Holding

The High Court was justified in overturning the trial court acquittal; the child witnesses were competent, the dying declaration and forensic evidence were reliable, and a motive existed, thereby upholding the convictions under Sections 147, 148, 149 and 302 IPC.

Summary

The case involved eight accused who were charged with the murder of three members of the Kolhe family in two related incidents. The prosecution relied on the testimony of two child eyewitnesses (aged 11 and 13), a dying declaration, medical reports, and blood‑group matches of recovered weapons. The trial court acquitted the accused, finding the eyewitnesses unreliable and the motive unestablished. On appeal, the Bombay High Court convicted the accused, holding that the child witnesses were competent, the dying declaration was corroborated, and the prior 1981 attempt‑to‑murder provided a clear motive. The Supreme Court affirmed the High Court’s decision, emphasizing that Section 118 of the Evidence Act does not bar child testimony, that the evidence was credible despite minor inconsistencies, and that the delay in filing the FIR did not defeat the prosecution’s case.

Issues considered

The competency and reliability of child witnesses under Section 118 of the Evidence Act.
Whether the trial court erred in acquitting despite the dying declaration and corroborative evidence.
Whether a motive existed for the murders, linking them to the 1981 attempt‑to‑murder case.
Whether the delay in lodging the FIR affects the credibility of the prosecution’s case.
Whether the prosecution evidence satisfies the requirements for conviction under Sections 147, 148, 149 and 302 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872s. 118
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302

Subjects

child witnessdying declarationmotivemurderSections 147 148 149 302 IPCEvidence Act Section 118FIR delayconvictionacquittalcriminal justice system

Judgment

f2009] 7 S.C.R. 364

A HIMMAT SUKHADEO WAHURWAGH & ORS. I,.
V.
STATE OF MAHARASHTRA
Criminal Appeal No. 1641 of 2007
MAY 1, 2009
B [S.B. SINHA, HARJIT SINGH BEDI AND AFTAB
ALAM, JJ.]
Penal Code, 1860 - ss. 147, 148 and 3021149 - Murder 'F
of three persons in two incidents - By eight accused - One of .....
the deceased making dying declaration inculpating the
c accused - Eye-witness to both the incident - Two of the
witnesses were children - Recovery of weapon of offence with
blood-stains - Group of blood matched with that of deceased
- Acquittal by trial court - Conviction by High Court - On
appeal, held.' Conviction justified - Eye-witness to the first
incident, though a child, cannot be discarded - His evidence
D duly corroborated by dying declaration - Witnesses to the
.....
second incident also reliable - prosecution story is supported :}
by medical evidence - Evidence Act, 1872 - s. 118.
Administration of Justice - Difficulties faced by criminal
courts - Discussed.
E The eight appellants-accused were prosecuted for
having killed three persons. As per prosecution, in the first
incident accused attacked two persons. Eye-witness to the
incident PW1 ( a child witness) was accompanying them.
He escaped and narrated the incident to his family -y,..
members. When others reached the spot, one of the
F deceased made a dying declaration to PW2. Accused
persons were hunting for other family members of the
deceased. When 'N' was going with PW4 (child witness) to
lodge the compliant, accused assaulted 'N' which resulted
in his death. Eye-witnesses to the second incident were
PWs 4, 5 and 6. The motive behind the occurrence was that ~

G one of the deceased was convicted for attempt to murder
father of some of the accused. This incident took place just ).-~
after release of the deceased from the jail. PW 3 informed
the police on phone. After arrest of the accused, on their
disclosure statement, weapons of offence and blood-
H 364
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 365
STATE OF MAHARASHTRA
..J.
stained clothes were recovered. Trial court acquitted all A
the accused u/ss. 147, 148 and 302/149 IPC. High Court
-~ convicted all of them. Hence the present appeal.
Dismissing the appeal, the court
HELD: 1.1 The evidence in the instant case suggests
that the judgment of trial court was unjustified in the face B
of extremely credible evidence and was based on a
complete misconception as to the evidence on record .
'
• High Court was justified in interfering in the matter on a
re-appreciation of the evidence. [Para 4] [372-D-E]
Chandrappa and Ors. vs. State of Karnataka (2007) 4
SCC 415; Swami Prasad vs. State of Madhya Pradesh J.T. c
2007 (4) SC 337 - relied on
1.2 Third deceased and his sons were prosecuted for
an attempt to murder father of accused 1 to 5 and were
sentenced to five years imprsionment by the trial court, but
the sentence was reduced to three years by the High Court D
"+
and the accused were released from jail. The present
incident took place within four months of that release. It is ·
true that some of the prosecution witnesses have testified
that during the eight years between the earlier incident and
the present one, the relations between the two parties had
improved and that they were on visiting terms as well. It is E
obvious, however, that the release of the third deceased
and his sons from jail was an event which undoubtedly
-~ --f ignited old passions and animosities and precipitated the
incident. The finding of the trial court that there was no
motive for the murders is, thus, on the face of it, unacce-
ptable. [Para 1O] [376-B-E] F
1.3 On a perusal of evidence of PW1 it stands revealed
that he was able to discern between right and wrong and
despite a searching cross-examination made by the
defence lawyer nothing adverse could be brought out. He
__ ..,. testified that he had gone along with the two deceased to G
plough the field and while they were returning home, they
....
had been surrounded by all the accused and injuries had
been caused to his father and uncle. He also specified
the weapons that each of the accused was holding and the
manner of their use. He also stated that in the confusion
that followed the attack, he had managed to escape, had H
366 SUPREME COURT REPORTS [2009] 7 S. C.R.

