ORDER
Vishnu Sahai, J.
1. The appellant, aggrieved by the Judgment and order dated 10th August, 1984, passed by the Additional Sessions Judge, Thane, in Sessions Case No. 253 of 1981, convicting and sentencing him to imprisonment for life for an offence under section 302 I.P.C., has come up in appeal before us.
2. The deceased Chintamani Tambada was the younger brother of the appellant. It is said that there was a dispute between them on account of land. The appellant was taking the entire yield. About six months prior to the incident, the appellant had come to the deceased with the intention to kill him. About two months prior to the incident, Chintaman Tambada had sold the grass and had appropriated the entire proceeds. Since no partition between the appellant and Chintaman Tambada had taken place, the former was angry with the latter.
On 4th June 1981, sometimes between 1 p.m. to 2 p.m., Chintaman Tambada, his wife Kamubai (P.W. 2), their sons Sunil and Nandkumar were sitting in a small hut in Vakharicha Vada, within the limits of Police Station Tarapur, District Thane. At that time, the appellant alongwith his sons Ravindra and Bharat came in a bullock cart. The said bullock cart stopped near the hut of Chintaman Tambada. The sons of the appellant climbed over the mango tree which was there. As a result thereof, a branch of the said tree was broken. Chintaman thought that the sons of the appellant must have fallen down and consequently went to the tree; little realising that his end was only some seconds away. As soon as he came out the appellant, who was standing beneath a Tad tree armed with a gun, the said tree being situated at a distance of about 15 to 20 feet from the mango tree where Chintaman was standing, fired on Chintaman resulting in the latter sustaining fire arm injuries and falling down on the ground.
According to the prosecution, the murder of the deceased was witnessed by his wife Kamubai (P.W. 2).
It is said that within 2 to 3 minutes of the appellant firing upon Chintaman, Deepak Shelar (P.W. 1) whose mother was the real sister of Chintaman and the appellant, came on the place of the incident. There Kamubai told him that the appellant had fired upon and killed Chintaman.
3. The evidence is that Deepak Shelar first tried to contact the Kotwal, but he was not available. Thereafter, he went to the Police Patil, who lived in Parnali. He too was also not available. Thereafter, he proceeded to Police Station Tarapur, where he lodged his F.I.R. the same day at 6 p.m. The F.I.R. is at Exh. 23. It may be mentioned that the distance between the place of the incident and Police Station Tarapur is 7 Kms. The evidence of P.S.I. Dattatray Khedkar (P.W. 9) is that, on the basis of the F.I.R. he registered an offence under section 302 I.P.C.
The evidence of P.S.I. Dattatray Khedkar is that, immediately after lodging F.I.R., he proceeded to the place of the incident which he reached the same evening at 6.30 p.m. He went to the house of the appellant. He was not there. His wife Savitri was there. In the presence of panch Rama Gowari (P.W. 7), he searched the house of the appellant and from the loft recovered a gun. Savitri opened the lock of the cupboard from wherein he recovered a live cartridge. The said recoveries were made under a panchanama.
The next day he interrogated some witnesses including Kamubai. It is also said that the next day, the appellant reported at the police station. He was taken in custody. He alongwith P.S.I. Khedkar went to his house. There in the presence of public panch Chintaman Raut (P.W. 8), the appellant asked his wife Savitri to bring the gun licence. She brought the same. The same was attached under a panchanama. Bharat, the son of the appellant took out an empty cartridge which was concealed in the ground and handed it over to the police. The said recovery was also made under a panchanama.
It is said that the recovered gun, the live cartridge and the empty cartridge were sent to the Ballastic Expert.
It is also said that on the place of incident, the Investigating Officer found blood stains and he took some of them in possession under a panchanama. The said recovery was made also the same day i.e. 5.6.81. After completing the Investigation, P.S.I. Khedkar submitted the charge-sheet against the appellant, on 10.6.81.
4. Going backwards, the autopsy on the dead body of the deceased Chintaman Tambada was conducted on 5-6-1981 between 10 a.m. to 11.45 a.m. by Dr. Bhaskar Chol (P.W. 3). The Doctor found the following external injuries on the person of the deceased:
“The wound of entry is 2 inches below the left nipple on chest. Irregularly circular 2 inches in size and surrounded by 50 small punctured wounds over an area of 6 inches in diameter. The edges of wound were inverted and wad is found deeper in wound of entry. No wound of exit.”
