JUDGMENT
Sahai, J.
1. Vide Judgment and order dated 16-10-1982, passed in Sessions Case No. 7 of 1982, the learned Sessions Judge, Raigad convicted and sentenced the appellants in the manner stated hereinafter :-
i) Under Section 302 r/w section 149, IPC to imprisonment for life.
ii) Under section 147, IPC to one year RI; and
iii) Under section 148, IPC to two years RI. In addition, the appellant Mahadeo Devji Gambhir was convicted under sections 325, IPC and 323 IPC. Under the first count, he was awarded a sentence of two years RI and under the second count, a sentence of one year RI; and
appellant Dattaram Devji Gambhir was convicted under section 323, IPC and sentenced to undergo two years RI.
tences of the appellants were directed to run concurrently.
may be mentioned that along with the appellants, 12 persons namely :
1) Marauti Vithal Batavale
2) Laxman Hari Batavale
3) Damu Govind Gade
4) Damu Bhiku Gothekar
5) Narayan Dagdu Kare
6) Parshuram Rama Batavale
7) Nathuram Vithoba Batavale
8) Dagadu Sudkya Kare
9) Ganpat Kanu Chorge
10) Devji Dagadu Gothekar
11) Bharaya Balaji Kule
12) Balaram Narayan Batavale
were also prosecuted and tried but, they have been acquitted vide impugned judgment.
2. Briefly stated the prosecution story runs as under :-
The informant Tukaram Batavale PW 4 was brother of the deceased Malu and son of Hari and Laxmi PW 6. The appellant Narayan, Dattaram, and Shivaji Datavale are said to be cousins of the acquitted accused Parshuram Batavale. The appellants Mahadeo Gambhir, Dattaram Gambhir, and Narayan Gambhir are said to be real brothers. The appellants Namdeo Gothekar and Hari Gothekar are said to be ousin brothers. All the appellants are said to be inter-related.
In the year 1971, appellant Namdeo Damu Gothekar and Mahadeo Devji Gambhir had assaulted the informant’s brother Malu, his father Hari and one Krishna. A complaint had been filed. However, the matter was compromised in the year 1992. The acquitted accused Parshuram (uncle of the informant) had filed a civil suit against the informant’s father and others for partition of land. Sometimes in the year 1980, when the civil suit was pending and informant and Malu had gone to the land, which was the subject matter of the civil suit, appellants Narayan Datavale and Mahadeo Gambhir along with acquitted accused Damu Gothekar came and assaulted them. Parshuram was also with them. In self-defence the informant and others assaulted them. However, before decision of the case. Malu was killed.
On 23-1-1981, informant and Malu were in their field known as ‘Sambarshet.’ At that time, appellants Narayan Datavale, Mahadeo Gambhir, Dattaram Gambhir and the acquitted accused Dagadu Kare, came and told them not to cultivate their land or else they would be murdered. Hence, the informant and others went to Tala Police outpost and lodged a non-cognisable complaint (Exhibit 16) there.
On 1-11-1981, at about 3 p.m. the informant, Malu, Malu’s wife Parvati and four labourers came to Sambarshet field for harvesting paddy. They lifted about 20 bundles of paddy. They tied about 7 bundles of paddy. At about 6.30 p.m. while the informant and Malu along with a bundle of paddy, on their heads were returning, to their house, and when they reached near their cattleshed, they found that the appellants and the acquitted accused were waiting in ambush in a lane. Excepting the appellant Dattaram Gambhir, who is alleged to be armed with a small axe, and Laxman Batavale, who is said to be carrying a tin containing acid, the remaining persons had sticks. On seeing the informant, appellant Mahadeo Gambhir gave a stick blow on his left forearm and the appellant Dattaram Gambhir inflicted an axe blow on the shin of Malu. Malu fell down as a result of receiving the blow. Thereafter, appellants Narayan Datavale, Namdeo Gothekar, Mahadeo Gambhir, and Hari Gothekar started assaulting Malu with sticks. The acquitted accused Laxman threw acid on Malu. While the informant was running, the appellant Mahadeo Gambhir dealt a stick blow on his left forearm. During the course of assault, the informant is alleged to have run to Tala outpost. He narrated the incident to constable Khare who was present at the outpost. Thereafter, the informant, Constable Khare and Constable Thakur came to the scene of incident. By the time, the informant and others reached the place of the incident, Malu had succumbed to his injuries. The informant went to his cattle shed where he found his father lying injured. From the cattle shed, he and Constable Khare went to police station Mangaon for recording a complaint.