.... '
A rushed home, revealed the story to his family and then
hidden himself till the next morning. [Para 12] [377-A-C]
:--
1.4 It is also evident from the testimonies of the other
prosecution witnesses viz. PWs 3, 5 and 6 that when they
along with third deceased were planning to go to the
Police Patil to lodge the report with regard to the first
B incident, they had been apprehended by the accused and
injuries had been caused to the deceased which had led
to his death. PWS further deposed that after this incident,
the accused had also come to her home and threatened
to beat her as well. [Para 12] [377-C-D]
c 1.5 PW 14 one of the investigation officers, in his
deposition stated that when he reached the village, he
noticed an unusual and artificial calm in the village, an
atmosphere of panic and fear and that the inhabitants were
unwilling to even open the door till they were told that the
police had arrived. It is, therefore, obvious that the
D accused had let loose a reign of terror and after having ~

killed three persons were still not satisfied and were
looking around for other victims from the family.
Therefore, PW 1 had thought it fit and prudent to hide
himself till the coast was clear. It is found from the
evidence that he fully understood the implications of what
E he was saying and despite a stiff cross-examination
nothing to discredit him could be brought out. [Para 12]
1.6 Section 118 of the Evidence Act does not preclude )..-"'
a child from being a witness and the only test that is
applicable is as to whether the witness understood the
F sanctity of an oath and the import of the questions that
were being put to him. [Para 12] [378-A]
Nivrutti Pandurang Kokate and Ors. vs. State of
Maharashtra (2008) 12 SCC 565 - relied on.
1.7 PW 1 was aware of what had happened, in the
G
answers given by him in the course of his evidence which
clearly proved that he was a competent witness. His ~~
statement has been duly corroborated by the dying
declaration made by one of the deceased to PW 2 who
.
had rushei;I to the spot on being informed by PW1 as to
what had happened. [Para 14] [378-F-G]
H 1.8 The third murder had been witnessed by PW 4,
HIMMAT SUKHADEO WAHllRWAGH & ORS. V. 367
STATE OF MAHARASHTRA

PW 5 and PW 6. Admittedly, PW 4 who was then 13 years A
of age, was a child witness and is the grandson of the
deceased. The cross-examination of this witness was very
sketchy and nothingfruitful could be elicited by the
defence counsel. His statement also finds corroboration
from the evidence of PW5 a member of the Gram
Panchayat, and PW6 the independent witness. Though B
PW3 was a child witness, he too satisfies the test laid
down as regards a child witness." [Para 15] [379-A, C-0]
Dinesh Kumar vs. State of Rajasthan (2008) 8 SCC 270
- referred to.
1.9 The evidence in most of the cases is recorded C
after some delay and that in any case if every witness were
to give an identical and parrot like statement, it would
smack of tutoring and would lose credibiHty. Some
inconsistencies are thus bound to arise particularly where
a large number of victims, witnesses and accused are
involved and the incident itself is spread out over a D
· distance and period of time, as in the present case.
Moreover, the involvement of a large number of accused
in the present matter is further proved from the number
of murders, the injuries caused, and more glaringly, in that
a reign of terror had been let loose with the accused
making repeated forays into the village, looking for more E
members of the family. [Para 18] [380-D-G]
1.10 The medical evidence fully supports the
prosecution's story. The prosecution story, is further
fortified by the recoveries made from some of the· ·
accused. The recovered weapons of offence were stained F
with human blood of group 'A' and group 'O'. It has come
in, that the blood group of third deceased was '0' and that
of first two deceased was 'A'. [Para 20] [381-C-D]
1.11 Some delay in the lodging of the F.l.R., even if
taken as correct, becomes insignificant. On the contrary, G
there is no delay in the facts of the case. The three murders
and the manner in which the members of the complainant
party had been hunted out and killed and threats had been
held out to the other members of the family as well, had
created an atmosphere of terror in the village and if the
entire investigation on the crucial day did not proceed with H
368 SUPREME COURT REPORTS (2009] 7 S.C.R.