On internal examination, the Doctor found the following injuries :
“Wound of entry on chest wall as column No. 17 and anterior ends of 6th to 9th left ribs were fragmented. Both lungs lacerated and destructed in lower lobes. Tissues are blackened wad and lead shots (pellets) found in cavity, blood is present in cavity. Pericardium and heart were ruptured and destructed. Stomach ruptured and lacerated and semi-solid rice food particles seen outside containing the stomach cavity.
liver: ruptured and left lobe lacerated and liquified. Lead shots found in liver
substance.”
The Doctor sent the wad and lead shots to the Ballastic Expert for his opinion. In the opinion of Dr. Chol, ante-mortem injury suffered by the deceased was possible by the gun shown to him, Article No. 1. He also opined that the deceased died on account of shock and haemorrage due to injuries to vital organs like heart, lung and liver.
5. The case was committed to the Court of Sessions in the usual manner. A charge under section 302 I.P.C. was framed against the appellant to which, he pleaded not guilty and claimed to be tried.
During trial, the prosecution examined in all 9 witnesses. One of them viz. Kamubai (P.W. 2) was examined as an eye witness.
In defence, no witness was examined.
The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above.
Hence this appeal.
6. We have heard Miss S.D. Khot holding for Mr. Nitin Pradhan, for the appellant and Mr. D.A. Nalavade, Additional Public Prosecutor for the respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellant recorded under section 313 Cr.P.C.; and the impugned judgment. After thoughtfully reflecting over the matter, we are implicitly satisfied that, there is no substance in this appeal. As a logical imperative of our said satisfaction, this appeal has to be dismissed.
7. The central question to be examined in this appeal is, whether the evidence of Kamubai (P.W. 2), the solitary eye-witness inspires confidence ?
At the very outset, we would like to point out that, in view of the provisions contained in section 134 of the Indian Evidence Act which provides :
“Number of witnesses :— No particular number of witnesses shall in any case
be required for the proof of any fact.”
There is no impediment on the Court recording/sustaining a conviction on the testimony of a solitary eye-witness. In all fairness, we should also point out that, Miss Knot has not urged that the same is not permissible.
What Miss Khot has urged and rightly, in our judgment, that a Court should be slow in recording/sustaining a conviction on the testimony of a solitary eye-witness. It should only do so if the evidence of such a witness inspires implicit confidence. With this submission of hers we are in perfect agreement.
Back to square one, the question is, whether Kamubai’s testimony inspires confidence ? We have to evaluate her testimony in the background ot two circumstances :–(a) she is the wife of the deceased and hence a interested witness; and (b) she is the real sister-in-law of the appellant and that being so, unless there were the most compelling reasons, she would not falsely implicate him on a murder accusation.
7A. In paragraph 2 of our judgment, we have set-out the prosecution story on the basis of the recitals contained in the examination-in-chief of Kamubai. Hence, we do not want to reproduce it verbatum. In short, what she has stated is that, there was an enmical strain between the appellant and her husband Chintaman; both of whom were real brothers. On the date of the incident, sometimes between 1 p.m. to 2 p.m. in a bullock-cart, the appellant accompanied by his two sons came. The bullock-cart was stopped near her hut. Thereafter, the sons of the appellant climbed the mango tree and a branch thereof was broken. Her husband Chintaman got perturbed and thought that the sons of the appellant might have fallen as a result of the breaking of the said branch, hence he came out. At that time, the appellant was standing with a gun beneath a tad tree, which was situated at a distance of about 15 to 20 feet from beneath the mango tree where Chintaman was standing. The appellant fired from his gun and the said fire struck Chintaman who fell down after receiving the resultant injury. Thereafter, the appellant and his sons ran away in the said bullock-cart. Her evidence further is that two to three minutes later, her nephew Deepak Shelar came. She told him about the incident and thereafter, he went to police station Tarapur and lodged the F.I.R.
7B. We have gone through the entire statement of Kamubai. We have thoughtfully reflected over the issue of her veracity and our conclusion is that she is a wholly reliable witness. In our view, on account of being sister-in-law of the appellant, she would not have falsely implicated him on a murder charge.
The manner of the incident as described by her is corroborated by the medical evidence. The evidence of the autopsy surgeon Dr. Chol shows that, the fire armed injury received by the deceased was possible by the gun shown to him. The evidence of the Ballastic Expert Madhukar Damodre is that, the shot was fired on the deceased from a distance of 5 to 6 yards. This corroborates Kamubai’s evidence when she says that, tad tree from beneath which the appellant fired on the deceased was situated at a distance of 15 to 20 feet from the mango tree beneath which the deceased was standing. It is significant to point out that, a perusal of the ante-mortem injury suffered by the deceased shows that, there were 50 apertures in it and the number of apertures also confirm that firing must have been from a distance.
