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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.25 of 2005
1. Bhaurao son of Ramchandra
Dangarkar,
aged 48 years,
2. Pravin sonof Bhaurao
Dangarkar, aged
about 25 years,
3. Prashant alias Parasram son of
Bhaurao Dangarkar,
aged about 23 years,
... [in Jail].
4. Sau. Anusaya wife of Bhaurao Dangarkar,
aged about 40 years,
all residents of village
Pipla Kinkhede,
Tq. Kalmeshwar,
Distt. Nagpur. .... Appellants.
....On bail.
Versus
The State of Maharashtra,
through Police Station Officer,
Saoner Police Station,
Distt. Nagpur. .... Respondent.
*****
Mr. Anil Mardikar, Adv., for the appellants.
Mr. D.B. Patel, Addl. Public Prosecutor for the
respondent.
*****
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CORAM : A.H. JOSHI AND
A.R. JOSHI,JJ.
Reserved on : 13th October, 2010.
Pronounced on : 19th October, 2010.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. Present appellant nos. 1 to 3, and Accused No.5 who are appellant nos. 1 to 4 respectively, Accused No.4 Prafull Bhaurao Dangarkar and Accused No.6 Ku. Pratibha alias Bali Bhaurao Dangarkar were charged in Sessions Trial No. 544 of 1998 for commission of offences punishable under Sections:-
[a] 147 of Indian Penal Code for forming an unlawful assembly on 1st May, 1998 at 2200 hours at village Pipla Kinhede, Tq. Kalmeshwar, Distt. Nagpur, with a common object to assault Madhukar Anjankar and his wife;
[b] 148 of Indian Penal Code for rioting with deadly weapons with a common intention to assault Madhukar Anjankar and his wife Indirabai;
[c] 447 read with Section 149 of Indian Penal Code for committing a criminal trespass on the property of Sau. Indirabai with an intention to assault her;
[d] 324 read with Section 149 of Indian Penal ::: Downloaded on - 09/06/2013 16:33:27 ::: 3 Code for causing hurt to Sau. Indirabai M.
Anjankar by Ubhari ;
[e] 302 read with Section 149 for killing
Madhukar Narayanrao Anjankar by hurling
him into the well;
Alternatively
[f] 324 read with Section 34 of Indian Penal Code for injuring Sau. Indirabai Madhukar Anjankar by beating her with Ubhari, and ig Alternatively [g] 302 read with Section 34 of Indian for beating Madhukar Narayanrao Anjankar and throwing him into the well, which resulted in his death.
2. Accused No.4 Prafful died during pendency of trial and trial abated to his extent.
Trial of Accused No.6 Ku. Pratibha alias Bali Bahurao Dangarkar was separated, as she was juvenile in conflict with law on the date of commission of offence.
3. Upon trial, the learned Additional Sessions Judge, Nagpur, convicted and sentenced the appellants for offence punishable under Sections:-
1. 302 read with Section 149 of Indian Penal Code to undergo life imprisonment and payment of fine of Rs.1000/-, in default, ::: Downloaded on - 09/06/2013 16:33:27 ::: 4 simple imprisonment for six months, and
2. 147 of Indian Penal Code to suffer Simple Imprisonment for two months.
4. The appellants have challenged the Judgment and order of conviction in this appeal.
5. Learned Adv. Mr. A.S. Mardikar for the appellants argued in support of appeal, contending that:-
[a] The Prosecution case does not present a coherent picture.
[b] The incident, which had occurred in the morning, is shown to have irritated the deceased and he has expressed that how long this type of behaviour of the accused be tolerated, however, the prosecution suddenly takes a turn, and at the spur of moment, the accused are shown to have appeared on the scene of occurrence. This story is unconscionable.
[c] The Panchanama and versions of PW 1 Smt. Indira Madhukar Anjankar as well as PW 2 Pushpa Nanaji Gaikwad demonstrate that various witnesses were present. It is not shown as to how anybody had not intervened or why the efforts were not made to save the deceased when thrown into the well when nobody is shown to know that the victim was dead before he was thrown into the well.