A clock work precision, no adverse inference can reason- i_

ably be drawn from this fact. [Para 21] [381-E; 382-A-B]
2. The criminal justice system as of today in our
country, is beset with major issues, sometimes unrelated to
what happens in court, particularly in cases involving more
than one accused. Fudged and dishonest first information
B
reports, tardy and misdirected investigations and
witnesses committing perjury with not the slightest qualm
or a quibble make the decision of even the most diligent
and focused of judges particularly galling and difficult. ......
Several other factors inhibit the proper conduct of procee-
,.. c dings in a trial. The Fourth Report of the National Police
Commission (1980) Chpater XXVlll gives some alarming
statistics showing that majority of cases end up in acquittal.
It is indicative of the malaise that afflicts our criminal justice
'·s}'stem and paint a grim picture. The Commission also
fo\lnd that one of the primary reasons for the failure of the
D prosecution was the propensity of prosecution witnesses
to tl#n hostile and several reasons for this trend have been ~

spelt out. In this pernicious state of affairs, the judge, gravely
handicapped, has to apply his knowledge of the law and
his assessment of normal human behaviour to the facts of
the case, his sixth sense based on his vast experience as
E to what must have happened, and then trust to God and
good luck that he strikes home to come to a right ......
conclusion. [Paras 7, 8 and 9] [374-B-E; 375-C-H; 376-A]
"Crimes in India - 1998"; The Fourth Report of the \.' ,.,
National Police Commission (1980) Chapter XXVlll - referred to.
F Case Law Reference
(2001) 4 sec 415 Relied on. Para 4
J.T. 2007 (4) SC 337 Relied on. Para 4
(2008) 12 sec 565 Relied on. Para 13
2008 (8) sec 210 Referred to. Para 16
G
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1641 of 2007 ~ ......
From the Judgement and Order dated 24.04.2007 of the
Hon'ble High Court of Judicature at Bombay Nagpur Bench
Nagpur in.Criminal Appeal No. 318of1991
H
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 369
STATE OF MAHARASHTRA
-Jo..
R.S. Lambat, Devan Lembat, Kishore Lambat, John C. A
Rose, for the Appellant.
'•
Chinmoy Khaladkar (for Ravindra Keshavrao Adsure), for
the Respondent.
The Judgement of the Court was delivered by B
HARJIT SINGH BEDI, J.
1. This appeal is directed against the judgment of the
Bombay High Court dated 24th April 2007 whereby the State
appeal against acquittal against the judgment of the Additional c
Sessions Judge, Akola has been allowed and the accused
convicted and sentenced for offences punishable under Section
302/149 of the IPC etc. The facts are as under:
2. At about 4 p.m. on 11th June 1989 Babarao Kolhe, his
... brother Jaidev Kolhe and grandson Sanjay PW-1 residents of D
village Panaj, went to plough their fields, about one-and-a half
kilometers away from the village. As they were returning home
in their bullock cart, they were waylaid by the eight accused,
variously armed with axes and sticks who attacked Babarao
and Jaidev. Sanjay escaped from the spot and reached home E
and informed his grandfather Namdeo Kolhe about what had
happened, giving details of the injuries caused by each of the
'.~ " accused. In the meantime, the bullock cart sans Babarao and
Jaidev too returhed to the residence in the village. Namdeo
Kolhe thereupon called his sons Dadarao and Wasudeo and F
alongwith several other persons went in search and found
Babarao and Jaidev lying seriously injured in the field of one
Vishwanath Akotkar. It is the case of the prosecution that Jaidev
made a dying declaration to Dadarao that the eight accused
_...... had beaten him and Babarao. The two injured were thereafter
taken homeward and as the party entered the village. Namdeo
G
and the others received information that the accused were
searching for them as well so that they too could be killed.
Dadarao and Wasudeo thereupon left the cart and returned
home by a circuitous route. Namdeo then left for the house of
H
370 SUPREME COURT REPORTS [2009) 7 S.C.R.

