place of incident.
From the place from where Mirabai was murdered, he seized articles Nos. 5, 6 and 7 namely :-
One white, red, blue, green cloth torn quilt (godhadi) on it big blood stain; Earth with blood from the place of incident; and simple earth from the neighbouring place of incident.
The aforesaid articles were seized under a panchanama, in the presence of Public Panch witnesses. On 3rd November, 1992 he searched the house of the appellant and in presence of two panch witnesses recovered one blood-stained tikav, Exhibit 14.
On the aforesaid date, he also seized blood-stained frock of Pramila (P.W. 4) in the presence of panch witnesses vide panchanama Exhibit 9. The same day, he interrogated witnesses Pramila Gade, Chandrakant Gade and 18 others.
On 14th November, 1992, Ajit Patil, S.D.P.O. examined Vithoba Walke, P.W. 6 and 6 others. On the aforesaid date, at 8 p.m. the appellant surrendered at the police station and was duly arrested. His blood-stained cloths namely a white terricot shirt, a baniyan and one black full pant were seized under a panchanama Exhibit 16, in the presence of panch witnesses. On 11th November 1992, the aforesaid S.D.P.O. collected blood sample of appellant through a Medical Officer. Thereafter, the aforesaid articles were sent to the Chemical Analyst vide forwarding letter Exhibit 28. The report of the Chemical Analyst was received in due course and is Exhibit 29. After completing the investigation, on 14th December, 1992, SDPO Ajit Patil filed a charge-sheet against the appellant.
7. Going backwards, the autopsies of the dead bodies of deceased Baburao and Mirabai were conducted by P.W. 7 Dr. Subhash C. Madane on 3rd November, 1992 between 4.15 p.m. to 5.15 p.m. and 5.20 p.m. to 6.10 p.m. respectively.
On the dead body of Baburao, the Doctor found on external examination, the following injuries :-
(1) Continuous lacerated wound on the left side of the face blow left eye at the lower margin of the left orbit, Dimension was 1 inch x 1/2 inch. There was fracture of bone, injury was grievous.
(2) Abrasion on both sides of the angel of the mouth, direction posterioraly and upward, 2 inches wound incised.
(3) Semicircular abrasion on neck at level of thyroid cartilage. Size was about 2 1/2 inch. There was fracture of the left maxillary bone.
According to Dr. Madane, injury No. 1 and fracture of maxillary bone were ante-mortem and injuries Nos. 2 and 3 were post-mortem.
On internal examination, Dr. Madane, found fracture of anterior cranial fossa on left side directed antero posteriorily about 1 inch in length and Orbital plate of left orbit fractured irregularly. The internal injuries were corresponding to injury No. 1.
In the opinion of Dr. Madane, Baburao died on account of injury to the frontal lobe and occipital lobe, of the brain. In his opinion, the aforesaid injuries were sufficient in the ordinary course of nature to cause Baburao's death and while injury No. 1 was attributable to a blow by a hard and blunt object like tikav (article No. 22); injuries Nos. 2 and 3 were possible by tying a rope after death of the person concerned.
On the dead body of Mirabai, Dr. Madane found on external examination, the following injuries :-
(1) O.L.W. right side of the forehead, Irregular in shape. Transversely directed, Dimension 2 inches x 1 inch accompanied by fracture of bone of skull, half inch about the right eye blow. The said injury was ante-mortem.
On internal examination, Dr. Madane found :-
depressed fracture of bone of skull.
In the opinion of Dr. Madane, the ante mortem injury suffered by Mirabai was attributable to a forceful blow from a blunt and heavy object like a tikav (Article No. 22) and was sufficient in the ordinary course of nature to cause Mirabai's death.
8. In due course, the case was committed to the Court of Sessions where a composite charge under Section 302, IPC was framed against the appellant for the murders of Baburao and Mirabai and to the aforesaid change he pleaded not guilty and claimed to be tried.
In our opinion, the learned trial Judge was in clear error in framing a composite charge against the appellant and instead he should have framed two separate charges under Section 302, IPC one for the murder of Baburao and the other for that of Mirabai.
