Ramrao Sakhare & Ors Vs. State of Maharashtra  INSC 531 (8 May 1997)
NANAVATI, S.P. KURDUKAR
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.
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:
(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.
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.
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.
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.
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).
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.
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 about9.30 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.
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 of Sarubai
(P.W.2) is concocted and unreliable but we seen substance in this contention.
Dr.Onkar Swami (P.W.3) who held the autopsy on thedead body of Appa noted 16 injuries on the dead
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 evidence of 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 could not be caused by one
High Courtin our considered view rightly held that the medical evidence
corroborates the evidence of Sarubai (P.W.2).
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).
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 group A which was
thesame blood group ofthe deceased. The blood group of A-1 is AB.
weapons like axes and asickle were claimed tohave been recovered at the
instance of appellants pursuant to the statement made under Section 27of the Evidence Act
butthis evidence was not accepted by the trial court and we do not proposeto
accept the same.
After going through the judgmentsof thecourts below we are satisfied that the
high Court was fully justified in reversing the order of acquittal passed by the
trial court as regards A-2 and A-3 . Thehigh Court was also right in up holding the conviction of A-1.
result there isno substance inthe criminal appeal and it is accordingly
dismissed. From the office reportdated 25th January,1997 it appears that the
appellants arein jail and, therefore, no further order in that behalf is called