Apart from the medical evidence, assurance is lent to the evidence of Kamubai by the circumstance that there was a strong motive for the appellant to commit the
crime. We have referred to this motive in paragraph 2 of our judgment. The motive in short was that, no partition of lands between the appellant and his brother Chintaman Mahadeo Tambada (deceased) had taken place and on account of this, the relationship was very bad. It is said that, about six months prior to the incident, the appellant armed with a gun had come to the house of Chintaman lambada in order to kill him. It is further said that two months before the incident, Chintaman had sold some grass and kept the sale proceeds and this had infuriated the appellant.
On the question ot motive, apart from the evidence of Kamubai, there is also the evidence of Deepak Shelar. In paragraph 4, during the course of cross-examination, he stated that there was a dispute between the appellant and the deceased on account of land. We also find his evidence to be credible.
We find that the motive stands proved in the instant case.
8. Assurance is also forth-coming to the evidence of Kamubai by that of Deepak Shelar. Deepak Shelar’s mother is the real sister of the appellant and that being so, he would be the last person to depose falsely against the appellant. Deepak Shelar has stated that when he reached the place of the incident, Kamubai told him that the appellant had fired on the deceased.
8A. In the instant case, a very strong corroboration is forth-coming to the evidence of Kamubai and Deepak Shelar by the evidence of the Ballastic Expert Madhukar Damodre (P.W. 4). The Ballastic Expert has stated that, in both barrels of gun he found blackening. He also stated that the empty cartridge was fired from the right barrel. The learned trial Judge rightly did not pay credence to the circumstance of blackening being present in the left barrel on the ground that, it might have been the result of some previous firing. We find his view to be acceptable.
It is significant to point out that, the gun was recovered from the toft of the house of the appellant on the date of the incident itself. For the said recovery, we have the evidence of the public panch P.W. 7 Rama Gowari.
It is also significant to point out that an empty cartridge was taken out by the son oi the appellant from the house on the next day c! the incident i.e. on 5-6-1981. For that, we have the evidence of the public panch Chintaman Raut (P.W. 8).
We may also mention that, for both the recoveries we have the evidence of P.S.I. Khedkar (P.W. 9).
9. We have gone through the evidence of both the public panchas and P.S.I. Khedkar. We find their evidence to be reliable. None of the two public panchas had any animus or rancour against the appellant and that being so, they would not have falsely deposed about the recoveries, unless they took place In their presence. It is true that, P.S.I. Khedkar is a police witness, but way back as 1956 in the oft-quoted case of Aher Raja Khima, appellant v. State of Saurashtra, respondent, , the Supreme Court said that, the presumption that a person acts, honestly equally applies to a Police Officer. We would do well to bear in mind that neither P.S.I. Khedkar bore any grudge or had any rancour against the appellant.
We have gone through the statements of all these three witnesses and we find the same to be reliable.
10. In our view, the learned trial Judge rightly concluded that the prosecution had proved its case against the appellant beyond reasonable doubt. It is true that Dr. Chol, the autopsy surgeon, has not stated in his deposition, that the injuries of the deceased
were sufficient in the ordinary course of nature to cause death, but that would make no difference. For the oversight of the prosecution Counsel during trial to put this question to Dr. Chol no premium accrues to the accused. In the instant case, considering the extensive internal damage suffered by the deceased, which included liver being ruptured, left lobe of the liver being lacerated, peri-cardium and heart being ruptured, it can be said without any shadow of doubt that, the injuries were per se sufficient, in the ordinary course of nature, to cause death. That we can arrive at our own conclusion on the sufficiency of the injuries to cause death in the ordinary course of nature, has not been disputed by Miss Knot. Actually, no authority is required in support of this proposition. But those who have a fetish for one, would be well advised to peruse the observations of the Apex Court in paragraph 6 of the well-known judgment of Brij Bhukan and others v. State of Uttar Pradesh, .