9. In the trial Court, in all prosecution examined 10 witnesses. Out of them one namely Pramila Gade P.W. 4 was an eye-witness. The remaining witnesses included the informant Govind Gade, P.W. 1; two Investigating Officers namely P.S.I. Dilip Mane P.W. 9 and S.D.P.O. Ahit Patil P.W. 10; Dr. Madane, P.W. 7 who performed the autopsies; the Panchas Vithal P.W. 2 and Ramesh P.W. 3 in whose presence recoveries were made; P.W. 5 Chandrakant who at about 10 p.m. on the date of the incident saw the appellant coming out from the house of the informant with a tikav in hand; P.W. 6 Vithoba who deposed that about the motive for the incident; and P.W. 8 Baban Laxman Gade to whom the informant apprised at about 9 p.m. about the quarrel which had taken place at about 7.30 p.m. on the date of incident, between the appellant and his father Baburao and thereafter, at about 11 p.m. about the murder of his father Baburao Gade. Apart from examining the aforesaid witnesses, the prosecution also tendered and proved various exhibits to substantiate its case. The defence of the appellant was that of denial and false implication. The learned trial Judge believed the evidence adduced by the prosecution and passed the impugned judgment which has given rise to the aforesaid appeal and reference.
10. We have heard Mr. Deepak Girme, learned Counsel for the appellant and Mr. R. F. Lambay, learned Additional Public Prosecutor for the State of Maharashtra, at considerable length. We have also gone through the depositions of the witnesses recorded in the trial Court, perused the material exhibits and he impugned judgment. After giving our due deliberation to the matter, we are of the opinion that this, appeal deserves to succeed only on the two counts, enumerated below :-
(a) In our opinion, there is no sufficient evidence in support of the conviction of the appellant for the murder of Baburao Gade and consequently for his murder, the appellant should be acquitted; and
(b) that although for the murder of Mirabai Gade, the prosecution has established the participation of the appellant beyond reasonable doubt but the appellant does not deserve death penalty for the same and the sentence of life imprisonment would meet the ends of justice.
We may mention straightway without any hesitation that the prosecution has proved beyond reasonable doubt through reliable, trustworthy and unimpeachable evidence, its case against the appellant for committing the murder of Smt. Mirabai Gade.
11. The evidence adduced by the prosecution against the appellant is of a three-fold nature :-
(a) Eye-witness account furnished by P.W. 4 Pramila Gade;
(b) Evidence of P.W. 5 Chandrakant who at about 10 p.m. on the date of the incident saw the appellant coming out from the house of P.W. 1 Govind (the informant), with a tikav in his hand and going towards his house; and
(c) Circumstantial evidence in the form of various recoveries and motive.
12. We first proposed dealing with the circumstantial evidence adduced by the prosecution against the appellant. That evidence comprises of :- recovery of blood-stained tikav from the house of the appellant, recovery of blood-stained clothes from the person of the appellant at the time of his arrest, the clothes being a blood-stained white terricot shirt, a baniyan and one full pant; and a blood-stained frock recovered by the Investigating Officer from Pramila Gade on 3rd November, 1992.
So far as the evidence of recovery of tikav, blood-stained clothes from the person of the appellant and blood-stained frock from Pramila are concerned, the aforesaid recoveries would not be of much avail to the prosecution for there is no evidence on record to show that from the time the aforesaid articles were recovered and till the time, they were sent to the Chemical Analyst, the gap being of more than 8 days, they were kept throughout in a sealed condition. It was obligatory on the part of the prosecution to lead link evidence to that effect. This was imperative because the possibility that the prosecution may have put human blood on the aforesaid articles during that interregnum, had to be eliminated before any reliance on the aforesaid recovery evidence could be placed. The question is not whether human blood was actually put on the recovered articles but as to whether it could have been put, observed a Division Bench of the Rajasthan High Court in the case reported in AIR 1955 Raj 82 : (1955 Cri LJ 835) (State v. Motia). The aforesaid decision was followed by a Division Bench of our own Court in the decision reported in 1994 (4) Bom Cri C 85 : (1994 Cri LJ 3602) Deoraj Deju Suvarna v. State of Maharashtra, Criminal Appeals Nos. 603, 608 and 624 of 1993 connected with Confirmation Case No. 3 of 1993 to which one of us (Sahai, J.) was a party.
The necessity of sealing has also been emphasised by their Lordships of the Apex Court in the decision reported in (1993) 4 Cur Cri R 486 Amarjit Singh v. State of Punjab.
Mr. Lambay, the learned Additional Public Prosecutor fairly conceded that there is no evidence on record to show that the aforesaid articles were kept throughout in a sealed condition i.e. right from the time of recovery till being sent to the Chemical Analyst.
For the aforesaid reasons, the evidence of recoveries has to be excluded by us in determining whether the appellant is guilty. We propose placing no reliance upon it.