3. The FIR of the incident was lodged by Tukaram PW-4 on 2-11-1981 at 2.30 a.m. The FIR is Exhibit 16. It was recorded by PSI Gajanan Patil. In the said FIR, appellants are named.
4. It also appears that during the course of the incident, Laxmi PW-6 and Hari, the mother and father of the informant respectively also sustained injuries.
The injuries of Tukaram, Hari and Laxmi were medically examined by Dr. Vishwanath Yeshwant Bapat, PW-2.
The exact time of the medical examination of the injuries of Tukaram has not been mentioned by Dr. Bapat either in the injury report or in his statements the trial Court. In his statement, Dr. Bapat said that he had examined Tukaram on 2-11-1981 in the early hours of the day. The injuries of Tukaram are noted in the injury report Exhibit 7. The following injuries were found on Tukaram’s person :-
Inflammation over right hand wrist.
Opinion : Possible by hard and blunt object.
Age of injuries : Injury is fresh.
The injuries of Hari and Laxmi were curiously enough medically examined on 2-11-1981 at the same time i.e. at 4.15 p.m. on the person of Hari, following injuries were found :-
1) CLW over left shin
2) Abrasion over right shin
3) Patient was referred to Civil Hospital
Alibag for suspected fracture of Lt. humerus.
X-ray shows fracture of left humerus
Age of injuries : injuries are fresh
Opinion : Possible by hard and blunt object.
On the person of Laxmi, following injuries were found :-
1) CLW Rt. hand base of index finger anteriorly.
2) Abrasion forearm left hand
3) Patient was referred to Alibag for suspected fracture of radius lower 1/3 (left) X-ray shows fracture of radius lower 1/3 (left) and of Right proximal phalanges index finger.
Age of injuries : Fresh injuries
Opinion : Possible by hard and blunt object.
5. The post mortem examination on the dead body of Malu was conducted on 2-11-1981 between 4.10 p.m. and 5.30 p.m. by Dr. Ashok Joshi PW-3. Dr. Joshi found the following ante-mortem injuries on the corpse :-
1) CLW on scalp on left fron to parietal region 1 1/2″ x 1/2″ subcutaneous deep (left)
2) CLW on scalp on left occipitoparietal region 2 1/2″ x 1/4″ subcutaneous deep.
3) CLW on scalp on right occipitoparietal region, shape 2 1/2″ x 1/4″ subcutaneous deep.
4) CLW on nasion over face 1″ x 1/4″.
5) CLW on face below right eye horizontal 1 1/2″ x 1/4″.
6) Bleeding from left ear
7) Abrasion over right cheek from middle of ear to angle of cheek.
8) CLW over posterior side of right elbow 1″ x 1/2″ subcutaneous deep.
9) Lfe wrist on dorsal side palpable fracture of unla.
10) Left forearm abrasion
11) Compound fracture (open) with protusion of lower 1/3rd of tibia from CLW 2″ x 1 bone deep.
12) Contusion over right lateral anterior thigh 4″ x 1 1/2″.
13) Abrasion over right knee joint.
14) Abrasion on right shin middle 1/3.
15) Right tibia lower 1/3rd fracture and open. Fibula is not fractured and is normal.
16) Radius and ulna fractured at lower 1/3rd of right forearm. Haemorrhage around the fractured bones and muscle mass seen. It is adherent to the tissues.
On internal examination, Dr. Joshi found fracture of base of middle cranial fossa.
In the opinion of Dr. Joshi, the deceased died on account of cardio respiratory failure due to shock and haemorrhage caused as a result of fracture of right lower 1/3rd of tibia, right unla lower 1/3rd and left side of base of skull (intracranial haemorrhage). In the opinion of the doctor, the injuries of the deceased were sufficient in the ordinary course of nature to cause his death. In his deposition in the trial Court, Dr. Joshi opined that injury No. 11 could be caused by a blow from blunt side of the blade of a small axe. However, in his cross-examination, he stated that there was no injury which could be caused by any sharp edged weapon.