[d] According to the prosecution, all accused ::: Downloaded on - 09/06/2013 16:33:28 ::: 5 had deadly weapons, i.e., sticks, with them and they assaulted the deceased as well as prosecutrix, however, the injuries on the person of the deceased do not correspond with the story of prosecution.
[e] PW 1 Smt. Indira Madhukar Anjankar claims in First Information Report as well as in cross-examination about the injuries on her person, however, it is not explained as to why this aspect is suppressed from the Court in the Examination-in-Chief.
[f] If there be some grain of truth of involvement of accused persons, in an effort to strengthen the case, prosecution has painted the case and exaggerated it so much that it is not possible to separate exaggeration and arrive at the truth and hence prosecution evidence may have to be discarded in entirety.
[g] Testimony of PW 2 Pushpa Gaikwad is untrustworthy, as she is not a witness of incident, as can be seen from her cross- examination.
[h] Testimony of PW 1 Smt. Indira Anjankar renders her version unworthy of trust to base conviction, since her version, when taken together, fails to inspire confidence, as it lets out a reasonable doubt about her version being trustworthy ::: Downloaded on - 09/06/2013 16:33:28 ::: 6 and truthful.
6. In support of the appeal, learned Adv. Mr. Mardikar has placed reliance on following precedents:-
[3] Adalat Pandit & another Vs. State of Bihar [2010 (5) SCALE 658], [1] Eknath Gapat Aher & ors. Vs. State of Mah. & ors. [2010 (5) SCALE 334], and [2] Raj Pal & another Vs. State of Haryana [2007 Cri. L.J. 2936].
7. Learned APP Mr. D.B. Patel in reply has supported the Judgment and urged that:-
[1] Minor variations in the testimonies of PW 1 Smt. Indira and PW 2 Pushpa will have to be ignored, as the witnesses are not expected to produce a photo copy of the incident.
[2] The doctrine of Falsus uno, falsus omnibus does not apply in India and hence chaff will have to be segregated from the grains, and when the part of evidence, which can be relied upon as true, needs to be relied upon.
[3] Even if testimony of PW 2 Pushpa is considered to be unworthy or shaky, testimony of PW 1 Smt. Indira is sufficient to support and to sustain the conviction.::: Downloaded on - 09/06/2013 16:33:28 ::: 7
8. To substantiate his contentions, learned APP placed reliance on following reported judgments:-
[1] Ram Dular Rai & others Vs. State of Bihar [(2003) 12 SCC 352], [2] Gangadhar Behera & ors. Vs. State of Orissa [(2002) 8 SCC 381], and [3] Khujji alias Surendra Tiwari Vs. Sate of Madhya Pradesh [(1991) 3 SCC 627].
9. Prosecution has examined in all five witnesses who are described as follows:-
[1] PW 1 Smt. Indira :
Madhukarrao :
Anjankar :
:
[2] PW 2 - Pushpa : Eye-witnesses
Nanaji : [pages 97 to 96]
Gaikwad :
[3] PW 3 - Rajendra :
Babulal : Panch witness.
Dixit. :
[4] PW 4 - Purushottam :
Ramrao : Investigating Officer.
Chaudhari. :
[5] PW 5 - Dr. Chandra- :
kant : To prove Post-mortem
Bhagwanji : Report
Mankar :
10. Entire thrust of the prosecution case is on eye-
witnesses.
::: Downloaded on - 09/06/2013 16:33:28 ::: 811. Heard learned Adv. Mr. A.S. Mardikar for the appellants and learned APP Mr. D.B. Patel for the respondent and perused the evidence and record.