13. We now propose taking up the next item of circumstantial evidence, namely motive. In our opinion, the prosecution has established beyond reasonable doubt the motive for the incident. The motive according to the prosecution, was that on the date of incident, i.e. 2nd November, 1992 at about 7.30 p.m. when the informant Govind Gade, his father Baburao, Chandrakant P.W. 5, Vithoba Gangaram Walke, P.W. 6 and some others were talking in front of the Padal of the informant, the appellant came and remonstrated with Baburao as to why he had cut grass from his field. Baburao denied having cut grass from the field of the appellant and tried of pacify the appellant who however, was not pacified and instead went away after pushing and threatening Baburao that he would see him the same day. Not only in respect of the motive, do we have the unimpeachable and reliable evidence of the informant P.W. 1 Govind, P.W. 5 Chandrakant and P.W. 6 Vithoba Gangaram Walke, but we find a strong corroboration of their evidence by the evidence of P.W. 8 Baban Laxman Gade, the Sarpanch of the village. He deposed that on 2nd November, 1992, at about 9 p.m. Govind had come to his house and had complained to him about aforesaid incident. We have gone through the statements of the aforesaid four witnesses and in our opinion, there is no such infirmity in their evidence which would render it unworthy of acceptance P.W. 6 Vithoba is a wholly independent witness, and P.W. 5 Chandrakant is the first cousin of the appellant. We are not prepared to believe that they would falsely depose against the appellant. Learned Counsel for the appellant could not point out any infirmity in their evidence which could persuade us to reject their evidence. Accordingly, we accept their evidence.
It is true that Govind being so of Baburao was an interested witness and Baban Laxman Gade having admitted in his cross-examination that Govind had worked in his election was also an interested witness. However, it is well settled that the norms of appreciation of evidence do not warrant that the testimony of interested witnesses should be mechanically rejected. They only require that the evidence of such witnesses should be scrutinised by Courts with caution. We have exercised caution while evaluating their testimony and we feel strongly convinced that their evidence in inspires implicit confidence.
We have no hesitation in holding that on the date incident at about 7.30 p.m. the incident referred to above, took place and that the present incident was a sequel of that earlier incident.
14. We now propose taking up the other evidence adduced by the prosecution against the appellant, namely :- (a) statement of Pramila G. Gade; and (b) the evidence of P.W. 5 Chandrakant S. Gade.
15. The crucial question that requires to be adjudicated upon is as to whether the evidence of P.W. 4 Pramila, a child witness (aged about 9 years) at the time of the incident and about 11 years at the time of her deposition) inspires confidence. We have perused her entire deposition, all the time keeping in mind that the testimony of a child witness, should be evaluated with the greatest caution and circumspection. It is common knowledge that there can be more dangerous witnesses than children for they live in a world of make-belief; are prone to imagine things, even if they have not seen them; on account of fear or reward they can be made to depose false facts; and can be easily tutored. As Dr. Kenny Downing, Professor of the Laws of England, Cambridge University put it, at page 386 in his book "The Outlines of Criminal law" :- Children are a most trustworthy class of witnesses, for when of a tender age as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and desire of notoriety.
Whole assessing Pramila's evidence we have also kept in mind the observations of the Apex Court contained in paragraph 9 of its decision State of Bihar v. Kapil Singh. In the aforesaid paragraph the Apex Court observed thus (at p. 282 of Cri LJ) :
"Manti is a young girl whose age was recorded as 12 years at the time when she was examined in the Court of Sessions in July 1962, so that at the time of the incident she was only 11 years of age. While such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness, that under influence she might have been coached to give out a version by persons who may influence on her."
However even after applying the aforesaid caution we are of the confirmed opinion that Pramila P.W. 4 is a truthful witness and witnessed the murder of her mother Mirabai as deposed to by her.
We also find that the learned trial Judge before recording the evidence of Pramila took the precaution of conducting her preliminary examination by putting questions to her, in order to ascertain her level of understanding. To those questions she replied thus "I worship God Shankar. My parents also worship God Shankar. I can distinguish between truth and false hood. It is my firm belief that if any false statement is made, God Shankar will not forgive". On the basis of the aforesaid replies the learned trial Judge inferred and in our opinion rightly, that Pramila was possessed of sufficient understanding and oath could be administered to her. After administering oath he recorded her statement.
