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PETITIONER: DATTU RAMRAO SAKHARE AND ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       08/05/1997

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: Present:      Hon‘ble 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.      The 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: (2)  Appa (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

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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. (3)  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. (4)  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. (5)  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. (6)  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

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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). (7)  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. Sarubai(P.W.2) 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 about 9.30 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. (8)  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

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Appa. Althoughit was contended on behalf of the appellants that the  evidence  ofSarubai (P.W.2)  is  concocted and unreliable butwe seeno substance inthis contention. Dr. Onkar Swami (P.W.3) whoheld the autopsy on thedead body of Appa noted  16 injuries on thedead 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 evidenceof 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 couldnot be caused by one person. The High  Courtin our considered view rightly held that the medical evidence   corroborates  the  evidence of  Sarubai (P.W.2). (9)  Inaddition  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). Dhoti 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 groupA whichwas thesame blood group  ofthe  deceased. The blood group of A-1 is AB. This weapons  like axes and asickle were  claimed tohave been recovered at the instance of appellants pursuant to the statement made under Section 27of the EvidenceAct butthis evidence was  not accepted  by the trial court and we do not proposeto accept the same. (10) After going  through the judgmentsof thecourts below we are satisfied that the high Court  was fullyjustified in reversing theorder of acquittal passed by the trial court as regards  A-2and  A-3 .  Thehigh Court was also right in upholding the conviction of A-1. (11) Inthe   result  there isno substance inthe criminal appeal and  it is  accordingly dismissed.  From the  office reportdated25th  January,1997  it  appears  that the appellants arein jail and, therefore, no further order in that behalf is called for.