12. After perusal, this Court considers that crucial witness is PW 1 Smt. Indira Anjankar, wife of the deceased.
13. Eye-witness PW 1 Pushpa Gaikwad turns out of lesser significance.ig
14. It would, therefore, be convenient to deal with the testimony of PW 2 Pushpa Gaikwad first, and then the testimony of PW 1 Indira Anjankar.
As to testimony of PW 2 Pushpa Gaikwad
15. Perusal of testimony of PW 2 Pushpa Gaikwad [Exh.46 page 94 onwards of the paper-book] discloses that in the Examination-in-Chief, she narrates the incident as if she is an ocular witness. She claims that she was present in the house at the time of incident, and had seen the incident from her house. Her version, which, according to prosecution, tends to prove the incident, reads as follows:-
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...........Incident of Madhukar occurred on 1.5.98 at about 9.30 to 9.45 p.m., in night.
At the time of incident when I was present in my house I heard that Madhukar told his wife that even if accused persons kill her she will not tell him. Then accused persons came out of house near the gate of their house. Accused Bhaurao was doing the job of making drums and Bandies. Thereafter they collected the drums and then took out the sticks of bandies and went towards the house of Madhukarrao. Then accused persons caught the collar of Madhuar and started beating him and brought him near the well. At the time, lady accused persons were beating Indirabai wife of Madhukarrao. Then, accused persons threw the deceased Madhukar into the well after beating him. .....
......Then accused Prashant came to aside and told that Madhukar has jumped into the well as he was frightened. I do not know anything about earlier incident in between them.
[Quoted from page nos.94 and 95 of the appeal paper-book].
16. In the cross-examination, PW 2 Pushpa Gaikwad admits the following things:-
[1] The incident had occurred in night, but there was dark.
[2] There is no electricity supply. [3] Though gate of the house of the witness is in front of the house of deceased, the window of the house is not on the side of the gate.
[4] She was not present in the door at the time of quarrel, and was near the window of the house.
[5] She does not know whether persons around were sleeping outside their houses due to heat, as there was no electricity supply.::: Downloaded on - 09/06/2013 16:33:28 ::: 10
[6] She admits that she told the Investigating Officer in her statement that she has a suspicion on the accused persons that they must have beaten Madhukarrao.
[7] Quarrel between the accused persons and Madhukarrao was going on for half an hour.
As to testimony of PW 1 Smt. Indira Anjankar
17. In the testimony of PW 1 Smt. Indira Anjankar, she has narrated the incident as to what happened in the morning. She further states that her son told about the incident which had occurred in morning as regards exchange of words between the complainant and the accused persons at the time of fetching water and thereupon husband [deceased]. What she tells in this regard in her deposition reads as follows:-
.....................................
..........Then my husband told me as to why she did not tell me about the same to him. At that time, all the four accused persons came to my house having sticks (Ubhari) in their hands. Mother of accused Prashant and his sister Pratibha also came with them. All of them started beating my husband with the sticks in their hands and bet at head and back of my husband. After beating my husband, they threw him into the well. Thereafter they came on me and bet me also and then ran way. Thereafter persons gathered near my house, and then I went to police station and filed report about the incident. Report now shown to me is the same which bears my signature, it is given as Exh.
55. On the second day, police came and took ::: Downloaded on - 09/06/2013 16:33:28 ::: 11 out my husband from the well.
[Quoted from page no.88 of the appeal paper-book. Important and relevant portion is underlined to highlight the same].
18. In the cross-examination, this witness states, inter alia, as follows:-
2. ...................................... .........At the time of incident, my husband was in the compound of his house and he did not go at the house of accused persons.
It is true that at the time of incident, my husband was telling me that till what time we should bear them and I was pulling back to my husband to our house and telling that RAHUDYA .
It is not true to say that at that time, when I was pulling my husband back to my house, my husband fell down into the well.
Incident of beating to my husband was going on for about 15 to 20 minutes.
All the accused persons bet my husband with Ubhari (Sticks) in their hands.
Each of the accused persons gave 3 to 4 blows of Ubhari to my husband. ....