16. Pramila deposed that the incident took place on the second day of a month which was a Monday. On the date of the incident at about 7.30 p.m. when she was playing in the courtyard of her house, along with her younger sister, the appellant came and started abusing her father and grandfather on the ground as to why they had cut the grass from his field. Her grand-father replied that he has not cut it. Thereafter the appellant pushed her grandfather. However, Chandrakant and Chindoba took the appellant away. The appellant, had threatened that he would see them. Then they had dinner and thereafter her father (Govind P.W. 4, the informant) went away to report the incident to the Sarpanch. Her grand-father also left for the hut in the field where he used to sleep. Her mother, younger sister and herself lay down on the bed. A lamp was burning inside the house. The appellant, while all of them were lying down, entered the house with a tikav in his hand and assaulted her monther on the head with it. She (Pramila) started crying and shouting. The appellant thereafter ran away. She stated that the frock which she was wearing got stained with the blood of her mother. Chandrakant and his wife also came, on hearing her shouts and she narrated the incident to them. Then all three of them gave calls to Govind (her father) and grandfather. Her grandfather did not respond. After some time her father and villagers came and she told her father that the appellant and assaulted her mother, with a tikav on head. Her father went to Police Station Chakan for lodging the F.I.R. The Police seized her frock (article No. 8). When the aforesaid frock and tikav were shown to her in court she identified them.
It is unfortunate that since no evidence was adduced by the prosecution to prove that the aforesaid frock was throughout kept in a sealed condition, subsequent to its seizure and till its being sent to the Chemical Analyst, prosecution is deprived of the benefit of this clinching corroborative evidence. However, in spite of this lapse by the investigating agency her evidence, in our opinion, inspires confidence and is worthy of belief. The appellant being her uncle, and living in her close proximity, was well known to her from before the incident and since a kerosene lamp was burning at the place of the incident she would have had no difficulty in identifying him. We are at our wits-end to understand as to why she would falsely implicate the appellant, who after all was her uncle.
Pramila's presence at the place of the incident, which was her own house, appears to be perfectly natural and understandable. Chandrakant P.W. 5 whose house is adjacent to hers also speaks about it. The informant Govind, (her own father) also deposes that it was she who immediately informed him about his wife's (Mirabai's) murder. The manner of assault as disposed to by her is corroborated by medical evidence. Dr. Madane, P.W. 7 who conducted the autopsy on the dead body of Mirabai disposed that the C.L.W. (contused lacerated wound) suffered by the deceased was attributable to the tikav shown to him. Finally we find that there was no opportunity to tutor her either. As seen earlier the incident took place at about 10 p.m. on 2nd November and the evidence of P.W. 10 Station Duty Police officer Ajit Vasantrao Patil is that the next day i.e. on 3rd November, he recorded her statement under section 161, Cr.P.C.
For the aforesaid reasons we place reliance on her testimony and hold that her evidence inspires implicit confidence.
17. The learned counsel for the appellant assailed Pramila's testimony one number of grounds.
18. The first criticism is that the preliminary, examination conducted by the trial Judge to ascertain the level of Pramila's understanding was done in a perfunctory manner in as much as the questions put to her in it have not been recorded and only her answers were recorded. In support of his contention learned counsel placed reliance on a Division Bench decision of the Orissa High Court reported in 1986 Cri. L.J. 1363 Ratna Munda v. State.
In the aforesaid case their Lordships of the Orissa High Court observed in paragraph 9 (at p. 1365) thus :
"It is always desirable that a trial judge should leave on record not only the evidence of a child but also the questions he had put to the child witness in the preliminary examination ....."
It is true that the questions put to her in preliminary examination have not been recorded by the learned trial judge but there is no rule of law thumb or of procedure warranting that such a omission would introduce such a infirmity in her evidence which would render it unworthy of acceptance. Even in the aforesaid decision it has been mentioned that "it is always desirable" and not that it is always imperative.
We may also mention that the answers given by Pramila to the questions put to her in preliminary examination themselves indicate as to what were the questions put to her. We have extracted those answers in paragraph No. 15 of this judgment. The real object of recording questions is that it should be clear as to what were the questions to which answers are given and the preliminary examination of Pramila shows that this object has been fulfilled.
Consequently we find the aforesaid submission to be without merit and reject it.
19. Secondly it was contended on the basis of a Division Bench decision of our court, State of Maharashtra v. Sharanappa Malappa Sakhare that the evidence of a child witness "should invariably be in the form of questions and answers. This mode of recording the evidence is not only a fairplay but gives an idea to the court, which takes down the deposition as well as the appellant court what exactly the question put was and what answer was given by the witness."
