Judgment:
Vishnu Sahai, J.
1. Through this appeal, the appellants challenge the judgment and order dated 29-1-1997 passed by the IIIrd Additional Sessions Judge, Kolhapur in Sessions Case No. 100 of 1996 whereby they have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- each, in default to undergo three months R.I. for the offence punishable under section 302 r/w 34 I.P.C.
It is pertinent to mention that along with the appellants was tried co-accused Sou. Akkatai Parasharam Siddha but, she has been acquitted vide the impugned judgment and the State of Maharashtra has not challenged her acquittal by preferring an appeal under section 378(1) Cri.P.C.
2. In short, the prosecution case runs as under :---
The informant Bhagubai Siddha P.W. 1 is the mother of the appellant Parasharam Siddha and grand mother of the appellant Bhikaji Siddha. She is the mother-in-law of the acquitted accused Sou. Akkatai Siddha. The deceased Dhanaji Bandoba Burungale was her son-in-law. From 20 years, prior to the incident, the informant Bhagubai was residing with her daughter and son in law Dhanaji in Pune because, the appellants were not permitting her to reside in her house at Jyotiba Dongar which she had inherited from her father.
At the time of the incident, the appellants and Akkatai were residing jointly at Jyotiba Dongar. They did not allow the informant to stay in the house and did not provide anything for her sustainance. Consequently, she executed a registered sale deed in respect of the said house and open space which was behind it in favour of Dhanaji, about five to six months before the incident.
Sometimes in May 1995 Dhanaji told the informant that he would make construction on the open space which was behind the house. Consequently, the informant and Dhanaji came to Jyotiba Dongar on 15-5-95. The same day Dhanaji went back to Pune to bring some money while she stayed back at the house. Dhanaji returned next morning (morning of 16-5-1995) at 9 a.m. with the cash. He thereafter, went in the open space. Thereafter, the appellants came and removed the wooden planks and the iron rods from the door of the house. Thereafter, along with the said iron rods, they went towards the open space. At that juncture, the appellant Bhikaji told the informant that either side would be murdered. Then, the appellants started assaulting Dhanaji with iron rods. In the meantime, the informant came out in the open space and started crying loudly. At that time the acquitted accused Akkatai also came there caught hold of her and pushed her down resulting in her falling down. The informant saw the appellants assaulting Dhanaji with iron rods on head, legs, shoulders etc. Co accused Akkatai gagged her mouth in order to thwart her bid to cry.
It is alleged that apart from the informant, this incident was seen by her neighbours Shankar Katkar P.W. 6, Sou Kisabai Katkar P.W. 7 and Sonabai Chatre P.W. 8.
After assaulting Dhanaji, the appellants and Akkatai are said to have left. Thereafter, the informant went near Dhanaji and saw him precariously injured. Persons who had assembled there brought a gunny bag and on the same Dhanaji was taken to the informant's house. Police Patil Balkrishan Bitake P.W. 10 was informed. He immediately came to the house of the informant and the latter narrated to him the incident. He immediately arranged for a motor vehicle and on the same, he and the informant along with Dhanaji proceeded to CPR Hospital. On way, the Police Patil informed Kodoli Police Station that the appellants had assaulted Dhanaji. On reaching CPR Hospital, the doctor pronounced that he was dead.
3. The evidence of PHC Maruti Shevale P.W. 18 shows that on 16-5-1995 he was deputed on duty at CPR Police Chowky from 8 a.m. to 11 p.m. and at about 11.50 a.m. the Medical Officer of CPR Hospital, Kolhapur informed in writing about the corpse of Dhanaji being brought to the hospital. Consequently, same day, he recorded the FIR of Bhagubai Siddha P.W. 1 (Evidence of Bhagubai shows that the FIR was recorded at 2 p.m.)
The evidence of ASI Maruti Koli P.W. 12 shows that at 7.15 p.m. same day he received the FIR of Bhagubai and registered on its basis C.R. No. 29 of 1995 under section 302 r/w 34 IPC.