A the Police Patil accompanied by his grandson Bhimrao PW 4
and Deokabai PW 5 but he too was assaulted along the way by
the accused. Bhimrao rushed back home and narrated the
(
incident to his mother Shantabai and to his father. The accused
also threatened Deokabai that they would kill her as well on which
B she made a hasty retreat to her home. Wasudeo then went to
Karla to send a message to the Police at Akot on phone, but he
could not get the connection on which the operator advised him
to call the police atAnjangaonsurji Police Station. The message
was accordingly conveyed by the Anjangaonsurji police to Akot
c police station on which PSI Thombre recorded the message in
the Daily Diary and also informed Inspector Patil PW 14 about
the incident. This police officer reached Panaj at about 1:00
a.m. and on enquiry, found that Babarao, Jaidev and Namdeo
were dead. He then recorded the statement of Dadarao on which
a First Information Report under Section 302 r/w Section 34 of
0
the Indian Penal Code was registered. The Police also started
on the investigation and sent the dead bodies for the post mortem
examinations. The accused, who did not make an attempt to
run away, were arrested from the village the very same day and
on their disclosure statements, the weapons of offence as also
E bloodstained clothes were recovered. On committal the
Additional District Judge framed charges ur.der Sections 147,
148 and 149 r/w Section 302 of the IPC against the accused.
The Trial Court in the course of a somewhat laboured judgment
., ... '

held that the deposition of Sanjay PW 1, the solitary eye witness
F to the murders of Jaideo and Babarao, could not be believed
as his conduct belied his presence in as much that after reaching
home he had hidden himself in the house of one Abgad and
had not reported the matter to his neighbours. The Court also
held that the graphic details of the injuries caused by each of
G the accused made his story improbable. The statements of
Dadarao PW 2, to whom Jaideo (deceased) had made a dying
declaration and Wasudev PW 3 naming the accused as their
assailants were also discarded, on the premise that there were
many improvements vis-a-vis their statements under Section
H 161 of the Cr.P.C. The Trial Court also observed that the
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 371
STATE OF MAHARASHTRA [HARJIT SINGH BEDI, J.]
_._ witnesses were closely related to the deceased and to each A
other and as there appeared to be no plausible motive for the
murders and the delay in the lodging of the FIR were other factors
which cast a serious doubt on the prosecution's story. The Trial
Judge accordingly, by his Judgment dated 2a1h February 1991,
acquitted the accused. On appeal the High Court observed that B
the finding of the Court that the eye witness account was
unreliable was erroneous, the more so as Sanjay, who was a
witness to the first two murders, though a child, was absolutely
reliable. The Court also found that the testimonies of PW 4
Bhimrao, PW 5 Deokabai and Anandrao PW 6 with respect to c
the assault and murder of Namdeo too were reliable and had to
be accepted. The High Court also observed that the finding of
the Additional Sessions Judge that there was no apparent motive
for the murders was, on the face of it, unacceptable as it was
the admitted position that in 1981, Namdeo (deceased) and
D
his sons had been prosecuted for an attempt to murder Sukhdeo,
father of accused nos. 1 to 5 and had been convicted and
sentenced to rigorous imprisonment for five years but on appeal
in the High Court, the sentence had been reduced to three years
whereafter the accused had been released from jail in February
1989. The High Court, thus, deduced that the present incident, E
1
which took place on 11 hJune 1989was a fall out of the incident
of 1981 and had occurred about four months after the accused
-~ ~ had been released from jail. The High Court further held that the
medical evidence given by Dr. Jaiswal PW 7 and the chemical
examiners report corroborated the eye witness account. The F
Court also believed the statement of PW 2 Dadarao with respect
to the dying declaration made by Jaideo. Having recorded its
findings on these basic issues, the High Court reversed the order
and judgment of acquittal and convicted all the accused for
offences punishable under Sections 147, 148 and 302 r/w 149 G
of the Indian Penal code and sentenced each of them as under;
two years rigorous imprisonment for the offence punishable
under Section 147 of the Indian Penal Code, three years rigorous
imprisonment for the offence under Section 148 and to
imprisonment for life and a fine of Rs.5,000/- in-default to suffer H
372 SUPREME COURT REPORTS [2009} 7 S.C.R.

