Cancerous To The Justice Delivery System If Hostile Witnesses Believe They Are Beyond The Rule Of Law: Bombay HC

                                 In a recent, righteous and remarkable judgment titled Saraswati vs The State of Maharashtra in Criminal Appeal No. 40 of 2015 that was reserved on 4 January, 2021 and delivered finally on 19 January, 2021, the Aurangabad Bench of the Bombay High Court minced no words to hold unequivocally that the courts cannot “turn a blind eye to the menace of hostile witnesses,” while directing the trial court to take action against five witnesses whose evidence resulted in the acquittal of a 75-year-old woman. A Division Bench of Justice Ravindra Ghuge and Justice BU Debadwar waxed eloquent to hold that even though respect for the law cannot be guaranteed by the threat of legal action, it has become necessary to send a “loud and clear” message to society that hostile witnesses shall not be pardoned. Very rightly so!

                                    To start with, the ball is set rolling in para 1 of this judgment authored by Justice Ravindra V Ghuge for himself and Justice BU Debadwar wherein it is put forth that, “By this appeal, the appellant/original accused, prays for quashing and setting aside the judgment and order of conviction delivered by the learned Additional Sessions Judge, Ambajogai, District Beed dated 11.09.2014 in Sessions Case No.1/2014. By virtue of the said judgment, the appellant (Saraswati w/o Ganpat Landge) has been convicted for the offence of murdering her husband (Ganpat Landge), punishable under Section 302 of the Indian Penal Code. She has been sentenced to suffer imprisonment for life and pay a fine of Rs.1000/- or suffer rigorous imprisonment for two months.”

                                To put things in perspective, the Bench then observes in para 3 that, “The prosecution has been successful in proving the charge leveled upon the accused on the basis of the following factors:-

(a)   The deceased Ganpat Shankar Landge and his wife Saraswati, the appellant herein, were residing in Gaval Galli, Ravivar Peth, Ambajogai. They had five daughters and one son. All the daughters are married. An agricultural land admeasuring about 3 to 4 acres was in the name and in the possession of the deceased. Because of his constant quarrels with the appellant, he was intending to donate it to any religious trust/ Devasthan or a person, who would maintain him during his old age. This was said to be a primary reason for the quarrels between the couple.

(b)  On 10.10.2013, early in the morning the deceased Ganpat Landge was found dead in his house. It was obviously an unnatural death. The appellant had herself traveled to the Police Station and made a statement that she had murdered her husband. On hearing this, the concerned Police Officer informed the Station House Officer Mr.Tribhuvan on telephone. He has taken such entry in the Station Diary. On receiving the telephonic message, Mr.Tribhuvan, who was on night duty at the Yogeshwari Temple, Ambajogai, proceeded to the place of incident along with some constables. He found the dead body of Ganpat with injuries on his head, face, all over the body and even his genitals. He found pieces of bangles, a wound plank, a blanket, an old bucket, a faint sky colour blouse and sky colour saree, at the spot. All these articles were stained with blood. Mr.Pradip Tribhuvan seized all those articles, collected simple earth and blood stained earth. He prepared the spot panchanama Exhibit-28, an inquest panchanama Exhibit-14 and referred the dead body for postmortem.

(c) Mr.Tribhuvan recorded the statements of Tukaram Ganpat Landge (PW-2), who is the son of the deceased. Tukaram narrated that there used to be frequent quarrels between his parents. On one occasion, his father had fractured the limb of his mother and in a subsequent fight, the appellant had fractured the limb of the deceased.

(d) He narrated that at about 09:00 PM on 09.10.2013, a quarrel erupted between his parents on account of the agricultural land while they were taking meals. Though he requested them to stop quarreling, both were uncontrollable. Being fed up, Tukaram left his home and slept at the Bus Stand at Ambajogai. After about half an hour, he started feeling cold and he traveled to the house of his married sister Satyasheela Atmaram Vaidya, who was also residing at Ambajogai. He stayed with her in her residence that night.