4. The autopsy on the corpse of the deceased Dhanaji was conducted on 16-5-1995, between 1.15 to 1.30 p.m., by Dr. Janardhan Bansode P.W. 15 who found on it the following ante-mortem injuries:-
'1. CLW 3' x 1' x 1' size, left forehead bone deep fracture of skull.
2. CLW having the size of 2 x ' on left parietal region. Fracture to skull oblique.
3. CLW 1' x ' x ' right lower 3rd hand with fracture radius ulna.
4. Fracture humorous shaft right side.
5. CLW 4' x 3' x 1' fracture radius ulna, middle third left side.
6. Incised wound 2' x ' with fracture tibia fibula right upper 1/3rd.
7. Fracture ribs over 4th, 5th and 6th haemothorax left side.'
On internal examination, Dr. Bansode found fractures of left frontal bone and left parietal bone. He also found fracture of 4th, 5th and 6th ribs on the left side haemothorax and laceration of middle lobe of left lung.
In the opinion of Dr. Bansode, Dhanaji died on account of shock, due to Crania cerebral injury with left haemothorax and the said injures were attributable to iron rods shown to him (Article Nos. 9 and 10) and were sufficient in the ordinary course of nature to cause death.
5. The investigation was conducted in the usual manner. The bulk of it was performed by PSI Rajaram Patil P.W. 20. On 30-5-1995, he arrested the appellants and seized the blood stained clothes which they were putting on their person in the presence of public panch Balasaheb Khamkar P.W. 11.
From the person of the appellant Parasharam Sidda, a blood stained dhoti, blood stained cotton shirt and blood stained tricot cotton cap were seized.
From the person of the appellant Bhikaji, a full pant which was blood stained and tricot open shirt which was also blood stained were seized.
After completing the investigation, PSI Patil submitted the charge sheet against the appellants and the acquitted accused Akkatai Siddha on 25-8-1995.
6. The case was committed to the Court of Sessions in the usual manner where the appellants and the acquitted accused were charged for the offence punishable under section 320 r/w 34 I.P.C. to which charge, they pleaded not guilty and claimed to be tried.
During trial, in all the prosecution examined 20 witnesses. Four of them namely Bhagubai Siddha P.W. 1, Shankar Katkar P.W. 6, Sou Kisabai Katkar P.W. 7 and Sou Sonabai Chatre P.W. 8 were examined as eye witnesses. It is pertinent to mention that the last three witnesses turned hostile and when confronted during cross-examination with those portions of their statement under section 161 Cri.P.C. wherein they had given ocular account, disowned having made them.
In addition to the ocular account, the prosecution through PSI Rajaram Patil P.W. 20 and public panch Balasaheb Khamkar P.W. 11 proved that blood stained clothes were recovered from the appellants.
The learned Judge felt that there was sufficient evidence against the appellants and consequently convicted and sentenced them in the manner stated in para 1 above, but, however acquitted co-accused Akkatai.
Hence, this appeal.
7. We have heard Mr. B.R. Patil, learned Additional Public Prosecutor for the respondent and gone through the entire evidence and the impugned judgment. No one appeared for the appellants because, Mr. A.Y. Sakhare, their learned Counsel was elevated to the Bench and thereafter notice was sent to them to engage another Counsel but, they did not engage any.
After considering the entire material on record, we are of the judgment that this appeal deserves to be allowed.
The conviction of the appellants is primarily based on the ocular account furnished by the informant Bhagubai Siddha P.W. 1. In addition, the prosecution has furnished circumstantial evidence in the form of recovery of the blood stained clothes from the person of the appellants on their arrest on 30-5-1995.
We now, propose examining the said evidence.
