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2003 Supreme(Bom) 141
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Sinha D.D. Kharche S.T., JJ.
State of Maharashtra .... Appellant.
Versus
Amit @ Ammu Gajanan Gandhi.... Respondent.
Confirmation Case No. 1 of 2002 with Cri.A. No. 625 of 2002 Cri. A. 625/02 with Confirmation Case No. 1 of 2002, decided on 17-1/4-2-2003.
Advocates appeared :
Mrs. Bharti Dangre, A.P.P., in Confirmation Case No. 1/2002 with Cri.A. No. 625/2002, for appellant in Cri.A. No. 625/2002 with Confirmation Case No. 1/2002, for respondent.
M.R. Daga, R.M. Daga, V.B. Palorkar, N.A. Badar Mrs. R.A. Wasnik, for respondent in Cri.A. No. 625/2002 with Confirmation Case No. 1/2002, for appellant.
Headnote:Evidence Act, 1872 - Section 3 - Evidence - Identification - Witness had an occasion to see photograph of accused before holding of T. T, Parade - It would not render his evidence of identification inadmissible - As witness has to identify accused in Court - Identification of accused in Court a substantive piece of evidence. - Merely because the witness had an occasion to see the photograph of the accused before identification parade is held, does not render his evidence of identification inadmissible in evidence, particularly because the prosecution has to examine him as witness in the Court and he has to identify the accused in the Court.
Evidence Act, 1872 - Section 3 - See Indian Penal Code, 1860, Section 300. [Sk. Hasan Sk. Ka. Rayaliwale v. State of Maharashtra, 2003 Vol. 105 (4) Bom LR 441 at p. 443 (Bom)].
- Section 3 - Evidence - Appreciation of - Identification of accused - In identification parade and before Court - Identification of accused in identification parade - Establishes identity of accused last seen with deceased at relevant time - Identification of accused before Court sufficient and substantive piece of evidence - Omissions in police statement would not render testimony of a witness unreliable - A contradiction in statement of a witness on any minor point cannot be a ground to reject whole testimony of such a witness. - Even if there would not have been any identification parade, Gunwant (PW-1) in his First Information Report (Exh. 28) had given the description of the accused and also the name of the accused. Gunwant (PW-1) and Ajay (PW-11) had identified the accused before the Court which is a sufficient and is a substantive piece of evidence. However, in the instant case, the fact that both these witnesses had identified the accused in the identification parade establishes the identity of the accused, last seen with the deceased at the relevant time. It is well-settled that omissions in the police statement by itself would not necessarily render testimony of a witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, in such a situation only the credibility of the testimony of such witness is affected. Minor contradictions are bound to appear in the statement of a truthful witness as memory sometimes plays false and the sense of observation differs from person to person. In a given situation, even if there is a contradiction in the statement of a witness on any minor point, that is not ground to reject the whole testimony of such a witness
Evidence Act, 1872 - Section 3 - Evidence - Identification - Witness had an occasion to see photograph of accused before holding of T. T, Parade - It would not render his evidence of identification inadmissible - As witness has to identify accused in Court - Identification of accused in Court a substantive piece of evidence. - Merely because the witness had an occasion to see the photograph of the accused before identification parade is held, does not render his evidence of identification inadmissible in evidence, particularly because the prosecution has to examine him as witness in the Court and he has to identify the accused in the Court.
SINHA D.D., J.:---Heard Mrs. Bharti Dangre, learned Additional Public Prosecutor for the appellant-State of Maharashtra and Mr. M.R. Daga, learned Counsel for the respondent in Confirmation Case No. 1 of 2002, as well as Mr. M.R. Daga, learned Counsel for the appellant and Mrs. Bharti Dangre, learned Additional Public Prosecutor for the respondent-State of Maharashtra in Criminal Appeal No. 625 of 2002.
2. The Confirmation Case No. 1 of 2002 as well as Criminal Appeal No. 625 of 2002 filed by the appellant raises common questions of law and fact and, therefore, they were heard together and disposed by this common judgment.
3. The circumstances, which have given rise to the prosecution of the accused Amit alias Ammu Gajanan Gandhi, in nutshell, are as follows :-
Dilip Ramdas Vaidya (P.W. 5) along with his wife Chitra Dilip Vaidya (P.W. 10) and two children were residing in Nandanwan locality of Nagpur. The deceased Pratiksha was eleven years of age at the time of her death, and was the youngest child in the family. Pratikshit was fifteen years of age and is the elder brother of deceased Pratiksha. Both the children were taking education in schools. The deceased was studying in VIth Standard in Shishu Dnyan Mandir, Nagpur. The accused is also a resident of the same locality, and occasionally used to visit the family of the deceased, since both families were knowing each other, Dilip Vaidya, the father of the deceased, was employed as a Peon in the Regional Research Centre, Nagpur, and Gajanan Gandhi, the father of the accused, was his colleague.
4. On the morning of 28th March, 2001 Dilip Vaidya (P.W. 5) dropped his daughter Pratiksha to her school at about 7.30 a.m. The school hours were till 12.30 p.m., and, therefore, the deceased Pratiksha normally used to return home from her school between 12.30 p.m. to 1.45 p.m. On 28-3-2001, she did not return home till 4.00 p.m., and, therefore, her mother informed her father Dilip Vaidya (P.W. 5) on phone about their daughter having not returned home till that time. On receiving the information, Dilip Vaidya rushed to his house and after collecting the information from his wife, immediately went in search of his daughter Pratiksha and tried his best to locate her. However, in spite of his best efforts, he could not trace his daughter Pratiksha and, therefore, on the same day he lodged a report about missing of his daughter with Sakkardara Police Station. The Police Station Officer conveyed the said information to all the Police Stations in the district. On 29-3-2001, in the evening hours, Dilip Vaidya (P.W. 5) got information from the police that a body of a girl aged about 10/11 years is found in the deserted place near forest area. Koradi Police asked Dilip Vaidya (P.W. 5) to accompany them to the spot where he identified that the dead body of the girl was that of his daughter Pratiksha. Since there were injuries noticed on the person of the deceased, it was evident that her death was neither natural, nor it was accidental and, therefore, an offence punishable under section 302 of the Indian Penal Code came to be registered against an unknown person. During the course of investigation, it was transpired from the material collected that the deceased was also subjected to sexual intercourse before her death and, therefore, a charge under section 376 of the Indian Penal Code was also added. Another aspect of the prosecution case is that Gunwant Balkrishna Khakhe (P.W. 1) and Ajay Santoshrao Thakre (P.W. 11) had seen the deceased along with the accused Amit in the remote area near Koradi Temple on 28-3-2001 at about 2.30-3.00 p.m. The prosecution witnesses accosted them and enquired about their names and addresses and relationship with each other and advised them not to move around in such a remote and deserted area and further advised them to proceed to Koradi temple where their parents were expected to arrive, as informed to these witnesses by the accused.
5. It is the case of the
