Baliram vs State of Maharashtra

A.B. Chaudhari, J—Being aggrieved by the Judgment and Order dated 19th April, 2000, passed by learned Sessions Judge, Akola, in Sessions Trial No. 85 of 1999, by which the appellant -Accused No. 1 -Baliram was convicted of offence punishable under Section 304 Part II of Indian Penal Code, and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 500/-, in default, further Rigorous Imprisonment for two months, the present appeal was filed by the appellant -Accused No. 1 -Baliram.

Facts :

Briefly stated, it is the case of the prosecution that Vatsala wife of Shriram Sushir [PW 1], her deceased husband -Shriram Kisan Sushir and one of their daughters Ujwala [PW 3] were residing at village Belkhed and they had undertaken construction of a courtyard wall.

On 7th February, 1999 at about 1700 hours, when they were busy in constructing the wall, the appellant-accused came there, started abusing them, asked them to stop the work and to remove the bricks towards the road. Deceased Shriram then told that the bricks 3 and everything would be cleared after completion of construction of wall; but the appellant abused him and when he was on his back side, appellant -Accused No. 1 -Baliram hit one brick from the back side of the head, i.e., on the parietal region above right ear, due to which Shriram fell down and suffered a crick fracture of the skull. Vatsala [PW 1] took him to Hiwarkhed Police Station by an auto rickshaw and thereafter he was sent for medical examination. While undergoing treatment, on 9th February, 1999, Shriram died. An offence was registered and thereafter investigation was completed and charge-sheet was filed. The trial was held. The Trial Court finally convicted the appellant of the offence of culpable homicide not amounting to murder and held him guilty of offence under Section 304 Part II, Indian Penal Code.

In support of the appeal, learned Adv. Mr. S.R. Deshpande vehemently argued that the learned Trial Judge disbelieved the evidence of Ujwala [PW 3], the daughter of the deceased and believed the evidence of Vatsala [PW 1]. According to him, the reasons for disbelieving Ujwala [PW 3] ought to have been applied for disbelieving Vatsala [PW 1] and, therefore, it was wrong to believe the testimony of Vatsala [PW 1]. He further argued that the prosecution case ultimately rests on the single testimony of Vatsala [PW 1], i.e., the widow of the deceased, who, being the interested and related witness to the deceased, could not be believed and her evidence was required to be rejected. Mr. Deshpande then submitted that the prosecution case was liable to be rejected on other reason also, namely that the neighbours had gathered on the spot and no independent neighbour was examined to prove the case of the prosecution, instead of relying on the version of interested witness. The prosecution must be blamed for not examining independent witnesses and in that case the benefit of doubt should have been given to the appellant. At any rate, according to Mr. Deshpande, the evidence of Vatsala [PW 1] clearly shows material improvement in her evidence, namely that she deposed that blood started oozing from the mouth and nose of her husband Shriram, which was an important omission in the FIR as well as police statement dated 11th February, 1999, apart from the fact that her statement was recorded so late for which the prosecution did not offer any explanation. Mr. Deshpande then submitted that the Trial Court did not consider the legal position regarding appreciation of evidence of interested witness as pronounced in number of judgments. To substantiate his arguments, learned Adv. Mr. Deshpande relied on the following judgments:-

[a] Mohamed Sugal Esa Mamasan Rer, Alalah vs. The King50 CWN 98 (Privy Council) ,

[b] Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614 : (1957) CriLJ 1000 : (1957) 1 SCR 981 ,

[c] Anil Phukan Vs. State of Assam, AIR 1993 SC 1462 : (1993) CriLJ 1796 : (1993) 1 Crimes 1180 : (1993) 2 JT 290 : (1993) 2 SCALE 88 : (1993) 3 SCC 282 : (1993) 2 SCR 389 ,

[d] Lallu Manjhi and Another Vs. State of Jharkhand, AIR 2003 SC 854 : (2003) CriLJ 914 : (2003) 1 JT 1 : (2003) 1 SCALE 14 : (2003) 2 SCC 401 : (2003) 1 SCR 1 : (2003) AIRSCW 308 : (2003) 1 Supreme 146 ,

[e] Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, AIR 2012 SC 1292 : (2012) CriLJ 1991 : (2012) 3 JCC 1714 : (2012) 3 SCALE 414 : (2012) 4 SCC 722 : (2012) AIRSCW 1994 , and

[f] State of Jharkhand Vs. Janeshwar Paswan & others [Death Reference No. 2 of 2012, decided on 13th September, 2012 by Jharkhand High Court (Coram D.N. Patel and Prashant Kumar, JJ.].

