JUDGMENT
1. The appellants aggrieved by their conviction under S. 304-II read with S. 34 of the IPC and the sentence of 5 years rigorous imprisonment and a fine of Rs. 200/- each and one month in default of payment of fine have come up in appeal before this Court. The aforesaid convictions and sentences of the appellants were recorded vide order dated 26-11-1992 passed by the Additional Sessions Judge, Kolhapur in Sessions Case No. 104 of 1991.
2. The prosecution case in brief as emerging from the recitals contained in the FIR and the evidence of P.W. 5 Vimal Kamble and P.W. 7 Sanjay Kamble recorded in the trial Court, is as under :-
The informant Sanjay Kamble (P.W. 7) and the appellants are residents of the same village viz. Manwad, taluka Gadhinglaj, district Kolhapur. The informant’s father Yeshwant Kamble was addicted to drinking liquor and after consuming it used to beat his wife (informant’s mother). On 21-1-1991 (Sunday) the informant’s father and uncle appellant Anant Kamble consumed liquor the whole day. Thereafter in the evening, the informant’s father beat his daughter (informant’s sister). It is said that the informant advised appellant Anant Kamble not to offer liquor to his father and on that Anant Kamble with an axe rushed to assault the informant. The sarpanch was called and he warned the informant’s father to behave properly. However, in spite of this the next day (Monday) the informant’s father abused the informant’s mother under the influence of liquor.
In the aforesaid background, on 22-1-1991 while the informant was studying appellants Anant Kamble and his wife Shanta Kamble entered the informant’s house and started abusing his mother. They also enquired as to where the informant’s father was. At that very time the informant’s father came and gave a blow with a sickle which had a broken point, on the left hand of the informant’s mother. At the same time appellant Anant Kamble is alleged to have assaulted informant’s younger brother Vijay on the chest with a knife. In trying to save Vijay the informant sustained a minor abrasion on his right thumb. Thereafter the informant’s father and Shanta Kamble caught hold of Vijay and appellant Anant Kamble assaulted him with a knife. Thereafter the appellants and Yeshwant Kamble ran away.
3. After the incident, the informant reported the matter to the Police Patil. On coming back to his house he found that Vijay had succumbed to his injuries. On 23-1-1991 at 4-00 a.m. the FIR was lodged by the informant and on its basis Crime No. 13 of 1991 under Ss. 302, 324 and 504 of IPC read with S. 34 of IPC was registered at police station Gadhinglaj. In the aforesaid FIR the appellants and Yeshwant Kamble are named.
4. Police Sub-Inspector Mr. A. Y. Patil of police station Gadhinglaj took the investigation of the case in his hands. In presence of P.W. 3 Appanna Bhima Tupparwadi he prepared the inquest report, and took plain earth, earth mixed with blood and chilly powder into his possession. On 23-1-1991 the knife which is alleged to have been used by appellant Anant Kamble in the incident was recovered at his pointing out, from a well. Ultimately a charge-sheet in respect of an offence punishable under S. 302 of the IPC and some other sections was submitted against the appellants and accused Yeshwant Kamble.
5. Going backwards, the autopsy of the dead body of the deceased Vijay was conducted on 23-1-1991 by Dr. Vijay Kumar (P.W. 4). On the corpse the doctor found the following injuries :-
(1) Incised wound 1″ x 1/2″ x 1″ below the middle of left clavicle. This injury is present on the superior lobe of the left lung and left lung is stabbed through and through.
(2) Contused lacerated wound about 1″ x 1/4″ x skin deep, 2 1/2″ behind left mastoid process.
(3) Spindle shaped wound at L2, 1″ x 1/2″ x 1″, fracture of elbow.
(4) Incised wound above 1 1/2″ x 1/4″ x 1″ on T3 level near medial border of right scapula.
According to the doctor the death of the deceased was on account of shock due to injury to lung. In his opinion the injury to the lung of the deceased was sufficient in the ordinary course of nature to cause death.
6. In the trial Court a charge under S. 302 read with S. 34, IPC and S. 324, IPC was framed against the appellants and Yeshwant Kamble. All of them pleaded not guilty to the aforesaid charges.
7. During the trial in all prosecution examined 7 witnesses. Out of them there are 2 eye-witnesses namely; Vimal Yeshwant Kamble (P.W. 5) and Sanjay Kamble (P.W. 7). It is surprising that the Investigating Officer has not been examined in the instant case. The learned Trial Judge believed the evidence adduced by the Prosecution and passed the impugned order.
