have witnessed the incident of assault and deposed that both the
appellants beat deceased with the stick and thereafter, took him
towards the water tank and threw him in the pit which was near
the water tank, however, the subsequent conduct of this witness
rendered his testimony doubtful. As per the prosecution case
disclosed by Jaiwantabai (PW 3), she has seen the dead body of
her husband deceased Tukaram floating on the water of the tank
on 18.5.2001 and the medical evidence shows that the same was
highly decomposed. That means deceased Tukaram died a couple
of days prior to 18.5.2001 and though witness Sitaram was
resident of the same village and was also knowing the accused as
well as the deceased including Jaiwantabai, the widow of the
deceased; and though this witness Sitaram claimed to have
witnessed the incident which had taken place sometime prior to
18.5.2001, he did not disclose the incident to anybody including
the police till 23.5.2001 and for the first time, on 23.5.2001 he
disclosed the incident of assault to Jaiwantabai, widow of the
deceased and the statement of this witness was recorded by the
police on 26.5.2001. Avinash (PW 7), the investigating officer has
not given any reason or explanation for the inordinate delay
caused in recording the statement of this witness. Similarly, the
subsequent conduct of witness Sitaram (PW 5) in keeping mum
and failed to disclose the incident to anybody in the village for so
many days, in our view, is not only abnormal conduct but it also
creates serious doubt about the authenticity and truthfulness of
the testimony of this witness Sitaram (PW 5).
It is nodoubt true that, in the examination-in-chief of
witness Sitaram, it has come that appellant Ganesh warned
Sitaram not to disclose the incident to anybody. However, it is the
case of the prosecution disclosed by Jaiwantabai (PW 3) that
Sitaram in fact has told her about the incident on 23.5.2001. In
the facts and circumstances of the present case, it is, therefore,
difficult to hold that threats were given to witness Sitaram by
appellant Ganesh not to tell the incident to the people at large
were not all that serious, otherwise he would not have told the
incident till his statement was recorded by the police on
26.5.2001. Similarly, the inordinate and unexplained delay
caused in recording the statement of Sitaram, in our considered
view, in the instant case, is fatal to prosecution and renders the
testimony of this witness unreliable and untrustworthy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.98 OF 2003
Ganesh s/o. Godruji Uikey,
// VERSUS //
State of Maharashtra,
Date of pronouncing the Judgment : 21.8.2007.
Citation;2007 ALLMR(CRI)3076
CORAM : D.D.Sinha and
B.P.Dharmadhikari, JJ.
Citation;2007 ALLMR(CRI)3076
1. Heard Smt. Smita Deshpande, Adv. (appointed) for the
Appellants and Smt. S.S.Wandile, A.P.P. for the Respondent-State.
2. This Criminal appeal is directed against the judgment
and order passed by the 2
nd Ad-hoc Assistant Sessions Judge,
Nagpur dt. 1.10.2002 in Sessions Trial No.31 of 2002 whereby
both the appellants were convicted for the offence punishable u/s.
302 r/w. Section 34 of the Indian Penal Code and were sentenced
to suffer rigorous imprisonment for life. Both the appellants were
also convicted for the offence punishable u/s. 201 r/w. Section 34
of the Indian Penal Code and were sentenced to suffer rigorous
imprisonment for one year and fine of Rs. 500/- each was
imposed on them, in default to suffer rigorous imprisonment for
three months.
2A. The prosecution case, in the nutshell, is as follows :
On 18.5.2001, at about 11.00 A.M., Yeshwantrao
Punyaji Uike (PW 1) (brother of the deceased) lodged report in
the Police Station, Narkhed that dead body of his brother
Tukaram (deceased) was noticed floating on the water of the tank
of village Gowargondi. On the basis of the said report, A.D. was
registered and investigation was commenced. Investigating
Officer prepared spot panchanama and inquest panchanama in
presence of panchas. The dead body was forwarded for post
mortem examination. Wife of the deceased Tukaram namely
Jaiwantabai wd/o. Tukaram Uike (PW 3) lodged report in the
Police Station on 26.5.2001, which was reduced into writing,
wherein she had alleged that her husband Tukaram used to do the
work of illegal distillation of liquor with the appellants and on
occasions, used to work continuously for 2 to 3 days without
returning home. Fifteen days prior to the incident, appellant
Ganesh Uike met the complainant Jaiwantabai (PW 3) and asked
her husband deceased Tukaram to accompany him for doing the
work of distillation of liquor. Complainant Jaiwantabai prevented
him from going with appellant Ganesh and also told appellant
Ganesh that her husband would not do the work of illegal
distillation of liquor. At that time, appellant Ganesh threatened
her.