A rigorous imprisonment for one year for the offence punishable
under Section 302 r/w Section 149. It is in this background that
the matter is before us by way of Special Leave.
3. At the very outset, it has to be pointed out that the two
warring groups belong to Village Panaj, live in the same locality
8 and belong to the same caste. They are also, within themselves,
very closely related inter se. Namdeo (deceased), was the father
of Babarao and Jaideo (deceased) whereas Dadarao PW 2,
and Wasudeo PW 3 are his sons and PW 1 Sanjay is the son of
Babarao whereas Bhimrao PW 4 is the son of Dadarao
C aforesaid and Shantibai PW 10. Likewise we see from the
record that the appellants Himrnat, Siddhartha, Gautam, Anil
and Sanjay Kumar are brothers; Waman- is an uncle of the above
mentioned accused whereas Prakash and Suresh are his sons.
4. In this background, Mr. R.S. Lambat, the learned counsel
0
for the appellants has argued that the Trial Court on a minute
examination of the evidence had thought it fit to record an order
of acquittal, a view which was clearly tenable on the facts of the
case, and the High Court was, thus, not justified in re-
appreciating the evidence and arriving at a different conclusion.
E He has highlighted that an accused was presumed to be innocent
till held guilty by a competent court and this principle was
immeasurably strengthened where the Trial Court had made an
order of acquittal. There can be no quarrel with these basic
propositions, but we are of the opinion that the evidence in the
F case suggests that the judgment of the Additional Sessions
Judge was unjustified in the face of extremely credible evidence
and was based on a complete misconception as to the evidence
on record. We are, therefore, of the opinion that the High Court
was justified in interfering in the matter on a re-appreciation of
G the evidence. In this connection, we refer to the judgment in
Chandrappa and others vs. State of Kamataka (2007) 4 SCC
415 wherein it has been observed that an Appellate Court has
full authority to re-appreciate and re-consider the evidence in a
case of acquittal barring a case where two views are possible
H on the evidence and one favouring the accused has been taken.
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 373
STATE OF MAHARASHTRA [HARJIT SINGH BEDI, J)
_.,.
However where the judgment of the Trial Court is based on a A
complete misreading of the evidence and a view in favour of
the accused was not justified and only one view with regard to
the culpability of the accused was possible, the High Court would
be failing in its duty if it did not interfere. Similar views have
been expressed in Swami Prasad vs. State of Madhya Pradesh B
J.T. 2007 (4) SC 337, and a plethora of other judgments. We
are, therefore, of the opinion that interference by the High Court
~>V
was called for in the circumstances.
5. Mr. Lam bat then argued that there was no motive for the
triple murder as the earlier incident of 1981 had apparently been c
forgotten inasmuch that the relations between the parties had
admittedly improved and they were on visiting terms. It was then
submitted that the first two murders had been seen by Sanjay
PW 1 but his presence was doubtful as he had disappeared
from the scene and hidden himself in the house of Abgad and D
·-. had surfaced only the next morning, and thereafter narrated his
story. It has also been pleaded that the evidence of PW 4
Bhimrao another young child of about 13 years, PW 5 Deokabai
and Anandrao PW 6 who had witnessed the attack on Namdeo,
could not be believed as the story projected by them that they E
had rushed into their houses after seeing the incident and had
done little else could not be believed: It has accordingly been
_,,. "* emphasized that the entire eye witness account was based on
the testimony of close and interested relatives of the deceased
and though, the entire incident had happened either in the village F
itself or just outside of it, no independent witness had come
forth in support of the prosecution. It has been pointed out that
in this background the fact that the FIR had been filed belatedly
was a factor which cast a serious doubt on the prosecution story.
6. The Counsel for the respondent State has, however, G
submitted that the motive for the incident was writ large on the
facts of the case and that merely because the primary witnesses
Sanjay and Bhimrao were related to the deceased was no
ground to disbelieve their testimonies particularly as they had
been corroborated by the dying declaration made by Jaideo to H
374 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Dadarao PW 2, the medical evidence in the case, as also the ~-

recovery of the murder weapons at the instance of the accused
which were found on analysis to have been stained with human
blood of identifiable blood groups.

7. Before we embark on an appreciation of the evidence
B some thoughts come to mind. The criminal justice system as
we understand it as of today in our country, is beset with major
issues, sometimes unrelated to what happens in court,
particularly in cases involving more than one accused. Fudged
and dishonest first information reports, tardy and misdirected
""'
c investigations and witnesses committing perjury with not the
slightest qualm or a quibble make the decision of even the most
diligent and focused of judges particularly galling and difficult.
Several other factors inhibit the proper conduct of proceedings
in a trial. As per "Crimes in India - 1998" a total of 5,42,345
D cases under the Indian Penal Code including those carried over
from the previous years, and another 6,37,345 criminal cases ,..
under Special and Local Laws making a backlog of 11,79,690
cases were pending investigation. It has also been found that
the delay in the investigation and disposal of a criminal case
E makes the possibility of acquittal that much higher as witnesses
tend to turn hostile. The Fourth Report of the National Police
Commission (1980) Chapter XXVlll gives some alarming
statistics inasmuch that a sample study of Sessions cases in a
... "-
crime infested district revealed that out of 320 cases disposed
F off in the concerned Sessions court during the 8 months working
..
period in a year, only 29 ended in conviction while 291 ended in
acquittal. In conclusion, the Commission observed:
"As many as 130 cases, which included 21 murders, 58
attempts at murder, 17 decoities and 9 robberies, took
G more than 3 years for disposal, reckoning the time from
the date of registration of First Information Report. It was
also noticed that the longer a case took for disposal the
,.... ....
more were the chances of its acquittal. Protracted
proceedings in courts followed by acquittal in such heinous
H crimes tend to generate a feeling of confidence among
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 375
STATE OF MAHARASHTRA [HARJIT SINGH BEDI, J)
-1'
the hardened criminals that they can continue to commit A
crimes with impunity and ultimately get away with it all at
the end of leisurely and long drawn legal battles in courts
which they can allow their defence counsel to take care of.
.Such a situation is hardly assuring to the law abiding
citizens and needs to be immediately corrected by B
appropriate measures even if they should appear drastic
-y and radical."

