Bombay High Court
Ganpat @ Kishor S/O Shalikram Bhange (In ... vs The State Of Maharashtra Through ... on 8 August, 2016
Author: B. R. Gavai
Bench: B. R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.447/2014
Ganpat @ Kishor s/o Shalikram Bhange,
aged about 32 years, r/o Hanuman Nagar,
Ward no. 4, Karanja, Dist. Wardha.
(Presently in Jail) .....APPELLANT
...V E R S U S...
The State of Maharashtra through,
PSO PS Karanja (Ghadge),
Dist. Wardha. ig ...RESPONDENT
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Mr. R. M. Daga, Advocate for appellant.
Mrs. T. R. Tiwari, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- AUGUST 8, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. The cause for approaching the appellant before this Court is his conviction by the learned Sessions Judge, Wardha on 19.06.2014 in Sessions Case No.154/2012. By the impugned judgment, the appellant is convicted for the offence punishable under Section 302 of the IPC and is directed to suffer imprisonment for life and to pay a fine of Rs.1000/- and in default of the same, to suffer rigorous imprisonment for one month. The appellant is also convicted for the offence punishable under Section 324 of the IPC and on that count, it is directed that he shall suffer rigorous ::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 ::: 2 apeal447.14.odt imprisonment for three months and fine of Rs.520/- and in default to suffer rigorous imprisonment for 15 days.
2. The prosecution case is as under:
(a) Mahadeo Chafle (PW1) filed oral report, Exh.22 on 01.08.2012. On the basis of the said oral report a crime was registered against the appellant vide Crime No.69/2012 for the offence punishable under Section 302, 323 of the IPC. The printed FIR is at Exh.-23. The gist of the oral report lodged by Mahadeo Chafle shows that on 01.08.2012, he was sitting near a Pan shop of Raju Watkar. That time, his wife Sangeeta came there and informed that the appellant is doing ruckus in front of their house. Therefore, he, along with his wife, were returning to their house and that time near the house of one Hari Menghre, the appellant assaulted on the wife of the first informant. Therefore, he along with his wife went to the Police Station for lodging the report. That time, his mother Kusum and son Ganesh were also accompanying with him. After lodging the report, when they reached their house at about 8.00 p.m., he noticed his father Manikrao in dead condition and was having injury on his head. The FIR further states that that time ::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 :::
3 apeal447.14.odt his daughter Vanita (PW3) informed him that when the deceased was sitting on the 'otta' i.e. the platform, the appellant came and assaulted on him by means of weapon, stick.
(b) The investigation of the crime was entrusted to API Janardan Salunke (PW5). He conducted the inquest on the dead body in presence of pancha witnesses. The inquest panchanama is at Exh.-54. The spot panchanama was drawn before the investigation was entrusted to API Salunke in presence of pancha witness Jaishriram Wanjari (PW2). The spot panchanama is at Exh.-25.
(c) Janardan Salunkhe (PW5) recorded statement of Vanita. He also seized the clothes of the appellant under seizure memo Exh.-72. Those clothes were having blood stains. During the police custody remand, as per the evidence of Janaradan Salunke, the appellant gave his disclosure statement in presence of Jaishriram (PW2) and agreed to show the place where he has thrown the weapon namely; the stick. The said disclosure statement is at Exh.-27 whereas the recovery panchanama of the stick which was recovered from a well owned by one Sahadeo Bhange is at Exh.-28. After completion of the other usual investigation, charge-sheet was filed.
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(d) As the case was exclusively triable by the Court of Sessions, it was committed by the learned Magistrate to the Sessions Court. The Sessions Judge framed the charge against the appellant. He denied the same and claimed for his trial. In order to bring home the guilt of the appellant, in all five witnesses were examined by the prosecution. After the trial, as observed in the opening paragraph of this judgment, the appellant was convicted.
