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1987 Supreme(Bom) 39
IN THE HIGH COURT OF BOMBAY
S.N. Khatri V.V. Vaze, JJ.
Raghunath Krishna Mujumale others .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 686 of 1983, decided on 23-1-1987.
Advocates appeared :
Deepak More, for appellants.
V. S. Jadhav, P.P., for State.
Headnote:Section 162-Explanation-An omission should not only be significant but also relevant-Whether an omission amounts to contradiction-Has to be decided by the trial judge as a question of fact.
The Explanation to Section 162 Criminal Procedure Code runs : "An omission to state a fact or circumstance in the statement referred to sub-section (1) may amount to a contradiction, if the same appears to be significant and otherwise relevant, having regard to the context in which such omission occurs and whether any omission amount to a contradiction in the particular context shall be a question of fact."
In order to attract this provision, an omission must in the first place appear to be significant. Then it must be otherwise relevant, having regard to the context in which it occurs. Lastly any question whether an omission amounts to a contradiction in the particular context has to be decided by the trial Judge as a question of fact on a plain reading the Explanation. It is evident that it is only when all these requirements are fulfilled, that the omission can be treated as a contradiction and allowed to be proved. The materiality of an omission decides whether it amounts or does not amount to a contradiction. All the same, in order to decide the materiality, even now the Court has to be satisfied that the omission is significant, and it is otherwise relevant having regard to the context in which it occurs. In other words, if an omission is significant, it simply does not amount to a contradiction and should just not be allowed to be brought on record. If, and only if a particular omission appears to the trial Judge to be significant and is otherwise relevant in the context in which it appears, should be allowed to be proved. Only thereafter the question will arise at the final stage of the appreciation of evidence, as to what extent, such significant omission casts doubt on the credibility of the witness. This then would be the correct approach while dealing with omissions in police statements.
2. The first three appellants- Raghunath, Popat and Baban-are real brothers. Appellant No. 4 Leelabai is wife of the 1st appellant. The deceased Laxman Ramchandra Mujumale is their Kinsman. The incident in question occurred at Kondhapur, Haveli Taluka in Pune District on 5th February, 1983 around 9 in the field of one Baban Gangaram Mujumale (hereinafter called B.G.M. to distinguish from appellant No. 3). The appellants own agricultural land at village Kondhapur. They have their residential hut in the land itself. To the North of this hut at a distance of about 50 feet is situated a well. To the further North of the well, is the land of the deceased. There he used to reside in his hut with his wife Indubai (P.W. 2), mother Laxmibai (P.W. 3) and his children. Admittedly the appellants and the deceased were owners of the well. Both sides had right to take water from it to irrigate their respective fields.
3. The prosecution case is that on the fateful morning, the deceased had gone to the well along with his wife and mother. While he was arranging the implements on the well for drawing water from it, the four appellants were seen by his wife Indubai coming running towards the well. Appellants Nos. 1 and 4 were armed with sticks and appellants 2 and 3 with iron bars. As soon as Indubai saw these persons, she alerted the deceased to run away from the well. The deceased fled to the field of B.G.M. He got stuck up in that field in the wal crop and fell down. The four appellants are alleged to have mercilessly battered him to death with their weapons. While the assault was still in progress, the prosecution allege, appellant No. 3 suddenly went running to his hut and fetched an axe. He is said to have given a few blows with it on and around the head of the deceased. Indubai and Laxmibai in vain tried to save him. In the process the two women themselves received blows from the appellants. The deceased breathed his last on the spot itself.
4. Thereafter the two women with the help of Subhash (10 year old son of the deceased) brought the dead body near their hut and placed it under a mango tree. Head Constable Vijay Kadam (P.W. 3) was contacted at the Shivapur Outpost. He rushed to the scene of offence and recorded the F.I.R. (Exh. 16) of Indubai (P.W. 2). Usual steps in the investigation followed. Autopsy over the dead body was held by Dr. Banerji (P.W. 9) on the night of 5th/6th February, 1983. He found 24 injuries on the body all ante mortem with extensive fractures of practically all the ribs and rupture of pleura on both sides and also of the upper lobes of both lungs.
5. Indubai and Laxmibai were also examined by Dr. Salve (P.W. 10) Six injuries were found on each of the two women. Recovery of weapons was made at the instance of some of the appellants. We shall refer to them while discussing the evidence.
6. All the four appellants pleaded not guilty to the charges under sections 302/34 and 323/34 I.P.C. They deny their complicity in the crime in toto. The pith of their defence is that on the material morning there had been a Maramari at the well between Laxmibai and Indubai on the one hand and appellants 3 and 4 on the other, in which the two women assaulted the latter without any justification whatever. Coming to know of the incident, the deceased rushed to the well and started abusing the appellants and their three labourers. A fight ensued between the deceased and the labourers who battered the deceased to death. The names of labourers are, however not disclosed in the defence. Under the circumstances the appellants claim a clean acquittal.
7. On consideration of the evidence before him,