8. We hasten to add that these alarming figures are not
universally applicable to all districts, but they are undoubtedly
indicative of the malaise that afflicts our criminal justice system c
and paint a grim picture. The Commission also found that one
of the primary reasons for the failure of the prosecution was the
propensity of prosecution witnesses to turn hostile and several
reasons for this trend have been spelt out. The Commission
also quoted with approval from a letter of a senior Sessions D
. Judge in which he wrote that:
"A prisoner suffers for some act or omission but a witness
suffers for no fault of his own. All his troubles arise because
he is unfortunate enough to be on the spot when the crime
is being committed and at the same time "foolish" enough E
to remain there till the arrival of the police. It is for these
~-" 'ii reasons that people do not take the victim of a road
accident to hospital or come to the help of a lady whose.
purse or gold chain is being snatched in front of her eyes.
If some person offers help in such cases he is to appear F
as a witness in a court and has to suffer not only indignities
and inconveniences but also has to spend time and money
for doing so. Some time the witnesses incur the wrath of
hardened criminals and are deprived oftheir lives or limbs."
~~
G
9. In this pernicious state of affairs, the judge, gravely
handicapped, has to apply his knowledge of the law and his
assessment of normal human behaviour to the facts of the case,
his sixth sense based on his vast experience as to what must
have happened, and then trust to God and good luck that he
H
376 SUPREME COURT REPORTS [2009] 7 S.C.R.

A strikes home to come to a right conclusion. To our mind, the last
two are undoubtedly imponderables but they do come into play
in negotiating the judicial minefield. This is an undeniable fact
whether we admit it or not

10. We now take up for discussion the various issues
B raised by the learned counsel. Happily, the pitfalls that we have
noted above do not exist in the present case. Namdeo, the
deceased and his sons were prosecuted for an attempt to Y'-
murder Sukhdeo, the father of accused 1 to 5 in the year 1981
and were sentenced to five years by the trial court, but the
c sentence was reduced to three years by the High Court and the
accused were released from jail in February 1989. The present
incident took place within four months of that release. It is true
that some of the prosecution witnesses have testified that during
the eight years between the earlier incident and the present one,
D the relations between the two parties had improved and that
they were on visiting terms as well. It is obvious, however, that
the release of Namdeo and his sons from jail was an event which
undoubtedly ignited old passions and animosities and
precipitated the incident. The finding of the Trial Court that there
E was no motive for the murders is, thus, on the face of it
unacceptable and it has been so found by the High Court, a
finding that we too firmly endorse.
y "-
11. The record reveals that the incident happened in two
parts, first at about 6:00 p.m. and again an hour later. In the first
F incident Babarao and Jaideo were killed, an event which was
witnessed by PW 1 Sanjay, the son and nephew of the two
deceased, respectively. The second incident was witnessed by
PW 4 Bhimrao, PW 5 Deokabai and PW 6 Anandrao. We now
take up for consideration the evidence of each of these two
G sets of witnesses.
~
12. It has been submitted by the learned counsel for the
appellants that Sanjay was a mere child of 11 years of age and
in running away and hiding himself in the house of Abgad
particularly after his father had been brutally murdered, was an
H
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 377
STATE OF MAHARASHTRA [HARJIT SINGH BEDI, J.]
~ unacceptable story. We find no merit in this plea. On a perusal A
of Sanjay's evidence, it stands revealed that he was able to
discern between right and wrong and despite a searching cross-
examination made by the defence lawyer nothing adverse could
be brought out. San jay testified that he had gone along with the
two deceased to the plough fields at about 4:00 p.m. and while B
they were returning home, they had been surrounded by all the
accused near the field of one Vishwanath and injuries had been
-'Y caused to his father and uncle. Sanjay also specified the
weapons that each of the accused was holding and the manner
of their use. He also stated that in the confusion that followed c
the attack, he had managed to escape, had rushed home,
revealed the story to his family and then hidden himself till the
next morning. It is also evident from the testimonies of the other
prosecution witnesses Bhimrao, Deokabai and Anandrao that
when they along with Namdeo (deceased), were planning to go
D
"( to the Police Patil to lodge the report with regard to the first
incident, they had been apprehended by the accused and injuries
had been caused to Na.mdeo which had led to his death.
Deokabai further deposed that after this incident the accused
had also come to her home and threatened to beat her as well.
PW 14 Sub lnspectorVinayak, one of the investigation officers, E
in his deposition stated that when he reached the village at about
1
_,. 1:45 a.m. on 12 h June 1989, he noticed an unusual and artificial
'* calm in the village, an atmosphere of panic and fear and that
the inhabitants were unwilling to even open the door till they were
told that the police had arrived. It is, therefore, obvious that the F
accused had let loose a reign of terror and after having killed
three persons were still not satisfied and were looking around
for other victims from the Kol he family. Little wonder, therefore,
that Sanjay had thought it fit and prudent to hide himself till the
coast was clear. It is true that the Addi. Sessions Judge did not G
---f put any questions to Sanjay to ascertain his suitability as a
witness. We, however, find from the evidence that he fully
understood the implications of what he was saying and despite
a stiff cross-examination nothing to discredit him could be
brought out. We endorse the finding of the High Court that H
'
378 SUPREME COURT REPORTS [2009] 7 S.C.R.