(e) At about 06:40 AM on 10.10.2013, his sister woke him up and said that the Police had informed her that “Bai” (their mother) had killed “Anna” (their father). Both of them reached their house and saw a wooden plank in broken condition, their father lying dead on the ground with multiple injuries, there was blood splattered on the ground. Injuries were noticeable on his head, ear, upper and lower limbs and his genitals. By that time, the appellant/ their mother had reached the Police Station.

(f) After recording of evidence and voluntary statement made by the appellant while being in police custody, the stone and the plank used to strike at the deceased Ganpat, were seized under the panchanama.

(g) After a complete trial, the Trial Court concluded that the appellant was guilty of murdering the deceased punishable under Section 302 of the Indian Penal Code. The appellant was, therefore, convicted and sentenced for the said offence.”

                                            As it turned out, the Bench then puts forth in para 4 that, “The contention of the learned advocate for the appellant can be summarized as under :-

(a) Not a single prosecution witness has supported the case of the prosecution.

(b) PW-1 Sanjay Rangnath Landge, inquest panch, turned hostile.

(c) PW-2 Tukaram Ganpat Landge, the informant and son of the deceased, has also turned hostile.

(d) PW-3 Shrikrishna Panditrao Madke, was also declared hostile.

(e) PW-4 Dr.Ravikumar Murlidhar Kamble, working as House Officer at the Department of Forensic Medicine at SRT Medical College, Ambajogai had conducted the postmortem along with Dr.Rajesh Kachare. He has mentioned in his postmortem various types of injuries, which are as follows :-

“(1) lacerated wound on right forehead, near mid line, vertical, irregular, 6 cm x 2 cm lower pole 1 cm above the middle end of right eye brow and upper pole is near the frontal hairline, margins irregular, reddish, evidence of bleeding seen.

(2) Lacerated wound 2 cm below the right eye on maxilla, horizontal, 4 cm x 1.5 cm, margins irregular, evidence of bleeding seen.

(3) Lacerated wound just behind the outer margin of right eye, 3 cm x 2 cm vertical in direction, bony deep, reddish, evidence of bleeding seen.

(4) Cruciate lacerated wound on right parieto occipital region, 7 cm from occipital protruberance 8 cm x 3 cm bony deep, margins irregular, reddish, evidence of bleeding seen.

(5) Lacerated wound of right ear, horizontal, completely dividing external ear into two pieces, size 3 cm long irregular margins.

(6) Evidence of abraded contusion over right dorsum of hand, 3 cm x 2 cm reddish in colour, swelling present.

(7) Evidence of abraded contusion on left dorsum of hand, just near the base of left thumb, 2 cm x 1 cm, reddish.

(8) Abrasions multiple, irregular, small seen on left knee joint, varying in size and shape, reddish in colour.

(9) Abraded contusion present over right medical aspect of ankle joint, diffused reddish in colour, 4 cm x 3 cm. All the injuries are recent and ante mortem in nature possible by impact of hard and blunt object.”

(f) The evidence with regard to the external injuries revealed a tear of scrotal sac, right side near the mid line exposing right testicle and spermatic cord, with bleeding and an evidence of scratches on dorsal aspect. Contusion of both testis at spermatic cord was noticed. Evidence of haemorrhage was seen. On dissecting the penis, the shaft showed haemorrhage beneath the external injuries. On palpation, evidence of fracture of the nasal bone and fracture of right maxilla depress.

(g) After conducting the internal examination, following injuries were found :-

“(1) Evidence of haematoma under scalp, right temporal region, diffused involving temporalis muscle. (2) Evidence of haematoma under scalp, below injury No.1, dark red in colour.

(3) Evidence of haematoma in left temporalis muscle, dark red in colour.

(4) Evidence of liner hairline fracture 4 cm long beneath injury No.4 on parietal bone, right side.

(5) Fracture of right supraorbital bone, just near the pituitary fossa. Meninges and brain are congested and oedematous. Evidence of patechial haemorrhage and necrosis at places over right parieto temporal region of brain with evidence of subarachanoid haemorrhage. There were fracture to ribs Nos.4, 5 and 6 of right side, near costochondral junction with extra vasation of blood.”

