PETITIONER: DATTU RAMRAO SAKHARE AND ORS. Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 08/05/1997 BENCH: G.T. NANAVATI, S.P. KURDUKAR ACT: HEADNOTE: JUDGMENT:
Present:
Hon`ble Mr. Justice G.T. Nanavati
Hon`ble Mr. Justice S.P. Kurdukar
Umesh Bhagwat, Adv. forthe appellant No.1
C.N. Sree Kumar, Adv for the appellant Nos.2-3
G.B. Sathe, Adv. for S.M. Jadhav, Adv. for the Respondent
The following Judgment of the Court was delivered:
JU D G ME N T
S.P. KURDUKAR, J.
The appellants/accused have filedthis Criminal Appeal
challenging the Judgment and order of conviction and
sentence passed against them under Section 302 readwith
Section34 IPCby the Bombay High Court Bench at Aurangabad
on September 5, 1990. The first appellant is the husband of
third appellant and the second appellant is their son. The
prosecution case in brief is asunder:
(2) Appa (since deceased) was the brotherof A-1 and
Chandrakant. In a partition between these three brothers by
metes and bounds each one was cultivating the land fallen to
his share. Their lands are situated at village Khudawadi,
Taluka Tuljapur in District Osmanabad.There was, however a
disputebetween Appa and A-1 in respect of the location of
foot track. OnSeptember 25, 1987 at about 5.00 p.m.,Appa
was working inthis field whereas his daughter, Sarubai
(P.W.2)was grazing the cattle near about the place of
incident. The appellants were also doing theiragricultural
work in their own land. According tothe prosecution the
appellants came to the land of Appa and started assaulting
him with axes and sickle. Sarubai (P.W.2) seeing the assault
caused by appellants came near the place ofincident and
requested themnot toassaulther father. A-1and A-2were
assaulting with axes whereas A-3 was assaulting with a
sickle.Due to this assault Appa fell down and made a signal
to hisdaughter Sarubai to go to the abadi and call her
mother Ambubai(P.W.1). Sarubai (P.W.2) wentto the house
but finding that her mother was not there, she left the
messagewith her aunt Muktabai,wife ofChandrakant that she
be informed to come to the field with abullockcart asAppa
was assaulted by the appellants. She then came back to the
place of incident. Ambubai (P.W.1) when returned homefrom
work, Muktabaiconveyed the message to her and thereafter
she requested Shivaji (P.W.4)to geta cart.Shivajithen
broughtthe cart fromMaruti and then they reached at the
place of incident. At that time Appa was bleeding profusely
and was unableto speak. Sarubai (P.W.2) told her mother
that the appellants had assaulted him. Ambubai and Shivaji
then put Appa into the cart and lift for the dispensary at
Naldurg. Doctor on duty declared him dead. Ambubai (P.W.1)
then went to the police station and lodged the first
Information Report (Ex.31) at about 10.15 p.m. After
registering the FIR the investigatingofficerproceeded to
the hospital and thereafter to the place of incident. During
the course of investigation, statements of various persons
came to be recorded. The accused came to bearrested on
26.9.1987 and in pursuance of their statements the
incriminated articles were seized. After completing the
investigation the appellants were putup fortrial for an
offencepunishable under Section 302/34IPC.
(3) The appellants denied the chargeand claimed to be
tried. According to them theyhave been falsely implicated
in present crime. They had neither goneto the field ofAppa
nor they had assaulted him. They pleaded that they are
innocent and beacquitted.
(4) The prosecution in support of its case principally
relied upon the evidence of eye witness Sarubai (P.W.2)
(minor)aged about 10 year. Ambubai (P.W.1) Shivaji (P.W.4)
and Shanker (P.W.5) were the main witnesses to corroborate
the evidence of Sarubai. The prosecution also reliedupon
the various panchnamasincluding the panchnamas relating to
the recovery of incriminatingarticles. Dr.Onkar Swami
(P.W.3)performed the autopsy on the dead body of Appellants
did notlead any evidence in defence.
(5) The Learned Sessions Judge Osmanabad onappraisal of
oral and documentary evidence on record by hisjudgment and
order dated 1.7.1988 convicted the first appellant under
Section302 IPC for committing the murder of Appa. The
appellants Nos.2 and 3, however weregiven the benefit of
doubt and cameto be acquitted. Aggrieved bythe judgment
and order of conviction and sentencethe first appellant
Dattu preferredCriminal AppealNo.352 of 1989 whereas State
of Maharashtrapreferred Criminal Appeal No.319 of1988
challenging the order of acquittal of A-2 and A-3. Both the
appealswere heard together and the DivisionBench of the
High Court by its judgment and order dated September 5,1990
dismissed Criminal Appeal No.352 of 1989 andallowed the
Criminal Appeal No.319of 1988 filled by the state and
convicted A-2 and A-3under Section 302/34 IPC. It is the
judgment and order passed by the High Courtwhich is the
subjectmatter of challenge in this appeal.
(6) The entireprosecution case restedupon the evidence of
Sarubai(P.W.2) a child witness aged about 10 years. It is,
therefore, necessary to find out as towhetherher evidence
is corroborated from other evidence on record. A child be
the basis of conviction. In other words even in the absence
of oath the evidence of a child witness can be considered
under Section 118 of the evidence Act provided thatsuch
witnessis able to understand the question andable togive
rational answers thereof. Theevidence of a child witness
and credibility thereof would depend upon the circumstances
of each case. case. The onlyprecaution which the court
should bear inmind while assessing the evidence of a child
witnessis that the witness must reliable one and his/her
demeanour must be like any other competent witness and there
is no likelihood of being tutored. There is no practicethat
in every case the evidence of such a witness becorroborated
before a conviction can be allowed to stand but, however as
a ruleof prudence the courtalways finds itdesirable to
have the corroboration tosuch evidence from other
dependable evidence onrecord. In the light of thiswell
settledprinciple we may proceed to consider the evidence of
Sarubai(P.W.2).