8. We begin with the ocular account furnished by Bhagubai Siddha P.W. 1. As mentioned in para 2, she is the mother of the appellant Parasharam Siddha and grand mother of the appellant Bhikaji Siddha. Her evidence shows that the said appellants along with Sou. Akkatai (wife of the appellant Parasharam Siddha) stayed at Jyotiba Dongar in the house which she had inherited from her father and she stayed with her son-in-law Dhanaji and her daughter at Pune. Her evidence also shows that the appellants did not provide anything for her sustainance. She deposed that about five to six months prior to the incident, she had executed a registered sale deed of the said house and the open space behind it in favour of Dhanaji and in the month of May, 1995, Dhanaji told her that he wanted to make some constructions in the said open space. Consequently, she along with him came to Jyotiba Dongar on 15-5-95. Dhanaji left for Pune to get some cash but she stayed at her house. Next morning (morning of 16-5-1995) at about 9 a.m. he came back with cash and went in the open space behind the house. At that juncture, the appellants removed the wooden planks of the door of the house and the iron rods from the door. Thereafter, with the said iron rods, they went in the open space behind the house and started belabouring Dhanaji with them. When she came in the open space, co-accused Akkatai also came; caught hold of her; pushed her on the ground and gagged her mouth to thwart her bid to raise cries. She saw the appellants with iron rods assaulting Dhanaji on head, legs, shoulders etc. and thereafter went away.
9. We have examined the said version of Bhagubai and we are constrained to observe that we find it hazardous to accept her evidence. We say this inspite of our first reaction that being the mother of the appellant Parsharam and grand mother of the appellant Bhikaji, it was normally not expected that she would have falsely implicated the said appellants. But, to every rule there is an exception and we dare say here is a case wherein it appears that a mother has falsely implicated her son and grand son. From her cross examination, it is crystal clear that there is no love lost between her and the appellants. We say this because, in her cross examination, she stated that during the period of last 20 years, the appellant Parasharam, had only once visited her. We also say this because she stated that the appellants were not providing anything to her for her maintenance. In our view, it was this which weighed with her to live with her daughter and son in law, something which a Hindu woman would do as a last resort. In our view, since the appellants were not providing anything for her maintenance, she must have been sore with them.
Since there is no getting away from the fact that relations between her and the appellants were strained, her evidence has to be approached with caution and we dare say that if this is done, it cannot be accepted for the reasons enumerated hereinafter.
Firstly, she candidly and categorically stated that the two appellants assaulted the deceased with iron rods. We have earlier referred to the ante-mortem injuries suffered by the deceased and seen that Injury No. 6 sustained by the deceased was a incised wound 2' x ' with fracture of tibia and fibula of right upper third. It is pertinent to mention that although the Autopsy Surgeon Dr. Bansode P.W. 15 in his examination-in-chief stated that all the ante-mortem injuries suffered by the deceased could be caused by iron rods but, in his cross-examination, he categorically stated that it is true that Injury No. 6 in column No. 17 of the post mortem notes is an incised wound. Such incised wound could not be caused due to beating by iron rods like Articles Nos. 9 and 10.'
We agree with this opinion of Dr. Bansode. In our view, the circumstance that the deceased sustained the said incised wound clearly belies' the claim of Bhagubai of having seen the incident. Her evidence, does not explain how the deceased sustained it.
Secondly, Bhagubai in her cross-examination (in para 19) stated that on account of being pushed by the acquitted accused - Akkatai, she had sustained injuries from which blood was coming out and which resulted in stains of blood on her clothes. However, in the same para she admitted that she did not show those injuries either to the police or to the doctors in the hospital at Kolhapur, and nor were her clothes seized by the police. In our view, had she sustained injuries, she would have got them examined in the hospital. More so, when she had accompanied Dhanaji to CPR Hospital and was in the hospital. We also feel that had her clothes been stained with blood. PHC Maruti Shevale who recorded her F.I.R. at 2 p.m. in CPR Hospital, would have attached her clothes. In our view, absence of her medical examination and absence and seizure of her blood stained clothes grievously erodes her credibility.