(h) Satyasheela has not been examined by the prosecution.

(i) It is completely unclear as to who actually killed the deceased.

(j) There was no evidence to establish that Satyasheela had visited the house of the deceased in the morning on 10.10.2013 and that the accused informed her about the death of her father.

(k) The appellant informed the Police that she had committed the murder of her husband. However, such confession before the Police Officer is inadmissible in law.

(l) The SHO to whom such confession was allegedly made by the appellant, was not examined before the Trial Court.

(m) The FIR is completely untrue and it runs contrary to the deposition of PW-1.

(n) The contents of the FIR are contrary to the deposition of PW-1.

(o) The alleged motive behind such killing was 03 acres of land owned by the deceased Ganpat and he used to frequently threaten that he would donate the land to a trust, but would not allow the accused to keep the land.

(p) The deceased had allegedly made the arrangements for donating the land to a trust.

(q) The panch witness PW-5 Shriram Narsu Shevale had denied that the seizure of clothes under Section 27 of the Indian Evidence Act was not done in his presence.

(r) PW-6, a panch witness to the voluntary statement of the appellant, turned hostile by stating that the said statement was written by the police and he had only signed it. He denied that he had accompanied the appellant for conducting the search at her residence under Section 27 of the Indian Evidence Act. PW-6 had signed the panchanamas exhibits 31 and 32 without the police reading out it’s contents to the said witness.

(s) PW-7 is the Investigating Officer, who has falsely stated that the appellant made a voluntary statement.

(t) Reliance is placed on the judgment of the learned Division Bench of this Court at the Principal Seat dated 24.07.2014 delivered in Criminal Appeal No.682/2012 filed by Rekha Sitaram Chavan vs. State of Maharashtra, to support the contention that when the appellant was sleeping in an adjacent bedroom along with her son PW-2, it is impossible that the appellant could have killed the deceased without the son waking up.

(u) Five out of seven witnesses have turned hostile and vital witnesses for the prosecution have not supported it’s case.

(v) When PW-2, son of the deceased, was residing with the appellant by sleeping in her room and the deceased was sleeping alone in the adjacent room, Section 106 of the Indian Evidence Act would not be applicable.

(w) The theory of the prosecution that the appellant, after brutally attacking the deceased and causing him grievous injuries with the use of a stone, wooden plank, stick and by crushing his genitals, had electrocuted the deceased, is not proved as there is no evidence of an electric shock having been given to the deceased.

(x) A 65 year old village lady could not have lifted an 8 kilogram stone to assault the deceased.

(y) The stone was not found at the scene as per the spot panchanama.

(z) Discovery of the stone on the next date is completely falsified as the panch has not supported the case of the prosecution and no such stone was found at the spot when the spot panchanama was conducted.

(za) When PW-2 Tukaram opened the room as a part of Section 27 discovery, the procedure of sealing the room was not followed. This means that a stone and a wire were found planted in another room to which there was an access from the room in which the deceased was found killed.

(zb) PW-2 had denied that the complaint Exhibit-16 was recorded by the I.O. Mr.Tribhuvan, before the Court and no statement made to the police could be admissible in evidence.

(zc) Hence, the conclusions of the Trial Court are unsustainable.

                                     Be it noted, the Bench then observes in para 20 that, “Considering the deposition of witnesses, it is obvious that doubt has been created as to whether, PW-2 had gone to sleep for the night with his sister Satyasheela and that it was only the deceased and the appellant, who were alone in the room in which the crime was committed. Section 106 of the Indian Evidence Act is, therefore, not applicable to this case. Five out of seven witnesses have turned hostile and have not made any statement which could have been accepted as being a corroboration to the evidence brought on record by the prosecution, in the light of the judgments in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312, Rameshbhai Mohanbhai Koli and others vs. State of Gujrat, 2011 AIR SCW 378 and Veer Singh and others vs. State of Uttar Pradesh, (2014) 2 SCC 455. Even a little portion of the testimony favouring the prosecution and being corroborated by other pieces of evidence, found in the testimonies of these hostile witnesses, could be used as substantive evidence. The Honourable Supreme Court has crystallized the law in a catena of judgments that even a part of the testimony of a hostile witness supporting the case of the prosecution.”