11. Though the impugned judgment was practically impossible to assail, Miss Khot left no stone unturned. She made a large number of submissions before us. She firstly urged that, the prosecution case that, Kamubai informed Deepak Shelar about the incident is unworthy of belief, because in the F.I.R. which was lodged by the latter, there is no mention of this. We regret that, we cannot accede to her contention for two reasons. Firstly, because the F.I.R. is not an encyclopaedia. The object of the F.I.R. is to set-out the gravamen ol the allegations against the accused, which we find in the instant case. Secondly, what Miss Khot seems to have lost sight of is that, Deepak Shelar when he made the F.I.R., must have been in a terribly mentally perturbed condition. After all, he had tost his real maternal uncle. If seized by grief, he omitted mentioning that Kamubai had told him that appellant had killed Chintaman Tambada, no capital can be made out of this omission. Consequently, we reject the said contention of Miss Khot.
Miss Khot secondly contended that the circumstance that, Kamubai was not interrogated the same day, but the next day, shows that, she is a got up witness. She urged that evidence of P.S.I. Khedkar shows that on the date of incident itself at 6.30 p.m. he had reached the place of incident. She urged that, if this was so, then Kamubai should have been interrogated the same evening. In her contention, the lapse of the Investigating Officer in doing so indicates that, she did not witness the incident. We again regret that, we cannot accede to her contention. Miss Khot seems to have lost sight of cross-examination of P.S.I. Khedkar. When he was questioned on this aspect, as is borne out from paragraph 4 of his statement, he stated that he did not record her statement the same evening as she was weeping. We find the said answer of P.S.I. Khedkar to be perfectly plausible. Any woman, who had lost her husband barely 5 hours ago was bound to weep. Consequently, we reject this submission also.
Thirdly, Miss Khot contended that the circumstance that, Oeepak Shelar, the informant has stated in his evidence that, he reached the police station at 4.00 p.m., but the F.I.R. was lodged at 6 p.m., shows that time was spent in concocting a false case against the appellant at police station Tarapur. Her contention certainly appeared to be attractive on the first blush, but on a deeper scrutiny, we were reminded of the time-honoured saying that, the first impressions are often deceptive. What Miss Khot seems to have lost sight of is that, Deepak Shelar, as appears from his evidence, was a rustic witness having no chronometric sense of time. Therefore, when he says that he reached the police station at 4 p.m., some margin should be made. In this connection, it is significant to refer to the evidence of P.S.I. Khedkar which shows that
Deepak Shelar had come to the police station Tarapur at about 6 p.m. Therefore, we are not inclined to give much importance to the statement of Deepak Shelar. It is significant to point out that, in his cross-examination, no suggestion was made to P.S.I. Khedkar that Deepak Shelar had come to the police station earlier and the F.I.R. was lodged later at 6 p.m. For these reasons, we also reject this submission of Miss Khot.
Fourthly, Miss Khot contended that the circumstance that, the Ballastic Expert found blackening in the left barrel of the gun also casts a shadow of doubt on the prosecution case. Her submission has been rightly repelled by the learned trial Judge, who in the impugned judgment has observed that the blackening in the left barrel may have been on account of the gun being used earlier. Consequently, this submission of hers is also without merit.
Miss Khot finally contended that, looking to the circumstance that the appellant was aged 76 years today, it would be indeed very-very harsh to send him to jail to serve a life term. We wish to point out, that courts have to be guided, not by emotion, but by reason and if the converse happens, justice would run riot. We feel distressed on the thought that, at the age of 76, the appellant has to go back to jail to serve out a life term. But we cannot help for he is squarely guilty of an offence punishable under section 302 I.P.C. which only prescribes for two sentences, death or life imprisonment. He has got the lessor of them. If we reduce his sentence further we would be passing a judgment contrary to the provisions contained in section 302 I.P.C. and this certainly, we are not prepared to do.
12. For the aforesaid reasons, we find that this appeal is devoid of substance and has to be dismissed.
13. In the result, this appeal is dismissed. The judgment and order dated 10th August, 1984, passed by the Additional Sessions Judge, Thane, in Sessions Case No. 253 of 1981, convicting and sentencing the appellant to undergo imprisonment for life for the offence punishable under section 302 I.P.C. is confirmed. The appellant is on bail. He should be taken into custody forthwith to serve out the sentence.
Before parting with the judgment, we would like to record our appreciation for the assistance which we have received from the learned Counsel for the parties in the disposal of this appeal. Particularly Miss Khot, learned Counsel for the appellant put in a tremendous effort and tenacity in arguing this appeal.
In case an application for a certified copy of this judgment is made, the same shall be issued on an expedited basis.
14. Appeal dismissed.