In the hospital at Savner, Medical Officer has asked me as to how I received injuries, and I told to him that I fell down during night hours because of darkness and received the injuries.
5. ...................................... ..........After hearing the noise of quarrel, about 100 persons were gathered near my house. I cannot tell the names of the persons who gathered there.
[Quoted from page nos.89 and 90 of the appeal paper-book. Sub-paragraphing is done for convenience of reading].
19. Perusal of First Information Report [Exh.55] of the complainant shows the narration of the incident as follows:-
::: Downloaded on - 09/06/2013 16:33:28 ::: 12At about 10.00 O clock in the night, my husband returned home from his labour work.
At that time my son Suraj told my husband about the quarrel picked up by Parasram Dangarkar in the morning at the hand-upup and also about the abuses given to me by him.
Thereupon my husband asked me as to why I had not disclosed the same in the morning itself and how long I would tolerate it.
My husband said to me by coming in the courtyard that those persons would behave forever in the same manner and I should not be afraid of them.
He (my husband) further asked me to be bold while talking with them.
When he was saying so, my neighbours namely 1) Bhaurao Dangarkar, 2) Pravin Dangarkar, 3) Prashant alias Parashram Dangarkar, 4) Praful alias Balya Dangarkar, 5) Wife of Bhaurao Dangarkar and 6) Rbali, the daughter of Bhaurao Dangarkar suddenly rushed at my house by holding Ubharys (wooden stumps) in their hands and suddenly started assaulting my husband by means of Ubharyas.
So I intervened.
At that time those persons also assaulted me on my head, right hand and back by means of wooden stumps.
As a result of it may head got broken and smeared with blood.
The aforesaid four persons, i.e., father and his sons took my husband towards the well situated near the courtyard, by beating him.
That time I intervened and asked those persons not to beat him (my husband).
But those four persons i.e., father and his sons beat me too and pushed me aside.
Thereafter after taking my husband near the well by beating, those four persons threw him into the well.
On hearing the noise of quarrel, the persons from my locality gathered in front of my house.
After throwing my husband into the well by those four persons, they all ran away.
[Quoted from page no.92 of the appeal paper-book. Sub- paragraphing is done for convenience of reading. Underlining is provided to highlight the sentences].
::: Downloaded on - 09/06/2013 16:33:28 ::: 13As to other evidence
20. Post-mortem report discloses two injuries, namely:-
1) Abrasion (Lt.) side face 3 x 2 (Lt.) Hypocondrium 3 1 (Rt.) Scapula 1 x 1 .
2) Contusion on occipital region with sub-
dural haematoma. , and further shows one internal injury corresponding to occipital region as follows:-
Under placed # at occipital region.
[Quoted from page nos.118 and 119 of the appeal paper-
book].
Cause of death is shown to be :-
Cardio-respiratory arrest due to head injury.
[Quoted from page no.121 of the appeal paper-book].
21. Perusal of Spot Panchanama suggests that the dead body was floating, and it was kept floating by villagers by putting ropes etc. Relevant portion contained in the Spot Panchanama reads as follows:-
........................................ .......When the accused persons assaulted and threw the deceased into the well the persons from the village dropped rope by tying bricks to it in order to take the search of the deceased and kept the body of the deceased ::: Downloaded on - 09/06/2013 16:33:28 ::: 14 floating on the service of the water. .....
[Quoted from page no.100 of the appeal paper-book].
22. This Court has examined the sum effect of two testimonies relied upon as ocular evidence.
23. At the outset, it needs to be stated that the testimony of PW 2 Pushpa, when considered in totality, creates a serious doubt about her being an eye-witness.
Her admissions in para 2 of the cross-examination, which are referred to in para 15 herein above, create a doubt as to whether she has really witnessed the incident.
Statement of her son, who was present with her in the house, is not shown to have been recorded by the police, nor he is examined before the Court, may be, he could have been an eye-witness.