6. Investigation of the case was conducted by PSI Gajanan Patil. On 2-11-1981, he visited the place of the incident and prepared a spot panchanama and the inquest panchanama. A perusal of the spot panchanama shows that paddy was found on the place of the incident. Same, day, he recorded statement of witnesses including Janardhan PW-5. Same day at about 2 p.m. he arrested the appellants and on their pointing out, recovered some sticks. He sent some of the recovered articles to the Chemical Analyst. After receiving the report from the Chemical Analyst. On 31-12-1981, he submitted the charge sheet.
7. The case was committed to the Court of Sessions in the usual manner.
In the trial Court, the appellants and the acquitted accused were charged on a number of counts including Section 302 r/w Section 149, I.P.C. During the trial, the prosecution examined as many as 8 witnesses and 3 of them namely Tukaram, Janardhan and Laxmi, PWs 4, 5 and 6 respectively were examined as ocular witnesses. During the trial, some exhibits were also tendered and proved by the prosecution. In defence, no witness was examined. After the evidence had been led by the prosecution, and the statement of the appellants and acquitted accused had been recorded, the learned trial Judge heard the submissions from either sides and thereafter passed the impugned judgment.
Hence, this appeal.
8. We have heard Mr. Madhavi Mhatre for the appellants and Mr. P. P. Behere, Additional Public Prosecutor for the State of Maharashtra. We have also perused the depositions of the witnesses examined by the prosecution, the exhibits tendered by it, statements of appellants recorded under Section 313, Cr.P.C. and the impugned judgment. After giving our most thoughtful consideration to the matter, we are of the view that there is substance in this appeal and it deserves to be allowed.
9. The short question is this appeal is as to whether the testimony of the three eye-witnesses namely Tukaram, Janardhan and Laxmi who are the brother, son and the mother of the deceased respectively, inspires confidence or not ? Our answer to the same is in the negative. While giving the said answer, we are conscious of the fact that Tukaram and Laxmi are injured witnesses according to the prosecution and normally, this Court is loath to reject the testimony of a injured witness. However, there is no immutable rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted as gospel truth for injuries may only at the best ensure presence of a witness but, are no guarantee of his credibility and truthfulness. It is an elementary norm of appreciation of evidence that before the testimony of even an injured witness can be accepted, it has to pass the test of truthfulness and should be in consonance with probabilities. We are reinformed in our view, by the decision of the Allahabad High Court, reported in 1984 All LJ 1316, Vijay Shankar Misra v. State, wherein in paragraph 22 their Lordships have observed thus :-
“It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, is necessary that the injured witness must be held to be a wholly reliable witness. Wherein in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness’s account given by him without independent corroboration by material evidence.”
10. We, now therefore turn to the question whether Tukaram and Laxmi are truthful witnesses, and whether would be safe us to accept their testimony. We have to examine their evidence and also that of Janardhan PW-5 in the background of the fact that they are not only very close relations of the deceased Malu, but, as is evident from the recitals contained in paragraph 2, are also inimical to the appellants.