3. It is the case of the prosecution that, on 12.5.2001,
complainant Jaiwantabai went to attend the marriage of her
maternal brother along with her son Shrikrishna. Her daughter
and husband Tukaram were in the house. She came back from
marriage on 16.5.2001. Deceased Tukaram was not present in the
house. She made inquiry with her child and came to know that
her husband did not come back home since last Tuesday. She
made efforts to trace him. However, her efforts did not yield any
fruits. On 18.5.2001, at about 11.00 A.M., she was in her own
house. Mahadeo s/o. Laxman Uike (PW 4) came to her house and
informed her that dead body of her husband Tukaram was
floating on the water of the tank. She went along with brother of
her deceased husband and saw that dead body of her husband
was floating on the water of the tank. She identified the dead
body as that of her husband.
4. It is the case of prosecution that, on 23.5.2001, Sitaram
Sakruji Kokarde (PW 5) visited the complainant and told her that
on last Tuesday the appellants beat Tukaram on account of theft
of liquor. The complainant was also informed that both the
appellants beat Tukaram and after beating him, they threw him
in the tank. The complainant was also informed by Sitaram that
her husband, at the relevant time, had consumed alcohol.
Jaiwantabai went to the Police Station and lodged report on
26.5.2001. On the basis thereof, offence u/s. 302 of the Indian
Penal Code came to be registered against the appellant and the
Investigating Officer, on completion of formal investigation, filed
charge sheet in the Court. The trial Court framed charge against
the appellants for the offence punishable u/s. 302 r/w. Section 34
of the Indian Penal Code as well as under Section 201 r/w.
Section 34 of the Indian Penal Code. Same was explained to
them, to which both of them pleaded not guilty and claimed to be
tried.
5. Smt. Smita Deshpande, Counsel for the appellants has
contended that, in the instant case, the brother of the deceased
namely Yeshwant (PW 1), who lodged the First Information
Report (Exh.18), on the basis thereof A.D. came to be registered,
did not support prosecution and therefore, was declared hostile.
Similarly, Mahadeo (PW 4) (nephew of the deceased) also failed
to support prosecution in the Court and was, therefore, declared
hostile. Counsel for the appellants further contended that, though
prosecution has examined Munna Ramkripal Mishra (PW 6) for
the purpose of proving memorandum (Exh.28) u/s. 27 of the
Evidence Act as well as seizure panchanama (Exh.29), however,
the articles discovered i.e. stick and dupatta did not have human
blood and therefore, the evidence of Munna (PW 6) does not
further the case of prosecution.
6. Counsel for the appellants has contended that the entire
case of prosecution rests on the evidence of Sitaram (PW 5)
(solitary eye witness) as well as evidence of Jaiwantabai (PW 3).
The evidence of other witnesses i.e. Asuraj Shankarrao Bagade
(PW2) (panch on the spot panchanama) and Avinash Vishnupant
Karmarkar (PW 7) (Investigating Officer) is of formal nature.
Similarly, the medical evidence is also of no help to prosecution
since, due to decomposition, the doctor could not notice any
injury nor could give his opinion regarding cause of death.