3. We have heard Mr. Daga, the learned counsel for the appellant and Mrs. G. R. Tiwari, learned A.P.P. for the State. Both the learned counsel took us through the notes of evidence of the prosecution witness in detail and made their respective submissions in support of their prayers.
4. Dr. Akshay Dahibele (PW4) has conducted the post mortem on the dead body of Manikrao. The dead body was brought to him when he was discharging his duties as Medical Officer at Rural Hospital, Karanja Ghadge. He noticed surface wounds, abrasion over left forearm of size 10 cm x 2 cm. When he opened the dead body, he noticed lacerated wound over the scalp over parietal ::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 ::: 5 apeal447.14.odt area of size 1/2 inch x 1/2 inch and also another lacerated wound over parietal area 1/2 inch x 1/2 inch. He also noticed depressed fracture on frontal bone having size 1 inch x 1 ½ inch. The brain matter was oozing out of the fractured frontal bone. According to the autopsy surgeon, the cause of death is due to head injury present over the frontal bone and parietal bone of the skull. The post mortem report is at Exh.-37.
From the aforesaid evidence of Dr. Dahibele, we see no reason to record different finding than recorded by the learned Sessions Judge that the death was of homicidal nature.
5. The next question is whether the prosecution has proved that the appellant is the author of the injuries caused to the deceased Manikrao.
5. The first informant is not an eye witness of the assault on his father Manikrao. According to the prosecution, Vanita Chafle (PW3) is an ocular witness. She is the granddaughter of the deceased. At the time of recording her evidence her age is shown as 11 years. Thus, she is a child witness.
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6. According to Mr. Daga, learned counsel for the appellant, the evidence of Vanita is required to be discarded because; (i) she is closely related to the deceased and as such she is an interested witness and (ii) she being the child witness, reliance cannot be placed on her testimony.
7. Merely because the witness is closely related to the deceased, by itself such evidence does not earn disqualification.
However, while appreciating their evidence, the Court should be on guard and should scrutinize the evidence of such a witness with caution and care.
Every child witness cannot be discarded as untrustworthy.
The evidence of child witness cannot be rejected if it is found to be reliable. In respect of the appreciation of the evidence of a child witness, the Court has to assess the credibility and trustworthiness of the evidence. Whether a child witness could be believed or not depends upon the circumstances of each case. In that view of the matter, we are unable to find any reason in agreeing with Mr. Daga, learned counsel for the appellant that merely because Vanita is a child and interested witness, needs to be discarded.
::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 :::7 apeal447.14.odt The Court is required to scrutinize the evidence of Vanita with care. If, after scrutiny of her evidence it is noticed that her evidence is trustworthy and reliable then alone it can be made the basis for confirmation of the conviction.
8. According to the prosecution, Vanita was present on the spot at the time of the incident. Mahadeo (PW1) the first informant and father of Vanita, deposed from the witness box that after lodging the report, the police used to visit his house continuously for 4-5 days. The following admission give by Mahdeo shows that, the statement of Vanita was recorded after 7-8 days:
"हह महणणह खरह आहह कक, घटनहचयय 7 तह 8 कदवसयननतर पपकलसयननन मलय मयझयय ममलनलय पपलनस सटह शन मधयह आणणययस सयनकगतलह."
Statement of Vanita under Section 164 of the Cr.P.C. was also recorded by J.M.F.C Karanja Ghadge on 13.08.2012. Vanita (PW3) is candid enough to state from the witness box as under:
"(i) "हह महणणह खरह आहह कक मन मयझयय आईवकडलयनचयय सयनगणयय पपरर मयणह वयगतह."
(ii) हह महणणह खरह आहह कक मयझह वडनल मलय सयनगत असह कक मलय पपकलसयनय बययन दययचह आहह."
::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 :::8 apeal447.14.odt From the aforesaid, it is clear that this child witness's evidence is greatly influenced by her father and therefore, it looses its characteristic of an independent one.