Thirdly, we find that she has no compunction in falsely implicating co-accused Akkatai, wife of the appellant-Parasharam. It is pertinent to mention that in the F.I.R., she has not named her and has named her for the first time in her statement recorded under section 161 Cr.P.C. If she had no compunction in falsely implication her, there is no guarantee that she has not falsely implicated the appellants.
Fourthly, there are certain omissions which render it unsafe to accept her evidence. According to the prosecution, the appellants assaulted the deceased with iron rods which they had removed from the wooden planks of the door immediately before the incident. But, we find that in the F.I.R. lodged by Bhagubai, there is no mention about their removal. When she was confronted with the said omission, she stated that she had informed the police about this fact at the time of lodging of the F.I.R. but, we are not prepared to accept this claim of hers. Again in the F.I.R., there is omission about Akkatai's name and about Akkatai pushing her and gagging her mouth. When she was confronted with the said omission, she gave the answer referred to earlier but, we are not prepared to believe her. In our view, the said omissions are vital and amount to contradictions.
Fifthly, we are completely at our wit's end that if the incident really happened in the manner as alleged by Bhagubai, then why the other eye witnesses of the incident namely Shankar Katkar P.W. 6, Kisabai Katkar P.W. 7 and Sonabai Chatre P.W. 8 who resided in the immediate vicinity did not depose about it and turned hostile. It is also pertinent to mention that Bhagubai in her cross examination has admitted that near the place of the incident were shops of different persons. In our view, had the incident taken place at 9 a.m. on 16-5-1995, as alleged by the prosecution, why is it that no shop keepers or someone residing in the vicinity of the place of the incident is coming forth to support Bhagubai's version.
10. It is true that there is no impediment in law in recording/sustaining a conviction on the testimony of a solitary eye - witness because, section 134 of the Indian Evidence Act provides that 'No particular number of witnesses shall in any case be required for the proof of any fact'. But, the time - honoured rule is that the evidence of a solitary witness must be implicitly reliable before it can be the sole basis for conviction.
For the reasons mentioned earlier, in our view, the evidence of Bhagubai cannot be classified in that category. Consequently, we feel that it would not be safe to sustain the conviction of the appellants on her testimony.
11. We also find it difficult to place reliance on the circumstantial evidence adduced by the prosecution. As mentioned earlier, the appellants were arrested on 30-5-1995 and were brought to the police station with blood stained clothes on their person which were seized under a panchanama by the Investigating Officer Rajaram Patil P.W. 20 in the presence of public panch Balasahab Khamkar P.W. 11. This recovery is not in consonance with probabilities.
It is pertinent to mention that the incident took place on 16-5-1995 at 9 a.m. and we find it difficult to believe that after a period of 14 days i.e. on 30-5-1995, the appellants were moving putting on blood stained clothes. This act of the appellants can only be reconciled with the hypothesis that they were inviting the police to arrest them. Such a inference is incompatible with probabilities.
It should be borne in mind that the golden rule in criminal cases is to prefer the probable to the possible. If the said rule is borne in mind the said circumstance cannot be accepted.
At any rate, the aforesaid circumstance would only create at the highest, a strong suspicion against the appellants and since we have rejected the ocular account furnished by Bhagubai and there is no other evidence connecting the appellants with the crime, the appellants cannot be convicted on a strong suspicion simplicitor because, as Gajendragadkar, J., as he then was, in para 9 of the oft - quoted case of Sarwan Singh Rattan Singh v. State of Punjab, : 1957CriLJ1014 observed 'suspicions' however strong cannot take the place of proof'.
12. In the result, this appeal is allowed. We set aside the conviction and sentence of the appellants for the offence under section 302 r/w 34 I.P.C. and acquit them thereunder. We direct that in case they have paid fine, it shall stand refunded to them.
The appellant-Parasharam Vishnu Siddha is in jail and shall be released forthwith unless wanted in some other case. The appellant - Bhikaji Parasharam Siddha is on bail. His bail bonds shall stand cancelled and sureties discharged.