It is true that Pramila's evidence has not been recorded in question and answer form. It is also true that it would have been better had the trial court so recorded it. However, for two reasons, this omission does not render her evidence unworthy of acceptance. Firstly there is neither any immutable rule of law or of procedure which makes it mandatory for a court to record the evidence of a child witness in question and answer form and secondly from the answers given by Pramila, one can clearly make out the questions which must have been put to her. It is only where the answers given by a child witness are either dubious or ambiguous or confusing that the non-recording of the evidence of a child witness in question and answer form may result in rendering the evidence unworthy of acceptance. This is not the case here. Pramila's answers are very clear. They clearly suggest the questions in reply to which they have been given.
Even in the aforesaid decision, what has been observed is that it should invariably be in the form of question & answer and not that it should necessarily be recorded in such a manner. Hence, the aforesaid submission is rejected.
20. The appellant's counsel next submitted that the light of a small kerosene lamp, which was burning near the place where Mirabai was murdered and in which Pramila in said to have recognised the appellant was insufficient for Pramila to recognise the appellant. He contended that the fact that Mirabai was killed shows that there was either absence of light or paucity of light because there was no plausible reason for the appellant to kill her. He submitted that Mirabai was not involved in the quarrel which had taken place the same day at 7.30 p.m. between the appellant on one side and Govind and Baburao on the other. He also submitted that had there been sufficient light then, Govind would have been killed instead. We regret that we find this submission to be devoid of merit also.
In the first place, we would like to point out that in as such as the appellant was the own uncle of Pramila, she understanably was knowing him very well from before the incident, as deposed to by her, and consequently, could have recognised him in very feeble light also. Taking up the contention that had there been adequate light then Mirabai would not have been murdered and instead Govind would have been killed. We find that the evidence of P.W. 1 Govind and P.W. 4 Pramila shows that at the time when the incident took place, Govind was not available because he had gone to complain to the village Sarpanch and Police Patil about the incident which had taken place at 7.30 p.m. If at the time of the incident, Govind was not available, then there was no question of his being the target of murder. It is true that Mirabai does not figure in the 7.30 p.m. incident and consequently in the normal course of things should not have been killed but it is impossible to fathom the workings of human mind. We can only speculate as to why the appellant murdered Mirabai. One reason may be that the appellant was so infuriated that on not finding Govind inside his house, he on the spur of the moment decided to murder his wife Mirabai instead. At any rate it is well settled that motive loses significance when there is credible eye-witness account. This certainly is the case here.
21. The learned counsel for the appellant also vehemently contended that contents in the stomach of the two deceased persons dislodge the time of the incident given out by Pramila. In this connection he invited our attention to Pramila's statement that after the 7.30 p.m. incident all of them had taken dinner. He submitted that since the informant Govind too had taken dinner, with them and there is the evidence of Govind that after taking dinner at about 9 p.m. he left to inform the village Sarpanch and Police Patil, the deceases persons must have taken dinner at about 8 p.m. or 8.30 p.m. Hence, according to appellant's counsel, in the stomach of Baburao 200 ccs. of semi-digested food material and in that of Mirabai 300 ccs. of semi-digested food material would not have been present. Again, we find this contention to be devoid of merit. The evidence of P.W. 5 Chandrakant, who is said to have seen the appellant coming out with a tikav in his hand, from the house of Govind is that the time was 10 p.m. There is no evidence about the exact time of Baburao's murder. But he must have been killed some times prior to 11 p.m., because the the evidence of P.W. 8 Baban Laxman Gade, the Sarpanch, is that at about 11 p.m. Govind came and informed him that his father was dead. Thus the time gap between the two murders and time of the deceased persons taking dinner would have been about two hours and in asmuch as the process of digestion often continues after death, the contents of stomach of the deceased persons do not belie the evidence of Pramila.
Even if we assume for arguments sake that there is some merit in the contention of the appellant's counsel but on that score Pramila's evidence would not be rejected. The Apex Court has laid down in the decision State of U.P v. Sughar Singh that if there is inconsistency between occular account and medical evidence and the occular account is beyond reproach the court should overlook the conflict and accept the occular account. Since in our opinion the evidence of Pramila is beyond reproach, we accept it and ignore the conflict, if any, between the time the deceased persons took dinner and the food-contents found in their stomach.
22. Learned counsel for the appellant also assailed the testimony of Pramila on the ground that it is extremely improbable that seeking the appellant armed with a tikav, she did not run away. His submission is that it is incredible that she being a child of 9 years she mustered the courage to remain present on the place of the incident and witness the murder of her mother Mirabai being committed. This submission too is devoid of any substance. Learned counsel completely seems to have overlooked the fact that the murder of Mirabai would have hardly taken a minute. The medical evidence shows that only one blow with a tikav was inflicted on her and by the time Pramila would have thought of running away the incident must have been over and the appellant himself would have run away.