9. In that behalf, even the learned Sessions Judge, in the judgment impugned has observed that though the learned Magistrate has observed while recording her statement under Section 164 of the Cr.P.C. that this witness is tutored one and stopped further recording of her statement, ought not to have followed the said procedure.
10. According to the evidence of Vanita, after the incident, she started crying and, therefore her neighbour Vandana Bhange came there and she narrated the incident to Vandana Bhange. Thus, that was a first disclosure by this child witness. Examination of Vandana Bhange would have lent credence to the testimony of Vanita.
However, for the reasons best known to the prosecution, Vandana Bhange is not examined by the prosecution.
11. Further from the following admission of Mahadeo (PW1), which is brought on record during the cross-examination, it is really difficult to accept the prosecution case that at the time of the ::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 ::: 9 apeal447.14.odt incident, Vanita was on the spot.
"हह महणणह खरह आहह कक, मयझयय घरयजवळ ओटय आहह. हह महणणह खरह आहह कक, तप ओटय मयतन आकण दगडयनह बनलहलय आहह. हह महणणह खरह आहह कक, मयझन पतनन आकण ममलगन आलप. आमहयलय मयझह वडनल जकमननवर मत म कसतथनत पडलह कदसलह."
From the aforesaid, it is clear that when Mahadeo was returning from the Police Station, he was accompanied by his daughter. It is not the prosecution case that Mahadeo is having any other daughter than Vanita. It is also admitted by Vanita that when her statement was recorded before the learned Magistrate, her father was accompanying her.
12. Therefore, though there is no legal impediment to the admissibility of the evidence of the child witness, in our view in the present case, the evidence of Vanita has failed to pass the test of trustworthiness and reliability. From the scrutiny of the prosecution case vis-a-vis the evidence of Mahadeo (PW1) and Vanita (PW3) Vanita, one cannot reach to the conclusion that she was present on the spot and from the quality of the evidence of Vanita, it is crystal clear that the possibility of tutoring her by her father Mahadeo is not completely ruled out.
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13. It is brought on record that there is a long standing enmity between the families of the first informant and the deceased. In fact, the first informant is facing criminal cases for the offence punishable under Section 326 of the IPC on the report lodged by the appellant.
In that view of the matter, false implication at the behest of the first informant is also not completely ruled out.
14. Insofar as the discovery of the weapon namely; stick is concerned, admittedly, it is recovered from a well owned by one Sahadeo Bhange which is a place not exclusively controlled by the appellant. Further, though according to the persecution, the blood stained clothes of the appellant were sent to the Chemical Analyser, no Chemical Analyser's report is filed on the record.
15. The appellant is also convicted for the offence punishable under Section 324 of the IPC for assaulting on the wife of the first informant. His wife is not examined in the present case. Her injury report is placed on record and it is at Exh.-39. It shows that Sangita, wife of the first informant was having blunt trauma over the left shoulder and blunt trauma on the left hand finger. Sangeeta was examined by Dr. Akshay Dahibele (PW4). His evidence shows that ::: Uploaded on - 10/08/2016 ::: Downloaded on - 11/08/2016 00:27:19 ::: 11 apeal447.14.odt the injury noticed and mentioned in Exh.-39, the injury report of Sangita, is possible if a person fails on his left side and comes in contact of the ground.
16. After reapprecaition of the prosecution case, we are of the view that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Hence, we pass the following order.
Criminal Appeal No.447/2014 is allowed.
The judgment of conviction and order of sentence dated 19.06.2014 passed by Sessions Judge, Wardha in Sessions Case No.154/2012 is quashed and set aside.
The appellant-Ganpat @ Kishor Shalikram Bhange is acquitted of the offence punishable under Sections 302 and 324 of the Indian Penal Code. He be set at liberty forthwith, if not required in any other crime.
The fine amount, if any paid by the appellant, be refunded to him.
(V. M. Deshpande) (B. R. Gavai)
kahale
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CERTIFICATE
I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
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