(7) The learned trialjudge recorded his reasons and found
that Sarubai was a competent witnessand her evidence is
unblemished. The High Court also accepted the evidence of
Sarubaias reliable one. We, therefore, do not see any
reason to disagree with the observations ofthe learned
courts below as regards the evidenceof Sarubai Wewere
taken through the judgments of the courts below as regards
the evidence of Sarubai We were takenthough the judgments
of thecourts below aswell asthe evidence ofSarubai. She
had stated in her evidence that whenshe was grazing the
cattle in the field at about 5.00 p.m, all the three
appellants camein her land andstartedassaulting Appa(her
father). A-1 and A-2 had axesin their hands while A-3 was
having a sickle in her hand. On seeing a ghastly attack on
her father she was verymuch scared, Appa then made a signal
to herto go the abadi andinformthe mother Ambubai
(P.W.1). She then immediately proceededtowardsabadi and on
the way she saw Shanker (P.W.5) who was working in his
field. After reaching home she found that her mother had not
returned from the work and, therefore, left themessagewith
Mukta, the aunt, about the assault on Appa and requested her
to askher mother Ambubai (P.W.1) to reach thefield with a
bullockcart. Sarubai (P.W.2) then returned tothe place of
incident. In the mean time Ambubai (P.W.1) who returnedfrom
the work got the message andrequested Shivaji (P.W.4) to
get the cart. Shivaji(P.W.4)then brought the cart of
Maruti in which they reached at theplace of incident.
Sarubai(P.W.2) narrated the entire incident to Ambubai
(P.W.1). Appa was then kept in the chart andwas taken to
the dispensaryat Naldurg. Doctor on duty, however declared
him dead. We have carefully examinedthe evidence ofthis
witnessand we find that it is totally unblemished. There is
no challenge to her evidence that she was inthe field at
the time of incident. Her evidence finds corroborationfrom
Shanker(P.W.5)who hadstated that when he wasin his field
he heard commotion inthe field of Appa andafter going
there he saw sarubai also in the field. Ambubai (P.W.1) in
her evidence stated that her daughter sarubai (P.W.2) had
gone to the field along with her father and she herself had
gone towork inanotherfield. When shereturned home in the
eveningshe got a message from Muktabai about the assault
and toget a bullock cart in the field. Shivaji (P.W.4) has
also stated onoath that when he received amessagefrom
Ambubaito geta carthe gotthe same from Maruti and
thereafter he and Ambubai went to the field. Sarubai (P.W.2)
then narrated the incident toher mother. Appa wasthen
taken to the dispensaryat Naldurg in the bullock cart where
he wasdeclared dead by theMedical officer. From the
evidence of these witnesses it is clear that all these
movements tookplace in a very shortspan oftime because
they reached the dispensary at Naldurg which is at a
distance of 15kms., from Khudawadi at about 9.30 p.m. or
10.00 P.m. We,therefore, seeno hesitation in confirming
the findings ofthe courts below that Sarubai was present in
the field alongwith her fatherat the time of incident.
(8) The second circumstance which lends corroboration to
the evidence of Sarubai (P.W.2) is that Ambubai(P.W.1) in
her First information Report lodged at10.15 p.m. had given
out the names of all the three appellants as assailants of
Appa. Althoughit was contended on behalf of the appellants
that the evidence ofSarubai (P.W.2) is concocted and
unreliable butwe seeno substance inthis contention. Dr.
Onkar Swami (P.W.3) whoheld the autopsy on thedead body of
Appa noted 16 injuries on thedead body of Appa. He stated
that these injuries were possible by three different weapons
and not by one weapon. It is needless to set out the
evidence of Dr. Onkar in detail since there isno challenge
to thefact that Appamet with a homicidal death due to
injuries on his person. The evidenceof Dr. Onkar (P.W.3)
corroborates the evidence of Sarubai (P.W.2) when she stated
that A-1 and A-2 had assaultedher father withaxes and A-3
with asickle.Out ofthese 16 injuries as many as 10were
incisedwoundsand injury No.3 was curved lacerated wound
which was attributableto A-3.Having regards to the nature
and the size of theseinjuries we have no manner of doubt
that this ghastly attack couldnot be caused by one person.
The High Courtin our considered view rightly held that the
medical evidence corroborates the evidence of Sarubai
(P.W.2).
(9) Inaddition to the above substantive evidence the
prosecution also relied upon the circumstantial evidence,
namely,recovery of certain incriminating articles. Clothes
of theaccusedwere seized under panchnama Ex.55 andthis
panchnama is proved by panch witnesses Ajmoddin (P.W.10).
Dhoti and cap of A-1 were sentto the chemicalanalyser and
his report is at Ex.28, wherein it is statedthat the cap
had human bloodstains of blood groupA whichwas thesame
blood group ofthe deceased. The blood group of A-1 is AB.
This weapons like axes and asickle were claimed tohave
been recovered at the instance of appellants pursuant to the
statement made under Section 27of the EvidenceAct butthis
evidence was not accepted by the trial court and we do not
proposeto accept the same.
(10) After going through the judgmentsof thecourts below
we are satisfied that the high Court was fullyjustified in
reversing theorder of acquittal passed by the trial court
as regards A-2and A-3 . Thehigh Court was also right in
upholding the conviction of A-1.
(11) Inthe result there isno substance inthe criminal
appeal and it is accordingly dismissed. From the office
reportdated25th January,1997 it appears that the
appellants arein jail and, therefore, no further order in
that behalf is called for.