23. Learned counsel also vehemently contended that the comprehensive-eye-witness account furnished by Pramila, the coherent manner in which Pramila deposed in the trial court and the circumstances that she could not be shaken in cross-examination, shows that she was tutored. We regret that we are unable to accede to this submission primarily for two reasons :-
Firstly because there was hardly any time to tutor her. The incident took place on the night of 2-11-1992 and her statement under section 161 Cr.P.C. was recorded the next day i.e. on 3-11-92 by S.D. P. O. Patil P.W. 10 and secondly if the prosecution really wanted to tutor her it could have easily made her depose about having witnessed the murder of Baburao. After all Baburao was murdered hardly at a distance of one and half furlongs from her house. This witness at no point of time, ever stated that shell witnessed the murder of Baburao. This circumstance itself is an inbuilt guarantee of the fact that she is a truthful witness and that at no point of time she was tutored.
24. Finally learned counsel for the appellant on the basis of certain authorities, contended that as a general rule criminal courts are loathe to believe testimony of child-witnesses and consequently we should reject the evidence of Pramila. The authorities relied upon by him are :-
(1) State of Bihar v. Kapil Singh;
(2) 1986 Cr. LJ 1363 (DB) (Orissa) Ratna Munda v. State; and (3) AIR 1933 Lah 667 (DB) : (1933) 34 Cri LJ 606, Abbas Ali Shah v. Emperor.
In none of the aforesaid cases has it been laid down as a general proposition of law that the evidence of a child witnessee should never be believed. What has been held is that such evidence should be scrutinised with the greatest caution and only thereafter relied upon.
In each of the aforesaid authorities child witnesses were disbelieved for sufficient reasons :-
In because prior to the recording of her statement under section 164 Cr.PC. the child witness (Manti) was kept confined at the police station from 19th June 1961 to 28th June 1961 and also on account of the fact that on the next morning she met Bhagwat and although she told him that Daiya had been killed but she did not tell him as to who had killed her;
In 1986 Cri. LJ 1363 (Orissa) (DB) the child who was of nine years of age was disbelieved on the ground that the learned Sessions Judge observed, more than once in the deposition sheet, that the witness kept mum for long spells and gave answer with great difficulty after a lot of hesitation. The child was also disbelieved on the ground that his examination-chief was a bold and cryptic narration which did not inspire confidence, and in AIR 1933 Lah. 667 : (34 Cri LJ 606) (DB). The child witness was disbelieved because :- (a) her evidence was belied by the nature of injuries found on the dead body of the deceased; (b) there was delay in the recording of her statement under section 161 Cr.P.C.; (c) her brother Mehdi had asked her to tell the investigating officer that she identified appellant Abbas Ali Shah; and (d) she also stated that the Thanedar also told her to depose that she identified appellant Abbas Ali Shah.
In the case in hand there is no such blemish and infirmity in the evidence of Pramila which would erode her credibility, as was found in the aforesaid three cases and consequently they do not help the appellant.
25. After giving our anxious consideration to the averments contained in the statement of Pramila P.W. 4 and to the various submissions made by the learned counsel for the appellant we have no hesitation in holding that Pramila is a reliable witness. In our opinion her testimony alone is sufficient for sustaining appellant's conviction.
26. However, in the instant case we have also other evidence. We now propose taking up the statement of P.W. 5 Chandrakant who on the date of the incident at about 10 p.m. is alleged to have seen the appellant coming out from the hut of the informant and going towards his own hut with a tikav in his hand. The evidence of P.W. 1 Govind is that Chandrakant's house is absolutely adjacent to his house and thus Chandrakant was a very natural witness of the incident. Further in as much as he was the first cousin of the appellant and there was not even an iota of enmity between him and the appellant, we are not prepared to believe that he would give false evidence against the appellant. We have perused his statement and in our view it inspires confidence.
No such infirmity in his evidence could be pointed out by the learned counsel for the appellant which would render it unworthy of acceptance. In our opinion P.W. 5 Chandrakant is a very truthful witness and his evidence lends very strong corroboration and assurance to that of P.W. 4 Pramila.