                                 Of course, the Bench then rightly underscores in para 25 that, “It is now a crystallized position of law that if the case of the prosecution appears to be improbable or a doubt has been created on the basis of the evidence available or if two views are possible, the view in favour of the accused has to be accepted and the benefit of doubt has to be given to the accused. Keeping in view that the prosecution has conducted the trial in a casual and halfhearted manner, five out of seven witnesses have turned hostile and as material witnesses have not been examined, that we are constrained to grant the benefit of doubt to the appellant/ accused and order her acquittal.”

                                  Simply put, the Bench then holds in para 26 that, “In the result, this Criminal Appeal is allowed. The impugned judgment and order dated 11.09.2014 in Sessions Case No.1/2014 is quashed and set aside. The appellant/ accused (Saraswati Ganpat Landge), who is about 75 years of age today, is hereby acquitted from the charge of committing an offence punishable under Section 302 of the Indian Penal Code. The amount of fine of Rs.1000/-, if deposited by the appellant/ accused, shall stand refunded to her. The muddemal property be destroyed after the appeal period is over. The record and proceedings be returned back to the Sessions Court.”

                      Quite remarkably and far most significantly what forms the cornerstone of this noteworthy judgment is then stated in para 27 that, “Before parting, as has been observed by us in a judgment delivered in the State of Maharashtra vs. Krishna Sitaram Pawar, Criminal Confirmation Case No.2/2020 decided on 22.12.2020 and keeping in view the law laid down in Ramji Duda Makwana vs. The State of Maharashtra, 1994 Cri.L.J. 1987 (Bombay High Court) and State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 8 SCC 450, we find it appropriate to hold that we cannot turn a blind eye to the menace of hostile witnesses and we cannot find ourselves helpless as against the conduct of the hostile witnesses. Less said the better, insofar as the learned prosecutor is concerned, who has taken no efforts in conducting the trial efficiently. We are finding practically in every case before us that day by day, the list of hostile witnesses is getting enlarged and the witnesses are getting emboldened in turning hostile for the reasons which can be speculated and perceived. The reasons for turning hostile could include threats, coercion and pressure tactics. However, it is a matter of a great concern if the witnesses turn hostile for extraneous considerations and such hostile witnesses begin to believe that they are far beyond the reach of the arms of law. This would not only be a serious ailment/ disease to the justice dispensation system, but could as well be cancerous to the rule of law and the justice delivery system. Though the respect for law cannot be ensured by the threat of legal action, the time has come to initiate action against hostile witnesses in all such cases so as to send out a message loud and clear to the society at large that the witnesses becoming hostile cannot be ignored or pardoned.”

                             Now coming to the concluding paras. It is stated in para 28 that, “As such, we direct the Trial Court to initiate the action under Section 340 of the Code of Criminal Procedure against all hostile witnesses in this case.” Finally, it is then held in para 29 that, “A copy of this judgment be forwarded to the learned Principal District & Sessions Judges in the State of Maharashtra for being circulated to all Additional District & Sessions Judges and Judicial Officers so as to apprise them as regards the action to be initiated against the hostile witnesses in appropriate cases.”

                                     To sum it up, the two Judge Division Bench of Aurangabad Bench of Bombay High Court comprising of Justice Ravindra Ghuge and Justice BU Debadwar have left no opportunity to make it amply clear that the menace of hostile witnesses has to be dealt with firmly. It also made it crystal clear that strict action must be initiated against the hostile witnesses in appropriate cases at the earliest. No doubt, para 27 sums up the crux of this latest, learned, laudable and landmark judgment which has already been discussed above in detail. It goes without saying that all possible steps must be taken to comply with what is stated in para 27 to ensure that witnesses do not turn hostile at the drop of a hat as most unfortunately we keep seeing time and again. It is a no-brainer that it is our criminal justice delivery system and the victim which will stand to gain the most in the whole process and so this certainly must be done on a war footing!

Sanjeev Sirohi

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