BABU NATHU GOND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Facts-Five separate appeals were filed by Babu, Nagorao, Atmaram, Mahadeo and Shankar against the judgment of the Sessions Judge, Amravati convicting each of them of an offence under section 302 read with section 34 of the Indian Penal Code and sentencing each to suffer imprisonment for life. The charge against the appellants along with accused No. 6 who was acquitted recited that in furtherance of the common intention of them all, in the night between 27th and 28th Nov., 1972 at Chichfail locality of Amravati town, they committed the murder of one Madhukar Borkute residing in the same locality. On the morning of Tuesday, the 28th Nov., 1972, Madhukar was seen lying injured completely naked and unconscious in the open space behind the house of one Rajnarayan Pardeshi in Chichfail locality.To prove the case against each accused, the prosecution mainly depended on the eye-witness account and in so far as Atmaram, accused No. 2, was concerned, there was injury on his person and it was the case of the prosecution that it was caused while assaulting Madhukar. As regards Babu in addition to the finding of the clothes and oral account given by the witnesses, the prosecution relied upon the presence of blood on the Tatta of his court-yard and reliance was also placed upon Babu having changed his clothes overnight. The wife of accused No. 1 was acquitted having been given the benefit of doubt.In so far as the two witnesses Ramrao P.W. 13 and Babarao P.W. 14 who were reported to have turned hostile and permission to cross-examine them under section 154 of the Evidence Act had been granted, a contention was raised that their evidence could not be taken into account in view of the pronouncement of the Supreme Court in Jagirsing Vs. State AIR 1975 SC, 1400. Dealing with the question the judgment proceeded.

(2.) Dighe, J. - Mr. Kamlakar appearing for the accused invited our attention to the decision of the Supreme Court in Jagir Singh Vs. State (Delhi Administration),(Supra), acase decided by P.N. Bhagwati and N.L. Untawalia JJ. Mr. Kamlakar relies upon the following observations:

(2.) In that case the appellant was convicted of the murder of one Harneksing and mainly there were three witnesses: Pritamsingh (P.W. 10), Swaransingh (P.W. 11) and Sajjansingh (P.W. 13). Permission to put questions in the nature of cross-examination to Swaran Singh (P.W. 11) was granted and the decision shows that the evidence of the two other witnesses was not sufficient to establish the case for the prosecution so that the appeal was allowed and the conviction was set aside. It appeared to be the case of the witnesses that they had seen the accused shooting at the deceased. Thereafter they had gone to meet one Banta Singh and subsequently went to the police station where information was already lodged. During the course of the judgment discussion centres round the point whether the persons posing to be eye witnesses were really and truly the eye witnesses to the incident as deposed to by them. Fault was found with the position of attack as given by Pritamsingh (P.W. 10) in contrasting it with the medical evidence and it is said that Pritamsingh, Swaransingh and Sajjansingh had earliest opportunity of disclosing the name of the appellant as the assailant of Harneksingh when they brought Harneksingh in the truck. There Constable Bishambhardayal was present. It appears that Sajjansingh and one Meharsingh not examined, had given the information of the incident to the Constable. That was given in the presence of Pritamsingh and Swaransingh, but fault is found that none of them disclosed the name of the person who fired at Harneksingh. It is stated to be a very important part of the information and like others, Swaransingh (P.W. 11) the hostile witness, was also subjected to condemnation for not doing that. Similarly during the course of the judgment it is remarked that the prosecuting counsel should have put a question for finding out whether anybody had given the name of the appellant to the Constable and while naming such persons Swaransingh is also indicated as one of the persons. In the further discussion it is as if assumed that Swaransingh was present when Harneksingh was brought to the hospital and a finding is given that Pritamsingh, Swaransingh, Sajjansingh and Meharsingh did not disclose the name of the assailant in the hospital. It is also stated later on that like others (P.W. 11) Swaransingh also did not witness the incident. Surprise was expressed why Swaransingh as well as others did not go to the police station and it is said that this was strange and inexplicable conduct on the part of Pritamsingh, Swaransingh and also Sajjansingh and Meharsingh. A reading of the judgment, therefore, would prima facie show that some of the statements made by P.W. 11 Swaransingh were considered in the appropriate context in arriving at certain conclusions.