27. The truthfulness of the prosecution case is also established by the circumstance that the FIR in this case was lodged very promptly. The statement of the informant Govind P.W. 1 is that on 3rd November, 1992 at about 5.30 a.m. has lodged the FIR, at Police Station Chakan, which is situate at a distance of about 25 kms. from the place of the incident. In the aforesaid FIR the appellant is nominated as the assailant of Baburao and Mirabai. It is not for us to emphasise the significance to be attached to a prompt FIR. A prompt FIR largely eliminates the chances of embellishments in the prosecution story and of false implication of accused persons. In the aforesaid FIR the appellant is the solitary accused who has been named and we are not prepared to believe that the informant would have left out the real assailant and falsely nominated him. We may mention that all the material facts have been mentioned in the FIR. This prompt FIR., in our opinion certainly strengthens and lends assurance to the prosecution case.
28. For the aforesaid reasons we find that the prosecution has adduced sufficient cogent reliable and unimpeachable evidence with respect to the murder of Mirabai and in our opinion, the learned trial Judge was correct in holding the appellant guilty for the aforesaid murder.
29. The learned counsel for the appellant also submitted that the trial Judge erred in convicting the appellant for Mirabai's murder under section 302 IPC and he should have instead convicted him under Section 304(II) IPC. His contention is that the medical evidence reveals that the appellant only inflicted a solitary blow from the blunt side of pick-axe on the forehead of Mirabai and thus he could not have intended causing her death and at the worst it can be said that he had the knowledge of her death contemplated by clause thirdly of Section 299 IPC and punishable under section 304(II) IPC. Again, we regret that this submission is devoid of merit. The prosecution case is that with a tikav (pick-axe) in his hand, the appellant gave a very forceful blow on the head of Mirabai resulting in her instantaneous death. The autopsy report of Mirabai shows that the blow was a lethal one and had resulted in fracture of bone of skull. Dr. Madane P.W. 7 who conducted the autopsy on the dead body of Mirabai stated that aforesaid ante-mortem injury was sufficient in the ordinary course of nature to cause death.
In our opinion, the act of the appellant would be squarely covered by clause thirdly of section 300 IPC and the appellant would only be guilty of the offence punishable under section 302 IPC. The aforesaid clause provides that culpable homicide would be murder if there is intention to inflict a bodily injury which is sufficient in the ordinary course of nature to cause death. For the application of clause thirdly it has to be established :-
(a) that the bodily injury (both external and internal) which was inflicted was actually intended to be inflicted. In other words there was intention to inflict that injury and that it was not accidental; and (b) that the aforesaid injury was sufficient in the ordinary course of nature to cause death.
In our opinion, in the instant case, the aforesaid elements have been established beyond any shadow of doubt. When the appellant inflicted a massive below with a pick-axe (may be from the blunt side) on the right side of forehead of Mirabai which was so forceful that it result in the fracture of her skull - bone and instantaneous death it can be safely presumed that he not only intended inflicting the aforesaid external injury but also the accompanying internal injury. It is neither borne out by evidence nor pleaded by the appellant in his statement under section 313 Cr.P.C. that the aforesaid blow was not intended by him and that it was accidental. The second element too is satisfied because Dr. Madane P.W. 7 who conducted the autopsy on the dead body of Mirabai stated that the aforesaid injury was sufficient in the ordinary course of nature to cause Mirabai's death.
The circumstance that the appellant did not assault Mirabai from the sharp-side of the axe, would certainly have relevance while deciding the question as to whether the appellant should be awarded death penalty for murdering Mirabai, but for the reasons stated above would not take out the case of the appellant from the ambit of clause thirdly of section 300 IPC.; the breach of which, is punishable under section 302 IPC.
We may mention that the view which we have taken in respect of clause thirdly of section 300 IPC is based on the decision of the Apex Court Virsa Singh v. State of Punjab).
For the reasons mentioned above we reject the aforesaid contention of Mr. Deepak Girme.
30. However, we are strongly of the opinion that the learned trial Judge was not justified in convicting and sentencing the appellant for the murder of Baburao Dhondiba Gade. In the instant case, admittedly, there is no direct evidence connecting the appellant with the aforesaid murder. The learned Additional Public Prosecutor vehemently submitted that there is clinching circumstantial evidence connecting the appellant with the aforesaid murder. Before examining as to what this evidence is, we would first like to enumerate the norms required to be satisfied by the prosecution in the cases satisfied by the prosecution in cases of circumstantial evidence. It is well settled that in cases of circumstantial evidence, the prosecution has to establish :-
(a) the various links in circumstantial evidence;
(b) that those links collectively and unerringly point towards the guilt of the accused and are only compatible with the inference of his guilt; and
(c) that those links are wholly incompatible with the inference of innocence of accused and incapable of being explained on any other hypothesis.
