Murlidhar s/o Sitaram Dongardive vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 1386

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
P.V. HARDAS & S.P. KUKDAY, JJ.
Murlidhar s/o Sitaram Dongardive — APPELLANT
VERSUS
The State of Maharashtra — RESPONDENT
CRIMINAL APPEAL NO.736 OF 2005
Decided on : 24.9.2007.

Advocates appeared:
Shri Mrs. Sadhana S. Jadhav, Advocate for Appellant;
Shri N.H.Borade APP for Respondent/Stated.

Headnote:Penal Code, 1860 - Section 302-Conviction and sentence under-Sole testimony of first informant-Infirmities found in-Radically changed original version-Variations affecting basic features of prosecution version cannot be treated as an elaboration-Medical evidence falsified version of incident propounded by prosecution-Conviction recorded on basis of unreliable testimony of sole eye-witness cannot be sustained-Set aside.-Principles governing appreciation of evidence of a partisan witness are by now well settled. Conviction can be founded on the sole testimony of an eye-witness even in the absence of corroboration if the evidence is of a sterling quality and inspires confidence. Minor contradictions in the evidence of witness do not corrode his testimony. The discrepancies which appear because of the errors of observation, capacity of the witness to perceive, memorise, recall and reproduce past events can be termed as normal discrepancies. These discrepancies do not adversely affect probative value of the testimony of a witness. However, the infirmities which radically change original version require serious consideration. In such a case it would be prudent to look for corroboration before relying on such tainted evidence. In the present case the trial Judge has accepted evidence of the first informant that she was living with the appellant at the time of incident, ignoring the evidence of Narayan and absence of corroboration from the neighbours or the landlord. For condoning the improvement regarding the manner of the occurrence the trial Judge observed in para 10 of the Judgment that the FIR is not an encyclopedia, thus, certain omissions can be condoned. The principle adverted to is not correctly stated. Facts stated for the first time in the Court are not regarded as discrepancies if they are in the nature of elaboration and do not affect basic features of the original version. The variation which affects the basic features of the prosecution version can not be treated as an elaboration. The trial Judge has not addressed himself to this basic difference between the discrepancies and elaboration. According to us, this faulty approach has led to an error in condoning material omission on the premise that it is an elaboration of the original version. In the present case, in Court’s considered opinion, the trial Judge has ignored vital contradictions and improvements on the specious premise that these are inconsequential and has committed an error by totally ignoring the medical evidence which falsifies the version of the incident given by the first informant. In the light of this, we can not sustain finding recorded by the trial Judge regarding guilt of the appellant. In view of the infirmities noticed in the sole testimony of the first informant and the fact that the medical evidence falsifies the version of the incident propounded by the prosecution, we are inclined to accept contention of Mrs. Jadhav, counsel for the appellant, that in the present case conviction cannot be based on unreliable testimony of the sole eye-witness. In the light of this, the appeal deserves to be allowed. Thus, Criminal Appeal No. 736 of 2005 is allowed. Conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted.

JUDGEMENT (PER : S.P.KUKDAY,J.)

Appellant Murlidhar Sitaram Dongardive is convicted by 1st Ad-hoc Additional Sessions Judge; Jalgao for having throttled Soni, daughter from his mistress Vatsalabai and for causing hurt to Vatsalabai. He is sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default to suffer R.I. for two months for first offence punishable under section 302 of IPC. For the second offence punishable under Section 323 IPC, he is sentenced to suffer R.I. for one month and to pay fine of Rs.500/- in default to suffer R.I. for ten days. This order of conviction and sentence is impugned in the present appeal.

2. We may notice few relevant facts. Pralhad Birhade, an employee of the Ordnance Factory was living with his wife Vatsalabai (P.W.3) and son Deepak in the quarter allotted to him at Varangao. Murlidhar (appellant) who was also living in the same campus developed illicit intimacy with Vatsalabai. After retirement Pralhad deserted his wife and shifted to Jalgao with his son. Vatsalabai (first informant) continued to live with the appellant in rented premises at Gopal Market area of Varangao and gave birth to Soni. About two to four months prior to the incident appellant fell sick and started living with his brother Damu and brother in law Laxman Salve but continued to visit Vatsalabai.

3. On 7th March, 2004 at about 3.00 to 3.30 p.m. Vatsalabai bathed two and half month old Soni at the water tap in Ordnance factory area, washed clothes and was returning to the house at about 5.00 to 5.30 p.m. On her way back, appellant met her near Consumer Society shop. Vatsalabai told him that she desires to undergo vasectomy as she does not wish to bear children. Appellant approved the suggestion and took her to an isolated place in the forest behind the Ordnance Factory. Both of them sat under a mango tree. Appellant played with Soni for some time and suddenly started pressing her neck and rubbing her face in the soil for smothering her. When the first informant tried to snatch the weeping child, appellant pushed and hit her on the back but continued to throttle the child. The child was dead by the time first informant succeeded in snatching her from the appellant. The appellant left the place when first informant ran with the dead body of the child towards Sushilnagar. On her way, the first informant met two three women from the hutment. She informed them and some persons who were standing near the temple, of what had happened. They advised her to approach the police. The first informant then went to the police station and narrated the incident. API Sanjay Sangle (P.W.6) recorded FIR (Ex.31) and registered offence under section 302 of the Penal Code against the appellant. He then held inquest (Ex.12) on the dead body of the child and sent it for postmortem. On the next day the investigating officer prepared panchanama of the scene of offence (Ex.11) and arrested the appellant. On completion of the investigation the appellant was charge sheeted.

4. At the trial the appellant denied his relationship with the first informant and paternity of the child. Appellant adopted defence of total denial, claiming that he was at the house of his brother at the time of the incident.

5. In support of its case, the prosecution examined six witnesses. Ganesh Patil (P.W.1) has proved Spot Panchanama (Ex.11). Neither blood nor marks of rubbing were found at the scene of occurrence pointed out by the first informant. Narayan Mahajan (P.W.2) stated that he does not know whether Vatsalabai lived with the appellant at any time but he knew that she used to sleep on the raised platform of the houses of different persons after she was deserted by her husband. He further stated that on the day of incident at about 6.30 p.m. about 50 to 60 persons had gathered at the bridge near Vatsalabai, as she was shouting that the appellant had committed murder of her daughter. Hemant Naik (P.W.5) stated that on 6.3.2004 at the bridge Vatsala

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2007 Supreme(Bom) 1386

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADP.V. HARDAS & S.P. KUKDAY, JJ.Murlidhar s/o Sitaram Dongardive — APPELLANTVERSUSThe State of Maharashtra — RESPONDENTCRIMINAL APPEAL NO.736 OF 2005Decided on : 24.9.2007.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
P.V. HARDAS & S.P. KUKDAY, JJ.
Murlidhar s/o Sitaram Dongardive — APPELLANT
VERSUS
The State of Maharashtra — RESPONDENT
CRIMINAL APPEAL NO.736 OF 2005
Decided on : 24.9.2007.