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PETITIONER: VITHAL AND OTHERS

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT03/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  1995 AIR 2337            JT 1995 (5)   673  1995 SCALE  (4)627

ACT:

HEADNOTE:

JUDGMENT:           JUDGMENT M.K.MUKHERJEE.J.      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

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    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

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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.