Taking up the evidence of Tukaram PW-4 we find that both in the FIR and in his statement recorded in the trial Court, he has categorically alleged that the appellant Mahadeo Gambhir inflicted a blow with a stick on his left forearm. However, to our dismay, we find that the medical evidence indicates that he received no injury on his left forearm. He was examined by Dr. Vishwanath Bapat PW-2 who found that he had sustained inflammation over the right hand. This circumstance makes us have serious doubts about the time of the incident. We are inclined to accede to the submission of Ms. Mhatre, that this shows that the incident did not take place at 6.30 p.m. on 2-11-1981 as alleged by the prosecution but, sometimes later when it had become dark and the assailants could not be recognised. As a matter of fact, the injuries sustained by this witness do not inspire any confidence for another reason. Dr. Bapat PW-2 who examined Tukaram’s injuries has nowhere mentioned in the injury report Exhibit 7, or in his statement in the trial Court, the time when he examined Tukaram. In his statement in the trial Court, Dr. Bapat said that he had examined him in the early hours of the morning. Examination of injuries in such a casual and perfunctory manner by a doctor examined by the prosecution, is bound to rebound on the prosecution. When viewed in the light of the fact that there was no injury on the left forearm of Tukaram, this circumstance is considered. We are left with no other option but to return to a conclusion that either injuries of Tukaram were caused in late hours of the evening of 2-11-1981, when it had become dark or the claim of Tukaram that he sustained the injuries is a manufactured one and his injury report is also manufactured. We are alive to the fact that such a scathing criticism should not be ordinarily be made but when the circumstances happen to be as pointed out above, we are left with no other option. This is not the only reason as to why we are not able to place reliance on the evidence of Tukaram. There are some other reasons also. Tukaram both in his FIR, and in his statement in the trial Court, has specifically alleged that the appellant Dattaram Gambhir assaulted Malu with an axe and the acquitted accused Laxman threw acid on him. However, the medical evidence belies this inasmuch as no injury attributable to axe, namely an incised wound or injuries resulting from throwing of acid were found by the autopsy Surgeon Dr. Joshi, PW-3., on the corpse of the deceased. It is true that in his examination-in-chief Dr. Joshi stated that injury No. 11 of the deceased could be caused from the blunt side of the blade of the axe but this, we are not inclined to believe for two reasons :-
Firstly, there is no evidence to indicate that the blade of the axe was used from the blunt side and the question put to the doctor by the prosecution that injury number 11 could be caused by the blunt side of the blade of axe has no evidentiary basis to back it. Secondly, and more importantly, when a person goes to commit murder of another and chooses a weapon like an axe, he would use it in the normal and manner i.e. in the cutting or chopping manner. Absence of the axe and acid injuries on the person of the deceased, not only belies the participation of Dattaram Gambhir and Laxman, the latter having been acquitted by the trial Court, but also lends credence to the submission canvassed by Ms. Mhatre that the incident took place in darkness and not at the border line time between light and darkness namely 6.30 p.m. on 1-11-1981 as is the prosecution case.
When the aforesaid infirmities in the statement of Tukaram are evaluated in the backdrop of the fact that he is a highly interested witness, and is also inimical to the appellants, it becomes extremely hazardous., in our opinion, to sustain the conviction of the appellants on his testimony.
11. We now, take up the testimony of Laxmi PW-6, mother of the deceased. She claims that she received injuries during the incident. However, we have our grave doubts. As said earlier, the incident according to the prosecution took place on 1-11-1980 at 6.30 p.m. Laxmi was medically examined on 2-11-1981 at 4.15 p.m. by Dr. Bapat PW-2. Dr. Bapat has mentioned in her injury report that her injuries were fresh. It is common knowledge that injuries hardly remain fresh for about 8 to 10 hours at the most. That being so, there was no question of the injuries of Laxmi remaining fresh when they were examined by Dr. Bapat because at that time, they were 22 hours old. This, in our opinion, is by itself sufficient to throw out her claim of having received injuries during the course of the incident. But, matters do not end here. In this case, apart from her, her husband Hari is also alleged to have sustained injuries in the incident. Hari also was examined by Dr. Bapat PW-2 on 2-11-1981 at 4.15 p.m. We are completely at our wit’s end as to how the same doctor could have examined two injured witnesses simultaneously. This obviously means that Dr. Bapat has conducted the medical examination on Laxmi in a thoroughly careless and perfunctory manner and actually the injuries of Laxmi and Hari were examined at two different times. In this connection, it is significant to point out that Tukaram son of Laxmi has neither alleged in the FIR nor in his statement in the Trial Court that Laxmi received injuries. Again, it is difficult to believe Laxmi because, in her statement in the trial Court, she stated that the appellant Dattaram Gambhir who had an axe also assaulted the deceased. As mentioned earlier, the Autopsy Surgeon Dr. Joshi found no incised injury on the dead body of the deceased. The fall out of the aforesaid infirmities in the evidence of Laxmi is compatible with either of the two hypothesis :-
(a) That Laxmi did not receive injuries in the incident but, injuries were manufactured on her person sometime in the morning of 2-11-1981 in order to make her a injured eye witness;
(b) That the incident took place in darkness and Laxmi could not recognise the real assailants.