8. I have heard Mr. S. V. Marwadi holding brief for Mr. A. P. Mundargi on behalf of the appellants and Mr. N. M. Kachare, learned Additional Public Prosecutor for the State of Maharashtra, at considerable length. I have also perused the deposition of the witnesses examined in trial Court and the various exhibits tendered and proved by the Prosecution during trial. I have gone through the impugned judgment.
9. Mr. S. V. Marwadi, learned counsel for the appellants streneously urged that the statements of the two eye-witnesses do not inspire confidence and the learned Trial Judge erred in believing them. He also contended that inasmuch as P.W. 5 Vimal Kamble was the mother of the deceased and P.W. 7 Sanjay Kamble was the real brother of the deceased, these witnesses were highly enemical to the appellants and prudence required that I should not accept their testimony which is not corroborated by that of any independent witness. Mr. S. V. Marwadi also invited my attention to that portion of the statement of P.W. 5 Vimal Kamble wherein she stated that an exchange of abuses lasting about 10 to 20 minutes between the appellants and Yeshwant Kamble on one side and the informant and others on the other side preceded the assault and had the incident really taken place at the time and in the manner alleged by prosecution, then people residing in the locality must have seen it and the absence of witnesses of locality creates grave doubts on the truthfulness of the prosecution case. He further contended that the non-production of the Investigating Officer, Police Sub Inspector Mr. A. Y. Patil has caused considerable prejudice to the appellants because on that account they were deprived of opportunity of putting vital questions pertaining to the flaws and short-comings in the investigation.
10. I have given my anxious consideration to the submissions made by Mr. Marwadi and I am inclined to accept his contention that the evidence of the two eye-witnesses is not dependable vis-a-vis appellant Shanta Kamble and she should be given the benefit of doubt. A perusal of the FIR shows that Shanta Kamble has been assigned the role of catching hold of the deceased while he was being assaulted by appellant Anant Kamble with a knife. However, in his statement in the Trial Court the informant Sanjay Kamble P.W. 7 did not attribute this role to her and instead stated that she threw Chilly Powder in the eyes of the deceased. The second eye-witnesses Vimal Kamble. P.W. 5 also did not assign the role of catching hold to the appellant Shanta Kamble but like P.W. 7 stated that she threw Chilly Powder in the eyes of the deceased. For reasons more than one I am not prepared to accept this story of Shanta Kamble throwing Chilly Powder in the eyes of the deceased. In the first place in the FIR the informant P.W. 7 Sanjay Kamble has not mentioned that Shanta Kamble threw Chilly Powder in the eyes of the deceased. The second reason is that although Vimal Kamble P.W. 5 in her examination-in-chief in the Trial Court stated that Shanta Kamble threw chilly powder in the eye of the deceased but in her statement under S. 161 of the Criminal Procedure Code this fact was not stated by her to the Investigating Officer. When confronted with this omission she stated that she had told it to the Investigating Officer but he had not written it. I am not inclined to accept this explanation. In such a state of evidence, in my opinion, it would not be safe and prudent to accept the story that appellant Shanta Kamble threw Chilly Powder in the eyes of the deceased. Mr. N. M. Kachare learned Additional Public Prosecutor streneously urged that the Investigating Officer, in the presence of a panch recovered Chilly Powder from the place of the incident and inasmuch as this recovery of Chilly Powder corroborates the statements of P.W. 7 Sanjay Kamble and P.W. 5 Vimal Kamble. I should believe this part of the prosecution case. I regret I cannot accede to this contention. The main witness of the aforesaid recovery was the Investigating Officer Police Sub Inspector A. Y. Patil but Prosecution has not chosen to examine him and that being so it was perfectly legitimate for Mr. Marwadi to urge that the defence was deprived of the opportunity of testing the prosecution case in respect of recovery of Chilly Powder, by putting questions to the Investigating Officer.
Mr. Kachare also vehemently contended that the report of the Chemical Analyser to the effect that there were stains of blood on the sari of appellant Shanta Kamble is a very clinching circumstance which fixes her participation in the crime. I regret that I do not find any merit in this contention of Mr. Kachare. In the first place as has been rightly contended by Mr. Marwadi this circumstance was not put to her in her statement under S. 313 of Criminal Procedure Code and that being so it cannot be used against her. (See Sharad Birdhichand Sarda v. State of Maharashtra). Secondly, in my opinion, in the background of what has been stated above, this circumstance by itself would not be sufficient for sustaining the conviction of appellant Shanta Kamble.
11. For the aforesaid reasons, the learned Trial Judge was in error in convicting appellant Shanta Kamble and consequently I give her the benefit of doubt.
