Eknath vs State of Maharashtra

A.B. Chaudhari, J.—1. Being aggrieved by the Judgment and Order dated 19th December, 2005, passed by learned Fifth Ad Hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 51 of 2004, by which the learned Trial Judge convicted the appellant of offence punishable under Section 308 of Indian Penal Code, and sentenced him to suffer Rigorous Imprisonment for three years after acquitting him of the offence punishable under Section 307 of Indian Penal Code, the appellant-accused preferred this appeal before this Court.

In support of the appeal, learned Adv. Ms. Sapkal [appointed] for the appellant vehemently contended that the impugned Judgment and Order recorded by the Trial Judge is based on the evidence of Suresh Mohurle [PW 4], Anusaya Shankar Mohurle [PW 8] and Vinayak Tulshiram Chaudhary [PW 9]. According to her, Suresh [PW 4] is a highly interested witness, though he is a real brother of the appellant. It is borne out on record and evidence that Suresh [PW 4] 3 was a drunkard and used to harass his family members for extorting money from them for satisfying his vice. She, therefore, submitted that the evidence of Suresh [PW 4] is nothing but an evidence of a fully interested witness for roping the appellant-accused in the crime in question. In so far as the evidence of Anusaya [PW 8] and Vinayak [PW 9] is concerned, she submitted that though they are the neighbourers, they have not supported the prosecution in the cross-examination. Their evidence in further cross-examination at the behest of the prosecutor would not remedy the lacunae brought in their evidence and, therefore, according to her, the evidence of Anusaya [PW 8] and Vinayak [PW 9], independent witnesses, deserves to be discarded; but the Trial Judge did not do so and fell in error.

Per contra, Mr. Jawade, learned APP, supported the impugned Judgment and Order and submitted that the Trial Judge relied on the single testimony of Suresh [PW 2], but then found corroboration by Anusaya [PW 8] and Vinayak [PW 9] to some extent, though at a later stage in the cross-examination. The inference drawn by the Trial Judge that these two witnesses got time of two months to change their version and, therefore, the possibility of appellant-accused tampering with the evidence could not be ruled out, is reasonable and no fault can be found out with the same. He, therefore, submitted that the evidence of Anusaya [PW 8] and Vinayak [PW 9] cannot be rejected. He submitted that the the Trial Judge also considered the aspect of extending the benefit of Probation of Offenders Act to the appellant, but did not exercise the discretion in his favour. Finally he prayed for dismissal of the appeal.

I have heard the learned counsel for the rival parties at length. I have perused the entire evidence tendered by the prosecution, so also the reasons recorded by the Trial Judge for recording conviction against the appellant.

It is not in dispute, rather it is the case of the prosecution that the victim was in the habit of drinking and in order to satisfy his vice, he used to demand money from his family members. Looking to his habit, the family members were fed up. But he continued to behave with the family members in the same manner which he had been doing earlier. He did not improve. Dewaji Mohurle [PW 3] is the father of both the victim and the accused, who was examined. In my opinion, he was the best witness, since the appellant as well as the victim Suresh are both his sons and, therefore, would have spoken the truth. While examining the evidence of Suresh [PW 4] in juxtaposition with the evidence of Dewaji [PW 3[, the father, I think the evidence of Dewaji [PW 3] should be preferred over the interested testimony of Suresh, who admittedly was a drunkard. The father -Dewaji [PW 3] did not support the prosecution at all. In so far as Suresh [PW 4], whose testimony has been believed by the Trial Judge, is concerned, I find that he is a highly interested witness in getting conviction of his brother [appellant], and is on inimical terms with his brother [appellant] due to the quarrels in the family, for which Suresh [PW 4] himself was responsible by harassing his family members for satisfying his habit of drinking. No premium can be given to such a person looking to the inconvenience and trouble caused to other family members, including the appellant. I, therefore, find that testimony of Suresh [PW 4] has to be tested with a pinch of salt and on having gone through the cross-examination of Suresh [PW 4], I find from his cross-examination that there are glaring inconsistencies in his evidence, in that he stated first that he gave a blow of stick on the head of the appellant. He admitted in his cross-examination that it is he who gave a blow on the appellant and immediately Mahadev had intervened. Looking to the cross-examination of this witness, I find that he is not a witness worthy of being given any credence. At any rate, as earlier found, he is a highly interested witness to back conviction of his brother for his own fault.

Other witnesses, namely Anusaya [PW 8] and Vinayak [PW 9], though sometimes supported the prosecution, sometimes supported the defence. Thus, their evidence does not inspire confidence looking to their dillydally nature of evidence. The evidence of witnesses must appeal to the Court. But then their evidence is shaken in the cross-examination. I, therefore, find that ultimately the conviction has been based by the Trial Judge on the sole testimony of Suresh [PW 4], which, in the light of the above discussion, cannot be countenanced.

In view of the above, I think, the appellant deserves to be acquitted by reversing the Judgment of the Trial Judge. To sum up, the following order is passed:-

ORDER

[a] Criminal Appeal No. 19 of 2016 is allowed.

[b] The impugned Judgment and Order dated 19th December, 2005, passed by Fifth Ad Hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 51 of 2004 is set aside.

[c] The appellant is acquitted of the charge under Section 308, Indian Penal Code, for which he is convicted.

[d] The appellant be set at liberty forthwith, if not required in any other offence.

[e] Fees payable to learned Adv. [appointed] for the appellant are quantified at Rs. 5,000-00 [rupees five thousand only].