Finally, Mr. Deshpande prayed for setting aside the conviction.

Per contra, learned APP supported the impugned Judgment and Order and submitted that there is no rule as such that the evidence of interested witness should be rejected. The evidence of Vatsala [PW 1] inspires confidence. Her evidence is consistent with what she stated in the FIR which fully corroborated her testimony. The FIR was immediately lodged with the Police Station without any scope for manipulation. No previous enmity has been pleaded by the appellant-accused against her. The Trial Judge, in fact, sentenced him only for a period of three years, when, as a matter of fact, by his act, the appellant caused death of Shriram, even though out of anger, he had hit the brick on his head, resulting into internal bleeding and a fracture of the skull. He, therefore, prayed for dismissal of the appeal.

CONSIDERATION :

I have perused the impugned Judgment and Order, so also the reasons recorded by the learned Trial Judge. With the assistance of the learned counsel for the parties, I have perused the entire evidence in this case. I have carefully perused the dictum laid down by the Courts n various decisions cited by Mr. Deshpande, learned counsel for the appellant. It is not necessary for me to refer to those decisions, because there can be no dispute or quarrel about the propositions stated in these decisions. The law is well settled that a conviction can be based on the evidence of a single testimony and that the evidence of interested witness should be circumspected before accepting the same with caution. Thus, the Court is required to adopt caution while examining the evidence of the interested witness. Keeping in mind the said principle, I proceed further.

It is true that the learned Trial Judge for some reasons rejected the testimony of Ujwala [PW 3], the minor daughter of the deceased. But then, that by itself is not enough to reject the testimony of PW 1 Vatsalabai and her testimony will have to be assessed independently and given due weight only thereafter. I have seen her entire testimony, including the cross-examination carefully and with caution. Relevant portion of her Examination-in-Chief from her evidence is reproduced for convenience, which reads thus:-

"3. When myself and my husband Shriram were putting earth near the wall at that time accused no.1 Baliram and accused No. 2 Vitthal came near to us. At that time accused No. 2 Vitthal and accused no.1 Baliram told us that we should not keep bricks and earth to that side. Thereafter I told that we would keep bricks and earth till the completion of the wall and thereafter we would clear that place. At that juncture accused no.1 Baliram told that he would allow to all persons except us. When accused nos. 1 and 2 were talking to us at that time myself and my husband Shriram were filling earth in Ghamelas (Iron vessel). Myself took Ghamela filled with earth. My husband Shriram lifted filled Ghamela and turned to throw earth of filled Ghamela, at that time accused no.1 Baliram hit one brick which he was holding, on the rear side of the head of my husband Shriram. Therefore, my husband Shriram fell on the ground. The blood started oozing through mouth and nose of my husband Shriram. I went to lift my husband Shriram. At that time accused no.1 Baliram pushed me backward towards wall. Thereafter accused no.1 Baliram and accused no.2 Vitthal danced on the chest of my husband by putting their feet. After dancing accused no.1 Baliram and accused no.2 Vitthal ran away from there. Thereafter myself, and my daughter Ujwala lifted my injured husband Shriram and brought him to our house..."

I have perused the cross-examination of this witness. In her cross-examination, it is seen that there are two omissions brought by the defence and the omission is that she did not state in her report [Exh.22] that the blood started oozing from the mouth and nose of her husband. Same omission was also brought from her police statement dated 11th February, 1999. In my opinion, whether or not blood started oozing from the mouth or nose would not a material omission, for the simple reason that ultimately in the medical examination, it is found that there was internal bleeding and obviously the internal bleeding in the head is bound to ooze out of mouth and nose. Therefore, she did not state about it in the report and in her statement to the police would make no difference. Defence was denied by her, namely that her husband slipped and fell on the heap of bricks while carrying earth in Ghamela and sustained injuries. Except this bare suggestion, there is neither any further cross-examination with details as to how this defence was possible. The defence did not bring any material on record either by examining any defence witness or other method, to probablise the said defence and remained satisfied only by giving a single line suggestion to that effect. When there is a positive evidence of Vatsala, as quoted foregoing, about the assault made by the appellant by means of a brick on the parietal region of the head of the deceased resulting into his fall on the ground and internal haemorrhage, I do not think that the story about fall could at all be accepted.