7. Learned counsel for the appellants further contended
that though Sitaram (PW 5) claimed to have witnessed the
incident of assault alleged to have been committed by the
appellants on the deceased by stick, however, the evidence of this
witness suffers from omissions which are of material nature,
which renders the testimony of this witness doubtful. Similarly,
this witness has deposed that appellant Ganesh, at the relevant
time, asked deceased to lift bundle of Mhowra flowers and since
the deceased could not lift it, accused beat the deceased as well as
this witness Sitaram with the stick. It is contended that this
witness Sitaram has not specifically attributed any overt act to the
appellant no.2 Naresh, though there is a general statement made
in the deposition that both the accused beat the deceased with the
stick. It is, therefore, contended that the testimony of this witness
is not cogent and is also not corroborated by the medical evidence
and therefore, the conviction of the appellants based on the
unreliable testimony of solitary eye witness which is without
corroboration is liable to be set aside.
8. Counsel for the appellants further contended that the
evidence of Jaiwantabai (PW 3) is also doubtful on account of
delay in lodging report in the Police Station and therefore, the
same is also liable to be rejected.
9. Smt. S.S.Wandile, Additional Public Prosecutor for the
Respondent-State, on the other hand, has contended that the
evidence of eye witness Sitaram (PW 5) coupled with the
evidence of Jaiwantabai (PW 3) as well as other attaining
circumstances brought on record by the prosecution prove the
charge of murder against the appellants and therefore, the
conviction awarded by the trial Court for the offence punishable
u/s. 302 of the Indian Penal Code with the aid of Section 34 of
the Indian Penal Code is sustainable in law.
10. The Additional Public Prosecutor has further contended
that the evidence of eye witness Sitaram (PW 5) clearly shows
that both the accused beat deceased with the stick; after beating,
they tied deceased Tukaram by cloth (dupatta), took him towards
the water tank and threw him in the pit which was on the bank of
the tank. It is contended that this witness has deposed that, after
the incident appellant Ganesh came to this witness and
threatened him with dire consequences if he would disclose the
incident to anybody and therefore, this witness did not disclose
the incident to anybody except the wife of deceased namely
Jaiwantabai on 23.5.2001. It is contended that the admission in
the cross-examination of Sitaram reaffirms the case of prosecution
and therefore, the testimony of this witness coupled with the
evidence of Jaiwantabai (PW 3) as well as the Post Mortem report
proves the case of prosecution against the appellants for the
offences charged.
11. We have given our anxious thought to the various
contentions canvassed by the respective counsel. Scrutinized the
evidence of prosecution. In the instant case, the entire prosecution
case is based on the testimony of Sitaram (PW 5) (eye witness)
and Jaiwantabai (PW 3) since the evidence of Yeshwant (PW 1)
(who lodged the First Information Report (Exh.18), PW 2 Asuraj
(panch on spot), PW 4 Mahadeo and PW 7 Avinash (Police
Inspector) is of formal nature and they also did not support the
prosecution. Similarly, so far as discovery is concerned, the
evidence of Munna (PW 6) does not further the case of the
prosecution since the articles discovered i.e. sticks and dupatta
did not have any blood stains on it and were commonly found
with the villagers. Similarly, the medical evidence only shows
that the cause of death of the deceased was due to drowning
which does not lend any corroboration to the material particulars
of the prosecution case.
12. Sitaram Sakruji Kokarde (PW 5) though claimed to
have witnessed the incident of assault and deposed that both the
appellants beat deceased with the stick and thereafter, took him
towards the water tank and threw him in the pit which was near
the water tank, however, the subsequent conduct of this witness
rendered his testimony doubtful. As per the prosecution case
disclosed by Jaiwantabai (PW 3), she has seen the dead body of
her husband deceased Tukaram floating on the water of the tank
on 18.5.2001 and the medical evidence shows that the same was
highly decomposed. That means deceased Tukaram died a couple
of days prior to 18.5.2001 and though witness Sitaram was
resident of the same village and was also knowing the accused as
well as the deceased including Jaiwantabai, the widow of the
deceased; and though this witness Sitaram claimed to have
witnessed the incident which had taken place sometime prior to
18.5.2001, he did not disclose the incident to anybody including
the police till 23.5.2001 and for the first time, on 23.5.2001 he
disclosed the incident of assault to Jaiwantabai, widow of the
deceased and the statement of this witness was recorded by the
police on 26.5.2001. Avinash (PW 7), the investigating officer has
not given any reason or explanation for the inordinate delay
caused in recording the statement of this witness. Similarly, the
subsequent conduct of witness Sitaram (PW 5) in keeping mum
and failed to disclose the incident to anybody in the village for so
many days, in our view, is not only abnormal conduct but it also
creates serious doubt about the authenticity and truthfulness of
the testimony of this witness Sitaram (PW 5).