Section 118 of the Evidence Act does not preclude a child from t-
A
being a witness and the only test that is applicable is as to
whether the witness understood the-sanctity of an oath and the
import of the questions that were being put to him.
13. In Nivrutti Pandurang Kokate and Others vs. State of
B Maharashtra (2008) 12 SCC 565, it has been observed that
the Section 118 of the Evidence Act envisages that all persons
shall be competent to testify unless the Court thinks otherwise. y-
In summing up the various judgments on this issue, this is what
this Court had to say:
c
"The decision on the question whether the child witness
has sufficient intelligence primarily rests with the trial Judge
who notices his manners, his apparent possession or lack
of intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
D
intelligence as well as his understanding of the obligation y
of an oath. The decision of the trial court may, however, be
disturbed by the higher court if from what is preserved in
the records, it is clear that his conclusion was erroneous.
This precaution is necessary because child witnesses are
E amenable to tutoring and often live in a world of make-
believe. Though it is an established principle that child
witnesses. are dangerous witnesses as they are pliable
...
and liable to be influenced easily, shaped and moulded, *'
but it is also an accepted norm that if after careful scrutiny
F of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the
way of accepting the evidence of a child witness".
14. We are of the opinion that Sanjay was aware of what
had happened in the answers given by him in the course of his
G
evidence which clearly proved that he was a competent witness.
We also find that Sanjay's statement has been duly
corroborated by the dying declaration made by Jaideo, to
Dadarao PW 2 who had rushed to the spot on being informed
by Sanjay as to what had happened.
H

--
HIMMAT SUKHADEO WAHURWAGH & ORS. V. .379
STATE OF MAHARASHTRA [HARJIT SINGH BEDI, J.]

15. The murder of N.amdeo had been witnessed by PW 4 A
Bhimrao, PW 5 Deokabai and PW 6 Anandrao. Admittedly, PW
4 Bhimrao who was then 13 years of age, was a child witness
and is the grandson of Namdeo. He.deposed that while
accompanying his grandfather to lodge the report with the police
Patil with respect to the earlier murders, they had met Deokabai B
on the way and she too h!'ld accompanied them. They had
thereafter been accosted by all the accused who were armed
with axes and sticks and they had caused injuries to Namdeo
with their weapons. He also deposed that on seeing this, he
had run home, informed his mother a1'out the incident and on . c
account of the panic prevailing in the village, he too was hidden
away till the next morning. We find that the cross-examination of
this witness was very sketchy and riothing fruitful could be elicited
by the defence counsel. Bhimrao's statement also finds
corroboration from the evidence of Deokabai a member of the
0
Gram Panchayat, and Anandrao. It has come in Deokabai's
statement that her house and that of Namdeo were facing each
other. It is, therefore, obvious that her presence was absolutely
natural. She stated that she had witnessed the beating of
Namdeo from a distance of 15 feet. She specifically denied
any relationship with Namdeo or his family but candidly admitted E
that her husband was one of the accused in the case involving
Namdeo and his sons and the accused party in the incident of
1981. Anandrao too repeated the story given by the others and
this witness while in the witness box when called upon to identify
the accused identified six of them. He also denied any F/
relationship or any connection, even a remote one, with the .
complainant party. We, therefore, find that though Bhimrao was
a child witness, he too satisfies the test laid down in the above
mentioned case.
G
16. The learned counsel for the State has also brought to
our notice some observations in the judgment of this court in
Dinesh Kumar vs. State of Rajasthan (2008) 8 SCC 270 with
respect to the evaluation of the evidence of an interested or
relation witnesses. They are:
H
'-
380 SUPREME COURT REPORTS [2009] 7 S.C.R.