In so far as the evidence of PW 1 Vatsala is concerned, it is seen that she took her husband to the Police Station first, lodged a report and thereafter, he was taken to hospital where, after two days, he died. There was hardly any scope for manipulation for her to name the appellant in the FIR lodged immediately after the incident was over. No enmity was shown or suggested to her as to for what reason, the appellant would be involved falsely by PW 1 Vatsala. I, therefore, think that the Trial Court committed no error in believing the testimony of PW 1 Vatsala, whose evidence was trustworthy and did not show any infirmities, whatsoever. Not only that the report [Exh.22] lodged by her, in terms, corroborated her evidence and, therefore, it can well be said that her testimony was corroborated by the FIR that was lodged by her at the earliest point of time or rather immediately.

The next submission is about the delay in recording of her statement on 11th February, 1999. It is not in dispute that PW 1 lodged a report with the Police Station and that was her immediate statement to the police which was registered as FIR. In that context, therefore, her separate statement under Section 161, Criminal Procedure Code, which was recorded at a later point of time on 11th February, 1999 would make no difference, since her statement immediately after the incident was already recorded and registered as FIR.

The learned Trial Judge recorded following reasons in para 10 and the relevant portion of such reasons also contains in para 23 of his judgment:-

"10. Thus it is clear from the medical evidence of Dr. Sanjay Wathore PW 7 that in this unfortunate incident Shriram Kisan Sushir met with unnatural violent death due to crack fracture on right parietal with extramural haemorrhage and this fact cannot be doubted."

"23...Thereafter they three took the injured Shriram to Hiwarkhed Police Station by Auto-rickshaw. On the way her husband Shriram Sushir vomited blood. At Hiwarkhed Police Station she gave her oral report and police reduced the same into writing as per her version and took her thumb impression on it. The report at Ex.22 bore her thumb impression and its contents were correct, except giving threats. Thereafter her injured husband Shriram was taken to P.H.C. Hiwarkhed. She was at the Police Station for one hour. H.C. Bhagat PW 6 has testified that on 07.02.99 at about 18.00 hours complainant Vatsala Sushir PW 1 along with her injured husband Shriram Sushir came to Hiwarkhed Police Station and Vatsala Sushir gave her oral report, which he reduced into writing as per her version at Ex.22. It is important to note that Ujwala Sushir PW 3 has testified that distance between Belkhed and Hiwarkhed is about 4 to 5 kms. There is no Police outpost at village Belkhed and they did not report about the incident in question to the Police Patil of their village. It is important to note that as per complainant Vatsala Sushir PW 1, incident in question took place at about 5.00 p.m., and as per H.C. Bhagat PW 6, complainant Vatsala PW 1 reported the matter on that day at about 18.00 hours i.e., within the period of one hour of the occurrence of the incident. Thus the prompt filing of a report ordinarily over rules concoction or fabrication and is the circumstance which gives a guarantee of its truthfulness. It is important to note that first information report is not substantive piece of evidence. No doubt, first information report is a previous statement which can strictly be used to corroborate and contradict the maker of it, but omission of the important facts, affecting the probabilities of the case are relevant under section 11 of the Evidence Act, in judging the veracity of the prosecution case (See the case of Ram Kumar Pandey Vs. State of Madhya Pradesh, AIR 1975 SC 1026 : (1975) CriLJ 870 : (1975) 3 SCC 815 : (1975) 3 SCR 519 : (1975) 7 UJ 423 ."

The above reasons recorded by the learned Trial Judge are weighty and I have no reason to disagree with the same, having gone through the evidence of the prosecution witnesses.

The prosecution did examine independent witness Sahadeo Khirodkar [PW 2]. But then, he did not fully support the prosecution that too on the incident properly. Hence the submission made by Mr. S.R. Deshpande, Adv., about non-examination of independent witness is unacceptable.

The Trial Judge found that the appellant could not be held guilty of murder, who, in his anger, had hit the brick on the back side of the head of the deceased and, therefore, he was guilty of offence punishable under Section 304 Part II of Indian Penal Code and accordingly inflicted the sentence of only three years. The learned Trial Judge has his own reasons for inflicting the sentence of three years which I think is legal and proper.

In the result, therefore, I find no merit in the instant appeal. Hence the following order is made:-

ORDER

Criminal Appeal No. 139 of 2000 is dismissed..