13. It is nodoubt true that, in the examination-in-chief of
witness Sitaram, it has come that appellant Ganesh warned
Sitaram not to disclose the incident to anybody. However, it is the
case of the prosecution disclosed by Jaiwantabai (PW 3) that
Sitaram in fact has told her about the incident on 23.5.2001. In
the facts and circumstances of the present case, it is, therefore,
difficult to hold that threats were given to witness Sitaram by
appellant Ganesh not to tell the incident to the people at large
were not all that serious, otherwise he would not have told the
incident till his statement was recorded by the police on
26.5.2001. Similarly, the inordinate and unexplained delay
caused in recording the statement of Sitaram, in our considered
view, in the instant case, is fatal to prosecution and renders the
testimony of this witness unreliable and untrustworthy.
14. Similar is the case with the testimony of Jaiwantabai
(PW 3). It has come in her evidence that, when she came back to
her house after attaining the marriage on 16.5.2001, she came to
know that her husband deceased Tukaram did not come home
from his work. On 18.5.2001 Jaiwantabai came to know that dead
body of her husband was floating on the water of the tank and
therefore, she went to the tank and identified the dead body of
her husband which was floating on the tank. Even then, she did
not go to the Police Station to lodge the report. It is the case of
prosecution that witness Sitaram told Jaiwantabai (PW 3) on
23.5.2001 that the appellants assaulted her husband Tukaram and
after the assault, carried him towards the water tank and threw
him in the pit which was on the bank of the tank. Even then,
Jaiwantabai did not go to the Police Station for lodging report and
for the first time, lodged the report in the Police Station on
26.5.2001. The entire conduct of Jaiwantabai in not lodging the
report immediately or atleast on 23.5.2001 when she came to
know about the occurrence creates serious doubt about
authenticity of the testimony of this witness. Jaiwantabai who is
widow of deceased Tukaram was expected to approach the police
forthwith atleast on 23.5.2001 when she came to know that the
appellants have murdered her husband Tukaram. However, her
conduct in not approaching the police till 26.5.2001, in our view,
is not only abnormal, but it renders her testimony unreliable as
well as doubtful.
15. In the instant case, the story of assault disclosed by the
alleged eye witness Sitaram is not corroborated by the medical
evidence since the cause of death of the deceased given by the
doctor was drowning and because of decomposition, the Medical
Officer could not give any opinion about the injuries, if any
sustained by the deceased. It is, therefore, evident that the
evidence of eye witness Sitaram, which is also not free from doubt
as well as the evidence of Jaiwantabai, which also suffers from the
same vice, as well as same is also not corroborated by the medical
evidence, therefore, in our considered view, prosecution has failed
to prove the charge of murder against the appellants beyond all
reasonable doubts. The evidence of other prosecution witnesses
such as Yeshwant (PW 1) and Mahadeo (PW 4) is of no
consequence since both these witnesses have turned hostile and
nothing worthwhile has been brought in their cross-examination
by the Additional Public Prosecutor. Similarly, the evidence of
Asuraj (PW2) (panch on spot), Munna (PW 6) (panch on
discovery) and Avinash (PW 7) (Investigating Officer) is
hopelessly inadequate to bring home the guilt of the appellants.
16. For the reasons stated hereinabove, the appeal is
allowed. The impugned judgment and order dt. 1.10.2002 passed
by the 2
nd Ad-hoc Assistant Sessions Judge, Nagpur is hereby
quashed and set aside. Appellants are acquitted by giving benefit
of doubt. They be released, if not required in any other criminal
case.
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