It is in this background that we have to examine as to whether there was sufficient circumstantial evidence justifying the conviction of the appellant for the murder of Baburao. The learned Additional Public Prosecutor vehemently submitted that at about 7.30 p.m. (couple of hours before the incident) there was a furious quarrel between the appellant and Baburao in which the former asked the latter as to why he had cut the grass in his field and during the course of it the appellant assaulted and pushed Baburao and finally went away threatening that he would see him, that very day. The learned Additional Public Prosecutor also submitted that a couple of hours after the aforesaid quarrel (about 2 1/2 hrs) the informant found while he was returning from the house of Sarpanch on reaching the Padal of his father Baburao, that he was dead. The learned Additional Public Prosecutor wants us to infer that in the background of the aforesaid quarrel the irresistible inference to be drawn is that it was the appellant who had murdered Baburao. In our opinion the aforesaid circumstantial evidence is not sufficient to warrant such an inference. At the worst it may only create a strong suspicion against the appellant but, as is well settled, suspicion however strong, can never take the place of proof. (See paragraph 9 of , Sarwan Singh v. State of Punjab).
We may mention that in Criminal Cases conviction in either recorded nor sustained on strong suspicion. It only proceeds when the prosecution proves the guilt of the accused beyond reasonable doubt.
For the aforesaid reasons, in our opinion, the learned Trial Judge was in error in convicting the appellant for the murder of Baburao and we propose to acquit him for the aforesaid murder.
31. The only question which remains to be answered is as to what punishment should be awarded to the appellant for committing the murder for Mirabai.
The learned Trial Judge in awarding the death sentence to the appellant has been strongly influenced by the circumstance that the appellant committed a double murder. This hypothesis for awarding capital punishment cannot to accepted, because as mentioned earlier, the prosecution has failed to establish beyond reasonable doubt that the appellant committed the murder of Baburao Dhondiba Gade. Consequently the appellant is only liable for committing a single murder, namely that of Mirabai Govind Gade. That murder, as is apparent from the medical evidence, was committed by the appellant by inflicting a solitary blow, and that too from the blunt side of a pick-axe. The aforesaid circumstances indicate that the murder of Mirabai was not committed in a cruel and dastardly manner. They also show that the real intention of the appellant was not to kill Mirabai. The circumstance that Mirabai was not involved in the incident which had taken place at about 7.30 p.m., the same day, also shows that the appellant could not have really intended killing her. We may mention that the prosecution has not alleged any motive for her murder. A similar mode of murder came up for consideration before the Apex Court in the decision Hazara Singh v. State of Uttar Pradesh.
In that case the deceased had been assaulted from the blunt side of the axe by the appellant Hazara Singh who had been sentenced to death. Setting aside the death sentence and substituting it by a sentence of life imprisonment, the Apex Court, in paragraph 9, observed thus :
"We, however, think that in the circumstances of the case the sentence of death should not be imposed. Hazara Singh had an axe and if it was his real intention to murder Karnail Singh he world have used the sharp edge of the axe and not used the axe like a stick. We think that the sentence of life imprisonment will be appropriate in the circumstances of the case."
The aforesaid decision would have full application to the case before us.
32. For the reasons enumerated in the preceding paragraph the instant case would not fall within the ambit of the expression "the rarest of rare cases", whereby warranting the imposition of death sentence. In our opinion the ends of justice would be squarely met if in place of sentence of death, a sentence of life imprisonment is awarded to the appellant, for committing the murder of Mirabai Govind Gade.
33. In the result, this appeal is partly allowed and partly dismissed. The appellant is acquitted of having committed the murder of Baburao Gade. Although his conviction in respect of murder of Smt. Mirabai Govind Gade is upheld but the death penalty awarded to him is set aside and instead, he is directed to undergo a sentence of imprisonment for life. Confirmation case No. 1 of 1994, which arises out of the reference made by the learned Trial Judge, under section 366 Cr.PC., for confirmation of death sentence of the appellant is rejected. The aforesaid reference is also rejected. The appellant is in jail. He shall remain there and serve out his sentence.
34. Before parting with our judgment we would like to place on record, our gratitude to the learned counsel for the parties for the able and fair manner in which they have argued this matter. In spite of the fact that it was brief under the Legal Aid Scheme, Shri Deepak Girme, the learned counsel for the appellant, has left no stone unturned and the partial modification in the impugned judgment in no small measure is due to his industry and tenacity.
Issuance of certified copy of his judgment is expedited.
35. Order accordingly.