Vithal
& Ors Vs. The State of Maharashtra [1995] INSC 359 (3 August 1995)
Mukherjee
M.K. (J) Mukherjee M.K. (J) Nanavati G.T. (J) M.K.Mukherjee.J.
CITATION:
1995 AIR 2337 JT 1995 (5) 673 1995 SCALE (4)627
ACT:
HEAD NOTE:
This
appeal is directed against the judgment and order dated June 25, 1984 passed by
the Bombay High Court in Criminal Appeal No. 286 of 1980 whereby it affirmed
the conviction and sentence recorded against the four appellants under Section
302/34 of the Indian Penal Code by the Sessions Judge, Bhandara.
According
to the prosecution case in the night between October 15/16, 1984 Antiram met
with his death at the hands of his sons by his first wife (appellant Nos. 1 and
2 herein) and two sons of her brother (the other two appellants). The motive
ascribed for the killing was that the deceased and his first wife, whom he had
deserted some 10/12 years back, were fighting for long over the ownership of
the house in which the murder took place.
In
proving the charges levelled against the appellants, the prosecution rested its
case principally upon the ocular version of the incident as given out by Bhivarabai
(P.W.21) the mother of the deceased and Suresh (PW 22), a son of the sister of Antiram,
who at the material time was 8 years old.
Though
the trial Court relied upon the evidence of both the witnesses to find the
appellants guilty, the High Court found it unsafe to rely upon the child
witness in view of obvious reservations in that regard and certain major
contradictions in his evidence vis-a-vis his statement recorded under Section
161 of the code of Criminal Procedure. The High Court, however, found PW 21 was
transparently honest and narrated the events in a truthful manner. In drawing
the above conclusion the High Court observed:- "She had the traumatic
experience of witnessing the macabre tragedy of her own grandsons to be jailed
for life more so when an average Indian elderly woman prizes sons over anything
else being the perpetuators of the family tree? The degree of cogency of evidence
contained in the deposition of Bhivarabai has reached to such a high degree of
probability that we unhesitatingly conclude that the learned Additional
Sessions Judge was right in finding the accused persons guilty of offence under
section 302 read with section 34 of the Indian Penal Code and sentencing them
to undergo imprisonment for life." At first blush we also felt that we
will not be justified, while exercising our jurisdiction under Article 136 of
the Constitution of India, in disturbing the concurrent findings of fact
recorded by the learned Courts below, more so for the reason canvassed by the
High Court in the above quoted passage, but having gone through the entire
materials on record we are firmly of the opinion that the evidence of PW 21
that she had properly seen the incident and correctly identified the appellants
as the miscreants cannot be safely relied upon. We do not for a moment suggest
that as a grand-mother she would falsely implicate her grandsons as observed by
the High Court but as our discussion to follow will show, her identification of
the appellants can justifiably be attributed to her optical aberrations.
In her
testimony PW 21 stated that after she, her son Antiram and grandson Suresh took
food together she and Suresh went to sleep in one room while Antiram went to
the adjoining chabari. According to her the door in between the room and the chapari
was closed from inside. She next stated that around mid-night she was awakened
by the sound of beating and therefore, she tried to open the door in between
the chapari and her room only to find that the door was chained from outside
also. However, she claimed, she could see all the four accused persons (the
appellants) beating his son Antiram with ubharies while she was seated on the
cot. She asserted that she could identify the appellants through the gap
between the two doors and not through the crevices of the planks. As regards
the source of light, she stated that the electric bulb of the street pole in
front of her house illuminated the chapari enabling her to see the incident and
identify the miscreants.
It
appears from the record that for properly appreciating the evidence of PW 21,
the trial Judge visited and inspected the locale, recorded a memorandum of the
relevant facts observed at such inspection (Ext. 32) and placed the same on
record in accordance with Section 310 of the Code of Criminal Procedure. In the
report the trial Judge recorded, inter alia, as under:
"The
door opening in the room from chapari closed from the side of the chapari by
means of the chain and seen from inside - The room into the chapari by myself,
A.P.P. Shri Raut and Shri Saxena Adv. for accd.- a) Nothing could be seen from
the gaping in between the 2 doors (shutters).
b) The
central pillar of the chapari and the gate (entrance) of the chapari is Visible
from the crevices in between the planks of both the shutters." (emphasis
supplied) From the above quoted passage of the report of inspection it is
evidently clear that PW 21 could not have seen the incident, much less identify
the miscreants in view of her categorical statement, as mentioned earlier, that
she saw through a gap between the two doors and not through the crevices of the
planks. This apart, the report nowhere indicates that the entire chapari was
visible through the crevices of the planks even if we proceed on the assumption
that she could see the incident through the crevices. On the contrary, the
report indicates only the pillar and gate of the chapari were visible.
Unfortunately, however, neither of the learned Courts below did give much
importance to this aspect of the matter and proceeded on the basis that it was
a minor mistake. We are however unable to share the above view as it is evident
from Ext.32 that P.W.21 could not have properly seen the incident much less,
identify the miscreants. Having regard to the fact that the success of the
prosecution rested upon the testimony of P.W. 21 alone we feel that the learned
Courts below ought not to have placed implicit reliance upon the evidence of PW
21 solely on the ground that as a grand-mother she was not expected to
implicate her grandsons falsely. Then again PW 21 has admitted in cross
examination that her eye sight was weakened and she could not properly see an
object beyond a distance of about one foot. As regard the source of light, the
trial Court has noticed that distance of the street pole on the road was at a
distance of 55 ft from the east corner of the central room of the house. In
that context it is difficult to hold that from the light emanating from the
street pole from such a distance it could be possible for P.W. 21 to see the
incident properly, more so when she had a defective vision.
On the
conclusions as above, it must be said that the prosecution has not been able to
prove its case against the appellants beyond all reasonable doubts. The order
of conviction and sentence recorded against the appellants is therefore set
aside and they are acquitted of the charge under Section 302 read with Section
34 of the Indian Penal Code. As the appellants are on bail, they are discharged
from their bail bonds.
Back