12. However, I do not agree with the contention of Mr. Marwadi that the evidence against appellant Anant Kamble is not dependable and trust-worthy for maintaining his conviction. I cannot accede to Mr. Marwadi’s contention that if the participation of Shanta Kamble in the instant case was not established beyond reasonable doubt then inasmuch as the same two eye-witnesses depose about Anant Kamble he should also be given the benefit of doubt. It is well settled by a catena of decisions of the Apex Court that the maxim falsus in uno falsus in omnibus has not been accepted by our Courts. While assessing evidence Courts try to separate the grain from the chaff and it is only where truth and falsehood are so inextricably mixed that it is impossible to separate them that the entire statement of a witness is rejected (See Balaka Singh v. State of Punjab). Here this sifting is possible. So far as Anant Kamble is concerned right from the FIR to the statements of the eye-witnesses recorded in the Trial Court the Prosecution case is consistent against him. Throughout, the Prosecution case has been that appellant Anant Kamble assaulted the deceased with a knife. It is true, as Mr. Marwari submits, that the two eye-witnesses namely Vimal Kamble and Sanjay Kamble are highly interested witnesses being the mother and real brother of the deceased respectively, but the law of the land is not that the evidence of such witnesses should be mechanically rejected. The law only requires that such evidence should be scrutinised with caution. I have exercised that caution while evaluating the testimony of these two eye-witnesses and find it to be implicitly reliable and trustworthy vis-a-vis appellant Anant Kamble. The manner of the assault given out by these eye-witnesses in the Trial Court, vis-a-vis Anant Kamble is in conformity with the medical evidence to which I have referred in the earlier part of my judgment. According to Dr. Vijay Kumar Munde (P.W. 4) the injuries of the deceased could have been caused by a knife.
13. Assurance is lent to the testimony of the two eye-witnesses vis-a-vis appellant Anant Kamble by the circumstance that the FIR was lodged promptly. As stated earlier, the FIR was lodged 4-00 a.m. on 23-1-1991 i.e. within about sixteen hours of the incident taking place. It has come in the evidence of P.W. 7 Sanjay Kamble that Police Station Gandhinglaj where the FIR was lodged was situated at a distance of about 16 to 18 Kms. from the place of the incident. In this FIR appellant Sanjay Kamble has been named.
14. So far as Mr. Marwari’s contention that no witness of locality has been examined is concerned, I may mention that it is not the law that this would prove fatal to the prosecution. If the evidence adduced by the prosecution is found to be reliable and it is certainly the case here vis-a-vis appellant Anant Kamble, non-examination of witnesses of locality, in my opinion, would by itself not render his conviction unsustainable in law.
15. For the aforesaid reasons I do not find any merit in Mr. Marwari’s contention that appellant Anant Kamble also deserves the benefit of doubt. In my opinion his conviction has been correctly arrived at by the learned Trial Judge.
16. Mr. Marwari then urged that looking to the circumstance that the appellant Anant Kamble is languishing in jail since 23-1-1991 i.e. since nearly the last 3 1/2 years and also taking into consideration that the informant and witnesses are close relations of the appellant it would be conducive for the future cordial relations between the parties that the sentence of appellant Anant Kamble be reduced to the period already undergone by him. The learned Additional Public Prosecutor streneously urged that considering the brutal nature of assault made on the deceased, no leniency should be shown to appellant Anant Kamble. My first reaction was to accede to the aforesaid contention of the learned Additional Public Prosecutor and not to reduce Anant Kamble’s sentence. But keeping in mind that parties are very close relations, that life long they have to live together in the immediate vicinity of one another and that the evidence shows that an exchange of abuses between the parties lasting about 10 to 20 minutes preceded the assault on the deceased I accede to the aforesaid submission of Mr. Marwari and reduce the sentence of appellant Anant Kamble to the period already undergone by him.
17. In the result this appeal succeeds in part. The conviction and sentence of appellant Shanta Kamble imposed by the learned Trial Judge under S. 304-II of IPC read with S. 34 of IPC is set aside. She is on bail. She need not to surrender. Her bail bond stands cancelled and surities discharged. In case she has paid the fine, the same shall he refunded to her. As regards appellant Anant Kamble although I maintain his conviction under S. 304-II of IPC read with S. 34 of IPC, as directed by the learned Trial Judge, but I reduce his sentence to the period already undergone by him. He is in jail and shall be released forthwith unless wanted in some other case. Office shall communicate my order forthwith to the Superintendent of the Jail, in which appellant Anant Kamble is detained.
18. Order accordingly.