A "When the eyewitnesses are stated to be interested and
inimically disposed towards the accused, it has to be noted
that it would not be proper to conclude that they would
shield the real culprit and rope in innocent persons. The
truth or otherwise of the evidence has to be weighed
8 pragmatically. The court would be required to analyse the
evidence of related witnesses and those witnesses who
are inimically disposed towards the accused. But if after
careful analysis and scrutiny of their evidence, the version Y'~

given by the witnesses appears to be clear, cogent and
c credible, there is no reason to discard the same. Conviction
can be made on the basis of such evidence".
17. It is true, as contented, that a transformation has indeed
taken place within the last three or four decades and from the
query ' why should an interested witness be believed ' to ' why
D should such a witness be disbelieved as he is not likely to leave
¥
out the real culprits', reflects the anxiety and utter helplessness
of criminal courts as independent witness tend to turn hostile.
18. We are also aware of the fact that the evidence in most
of these cases is recorded after some delay and that in any
E case if every witness were to give an identical and parrot like
statement, it would smack of tutoring and would lose credibility.
Some inconsistencies are thus bound to arise particularly where
-II' ,.,,...
a large number of victims, witnesses and accused are involved
and the incident itself is spread out over a distance and period
F of time, as in the present case. Moreover, the involvement of a
large number of accused in the present matter is further proved
from the number of murders, the injuries caused, and more
glaringly, in that a reign of terror had been let loose with the
accused making repeated forays into the village, looking for
G more members of the Kolhe family.
,.____.
19. We have also gone through the medical evidence and
find that it fully supports the prosecution's story. The accused
were armed with axes and sticks capable of causing incised
and lacerated injuries. Two lacerated and two incised injuries
H
- '
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 381
STATE OF MAHARASHTRA [HARJIT SINGH BEDI, J.]
~~
~ along with several fractures on the arms and legs were found A
•' on the dead body of Namdeo. Likewise, Babarao had ten
injuries including four incised and six lacerated with four
compound fractures, two on the arms and two on the legs. The
post mortem of Jaideo likewise revealed 14 injuries in all of
which five were incised, four were abrasions-and the remaining B
were lacerated with three compound fractures; two on the leg
and one on the right hand. Dr. Jaiswal PW 7 clarified that these·
"'-'7' injuries could have been caused by the axes and sticks
recovered from the accused.

20. The prosecution story, to our mind, is further fortified c
by the;i ;ecoveries made from some of the accused. As per the
prosecution, two axes had been recovered from the residence
Th .
of Siddhartha accused, on 14 June 1989. These were found
to be stained with human blood of group 'A'. Five bamboo sticks
1
were seized from the house of Anil accused, on 12 h June 1989, D
¥
which were stained with human blood of group 'A' and group
'O'. It has come in evidence that the blood group of Namdeo
was 'O' and that of Babarao and Jaideo was 'A'.
21. In this view of the matter, the argument made by the
defence counsel that there was some delay in the lodging of the E
..-, F.l.R., even if taken as correct, becomes insignificant. On the
contrary, however, we find thatthere is no delay in the facts of
...... 'to
the case. As per the record, after the gruesome murders, PW 3

.. Wasudeo had gone to a nearby village from where he had
telephoned VillageAnjangaonsurji from where the information F
had further been conveyed to police station Akot. The fact that
information of the incident had been received at Akot at 1:00
a.m. is clear from the daily diary entry (Exh.31). In this entry, the
fact that Babarao and Jaipal had been killed also finds mention.
It also appears that at that stage Wasudeo was not aware that G
~-~ Namdeo too had been killed as his murder had been committed
some dist~ri.ce away from his residential house and also away
"' from the venue of the first two murders. It has come in evidence
that the police reached the village within half-an-hour or so on
which the formal F.l.R. had been recorded. It needs reiteration H

'
"
382 SUPREME COURT REPORTS [2009]7 S.C.R.

A that the three murders and the manner in which the members of
the complainant party had been hunted out and killed and threats
had been held out to the other members of the Kol he family as
well, had created an atmosphere of terror in the village and if
the entire investigation on the crucial day did not proceed with
B clock work precisi-on, no adverse inference can reasonably be
drawn from this fact.
22. We accordingly dismiss the appeal.

K.K.T. Appeal dismissed.

•

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