12. This leave us with the evidence of the third tye witness namely Janardhan PW-5, the son of the deceased. Firstly, we find that he is a child witness. In his statement in the trial Court, which was recorded on 5-10-1982, he gave out his age as 12 years meaning thereby that at the time of the incident, he was 11 years old.
It is well-settled that the testimony of a child witness should only be accepted after the greatest caution and circumspection. The rationale for this is that it is common experience that a child witness is most susceptible to tutoring. Both on account of fear and inducement, he can be made to depose about things which he has not seen, and once having been tutored, he goes on repeating in a parrot like manner what he has been tutored to state. It is commonly felt and rightly in our view, that such witnesses are the most dangerous witnesses. In this connection, it would be necessary to refer to the observations contained in paragraph 15 of the Division Bench decision of this Court reported in 1995 Cri LJ 1432 State of Maharashtra v. Prabhu Gade, to which one of us was a party (Vishnu Sahai J.) The said observations read thus :-
The testimony of a child witness, should be evaluated with the greatest caution and circumspection. It is common knowledge that there can be no more dangerous witnesses than children for they live in a world of make-belie are prone to imagine things, even if they have not seen them; on account of fear or reward they can be made to depose false facts.”
It would also be relevant to quote Dr. Kenny Downing (Professor of Laws of England, Cambridge University) at page 386, in his book Outlines of Criminal Law.
“Children are a most untrustworthy class of witnesses, for when of a tender age as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and desire of notoriety.”
Bearing in mind the norms to be applied in evaluating the testimony of a child witness and also keeping in mind that being son of the deceased, Janardhan is a highly interested witness, we have to evaluate his testimony. After going through his testimony, we find that the same does not inspire confidence. He stated that the appellant Dattaram Gambhir assaulted his father the deceased Malu with an axe but, as seen earlier, no incised wound was found on the dead body of the deceased. We also find that in his statement, there is no mention about Tukaram and Laxmi receiving injuries during the course of the incident. On an overall evaluation of the testimony of Janardhan we are satisfied that it does not inspire confidence.
13. In our view, to confirm a sentence of life imprisonment of as many as seven persons on the testimony of three witnesses like Tukaram, Janardhan and Laxmi would betray a wholly casual and cavalier approach. We regret that we cannot accept their testimony as a safe basis for sustaining the conviction of the appellants. As the murder is brutal, the result is regrettable but, it cannot be helped, for Courts do not convict on the brutality of the prosecution case, but, on cogent reliable and unimpeachable evidence, and the same is pathetically wanting here.
14. If the ocular account is excluded, as it should be in view of the said infirmities, there remains no clinching evidence on the basis of which the convictions of the appellants can be sustained.
Mr. Behere, learned Additional Public Prosecutor vehemently contended that on the pointing out of the appellants, the very next day, of the incident, sticks were recovered and this is a strong piece of evidence which should weigh with us in sustaining the conviction of the appellants. We regret that we cannot accede to his contention. We have been taken through the recovery panchanama of the sticks by the learned counsel for the parties and we find in the same, there is no mention that the sticks had any marks of blood. That being so, evidence of recovery of sticks cannot constitute incriminating evidence against the appellants. It is common knowledge that in every household in villages, sticks are found. Consequently, we reject the aforesaid submission of Mr. Behere.
15. After taking an overall picture of the matter, we feel that the learned trial Judge has erred in convicting the appellants.
This is one of those rare cases where in spite of evidence of injured eye witnesses we are not able to sustain conviction. As said earlier, injured witnesses may have been present. But mere presence and the circumstance of their being injured is not good enough. We have to be satisfied that they are truthful witnesses. And this satisfaction, in view of the infirmities in their evidence, we cannot record. Hence, we are left with no other option but to give the appellants the benefit of doubt.
16. In the result, this appeal is allowed. The convictions and sentences of the appellants on various counts are set aside. They are given the benefit of doubt, and are acquitted. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.
17. Appeal allowed.