24. Spot Panchanama and version of PW 2 Pushpa also suggest that there were many other witnesses, who had come on the spot, and it is not clear as to why a person, who is not an eye-witness, has been introduced as an eye-witness.
Therefore, PW 2 Pushpa loses her status as an eye-witness and her testimony is not reliable.
25. So far as testimony of PW 1 Smt. Indira is concerned, she claimed in Exh.55 FIR that she had stated ::: Downloaded on - 09/06/2013 16:33:28 ::: 15 that :-
[a] She had intervened when her husband was being assaulted.
[b] The accused persons also assaulted her on her head and back by means of wooden stumps, as a result of which, her head was broken and was smeared with blood.
[c] All four accused persons beat her and pushed her aside.
[d] On hearing the noise of quarrel, persons from the locality gathered in front of her house, and all of them ran way after ig the accused persons threw the deceased into the well.
26. In the Examination-in-Chief before the Court, prosecutrix does not confirm all these events narrated by her in First Information Report.
On the other hand, she admits that she had told the Medical Officer in the hospital at Saoner that she had received injuries because she had fallen during night hours because of the darkness.
27. In the cross-examination, PW 1 - Indira states that:-
[a] All the accused started beating her husband while they also beat her. [b] She admits that various persons had gathered in front of the house. [c] Each accused person gave three to four ::: Downloaded on - 09/06/2013 16:33:28 ::: 16 blows of the stick to her husband, while there are no corresponding injuries. [d] Her husband had got provoked when her son Suraj gave account of the incident that had happened in the morning, and PW 1 Indira was trying to pacify him and at this, she suddenly stops.
[e] Moreover, these aspects are the disclosures coming in the cross- examination.
28. It is not clear as to why other witnesses, who were present according to PW 1 Indira, and even according to contents of Pancahama, have not been examined either by the Investigating Officer or before the Court. It is a well recognized position that the volume of number of witnesses does not matter, however, the circumstance, namely when large number of witnesses are available, and ocular evidence was available, why better evidence was not collected and produced, remains an unanswered puzzle.
29. In this situation, the testimony of PW 1 Indira creates a reasonable doubt as to:-
[a] What was the intimidating cause or motive due to which accused persons came forward.
[b] How only two injuries are found on the person of deceased, while according to story of prosecution all accused persons had sticks with them and had ::: Downloaded on - 09/06/2013 16:33:28 ::: 17 started assaulting the deceased; and [c] The injuries on the person of PW 1 Indira have gone unchecked and without the proof thereof being brought. [d] Evidence as to whether accused were medically examined after arrest and whether they too had injuries has remained unexplored.
30. Learned APP Mr. Patel s reliance on the reported Judgment of Hon ble Supreme Court in case of Gangadhar proposition Behera & ors. Vs. State of Orissa [cited supra] for the that the doctrine of Falsus uno, falsus omnibus has no application, does not apply to present case, since it is further held in said case that when the falsity between two statements which is exaggeration or untrue cannot be separated from statements which are being relied upon as truth by the prosecution, evidence will have to be rejected in toto.
31. Therefore, the testimony of PW 1 Indira cannot be reconciled so as to be free from doubt, namely that the the injuries suffered by the deceased are not accidental, and have been authored by all the accused and all the accused assaulted the deceased and done him to death as charged.
::: Downloaded on - 09/06/2013 16:33:28 ::: 1832. In the result, the argument of learned Adv. Mr. Mardikar that the prosecution has failed to prove the guilt beyond a reasonable doubt is found to be well supported.
33. In view of the factual discussion herein above, it is not necessary to refer to various judgments relied upon by the parties, the case being obvious on facts.
34. In the result, appeal succeeds. Judgment and order of conviction and sentence is set aside. The appellant nos. 1 to 3 be set at liberty unless required in any other case. Fine amount be refunded. Bail bonds of appellant no.4 stand cancelled.
JUDGE JUDGE
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