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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO.349 OF 2015
APPELLANT: Bishnu S/o Pranu Dewangan, Aged
about 54 years, Occu: Labourer, R/o
Masala Toli, Tah. Ramtek, Dist:
Nagpur.
-VERSUS-
RESPONDENT: The State of Maharashtra Through
P.S.O. P. S. Ramtek, Tah. Ramtek,
ig Dist: Nagpur.
Shri S. G. Gadmade, Advocate for the appellant.
Shri R. S. Nayak, Additional Public Prosecutor for the respondent.
CORAM: B.P.DHARMADHIKARI AND A.S.CHANDURKAR, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD: 28-09-2016. DATE ON WHICH JUDGMENT IS PRONOUNCED: 07-10-2016.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
1. The appellant herein takes exception to his conviction for having committed offence under Section 302 of the Indian Penal Code (for short the Penal Code). By judgment dated 31-1-2014 passed by the learned Additional Sessions Judge-3, Nagpur, the appellant has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.500/-.
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2. It is the case of the prosecution that the appellant was residing along with his wife - Shamabai and his daughter Nargis.
Nargis was mentally ill and the appellant was was giving her treatment. On 15-5-2012, the appellant alongwith his daughter had been to the Aurvedic Doctor and had returned back at 1.30 p.m. Between 7 p.m. to 8 p.m. after taking dinner the appellant gave some medicines to his daughter. Nargis took the medicine and thereafter spat out the same. On this ground, the appellant got annoyed on her. He took an axe/hoe from the house and started running after his daughter. In front of the house of one Rekha Mallewar, the appellant gave three blows to Nargis near her neck. After she collapsed there, the appellant returned home and gave blows to his wife. She died on the spot. The appellant kept the axe in the Courtyard and went away on his bicycle. On receiving necessary information, the police conducted investigation. The appellant was arrested. The appellant was charged with having committed an offence punishable under Section 302 of the Penal Code. After the charge was framed, the appellant did not plead guilty and was tried. At the conclusion of the trial, the appellant was convicted in the manner stated herein above.
3. Shri S. J. Gadmade, the learned Counsel for the ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 3/12 appellant submitted that the appellant was not liable to be convicted on the basis of the evidence available on record. He submitted that though it was claimed that there were eye witnesses to the incident in question, the deposition of said eye witnesses did not corroborate the evidence on record. It was submitted that the medical evidence as regards nature of injuries sustained by the deceased did not support the version of the eye witnesses inasmuch as though it was stated by PW-8 Deochand that the appellant had given 2 to 3 blows on the backside of the neck of his daughter, the postmortem report did not indicate any such injuries on the body of the deceased. It was then submitted that the description of the spot as deposed by the witnesses did not match the description as per the spot map at Exhibit-19. Though the appellant was arrested on 16-5-2012 at 1.30 a.m., his clothes that were stated to have blood stains were seized on 17-5-2012 at 2 p.m. The incriminating material though available on the spot on 15-5-2012 was not seized immediately, but the seizure was effected on 16-5-2012 at 6.30 a.m. It was, therefore, submitted that on the basis of the evidence available on record, the conviction of the appellant was liable to be set aside. In support of his submissions, the learned Counsel placed reliance upon the judgments of the Hon'ble Supreme Court in Amar Singh and others ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 4/12 v. State of Punjab AIR 1987 SC 826, Kansa Behera v. State of Orissa AIR 1987 SC 1507 and Vishvash Machhinder Saptal Vs. The State of Union Territory 2016 ALL MR (Cri) 3282.
4. Shri R. S. Nayak, the learned Additional Public Prosecutor for the State supported the conviction of the appellant.
According to him, the deposition of the eye witnesses clearly implicated the appellant and the learned Judge of the Sessions Court was justified in accepting the said evidence. It was submitted that the presence of the eye witnesses was natural and they had no enmity with the appellant. The incriminating material had been seized from the courtyard of the house of the appellant and in absence of any explanation in that regard the appellant was rightly held guilty. The injuries on the body of the deceased were caused by the blows given by the axe. It was, therefore, submitted that the conviction was liable to be maintained. The learned Additional Public Prosecutor relied upon the judgment of the Hon'ble Supreme Court in Vadivelu Thevar Vs. The State of Madras AIR 1957 SC 614.
5. We have heard the learned Counsel for the parties at length and with their assistance, we have also perused the records of the case. Since the case of the prosecution is based on the version of eye witnesses who had claimed to have witnessed the ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 5/12 crime, their evidence is required to be considered first. PW-7 -
Urmila was examined below Exhibit-43. She is the daughter-in-law of the appellant. She has stated that she was residing with her husband and in laws together. Her mother-in-law Shamabai and sister-in-law Nargis were undergoing treatment. She has then stated that on 15-5-2012 after the appellant had returned home from the hospital after giving treatment to Nargis, they had food in the evening. The appellant had given medicine to Nargis, but after taking the same she had immediately spat out the same. This annoyed the appellant and he picked up an axe that was lying in the house. The appellant chased Nargis who went to the courtyard of Rekhabai Mallewar and inflicted blows on her. The appellant then came back and went inside the house and also assaulted Shamabai. This witness then lodged report with the police.
Thereafter said witness was declared hostile. On her cross-examination by the prosecution, she admitted that when the appellant started chasing Nargis, she had tried to stop him, but he did not listen to her. She further stated that the appellant was wearing an orange T Shirt and black pant on that day. In her subsequent cross-examination that was conducted after more than a month, she denied the entire version deposed by her earlier.
Perusal of the deposition of this witness indicates that ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 6/12 though initially she had supported the case of the prosecution, she turned hostile subsequently and thereafter denied having seen anything. It would therefore not be safe to rely upon her sole testimony and it would be necessary to consider if there is any other corroborative evidence on record.
6. The next eye witness examined is PW-8 - Deochand Chaure who was examined vide Exhibit-51. This witness claimed to be the neighbour of the appellant and he stated that at about 8.30 p.m. when he was sitting in the Porch of the house, he saw the appellant chasing his daughter with an axe in is hand. In the courtyard of Rekha Mallewar, the appellant gave two to three blows on the backneck of his daughter. The appellant then returned to his house. The appellant's wife was taking meals in the Porch of her house when the appellant assaulted her. The appellant then left the place by throwing the weapon. In his cross-
examination this witness admitted that the house of Rekha Mallewar was about 100 ft. away from his house and that there was no electric pole in the lane where his house was situated.
From the deposition of this witness, it can be gathered that he had stated that the appellant had given two to three blows on the back neck of his daughter and had also assaulted his wife in the Porch. He admitted that the distance of the house of Rekha ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 7/12 Mallewar was 100 ft. and that there was no electric pole in the said lane.
7. PW-10 Dr. Sachin Uikey was examined below Exhibit-
61. He conducted the postmortem on both the victims. As per the postmortem report of Nargis at Exhibit-14, there was a fracture on the second and third back rib of Nargis and that there were injuries to the lungs. There was also a lacerated wound over the right shoulder and over the base of neck backside. On the question put by the Court, this witness admitted that puncturing of the lungs of Nargis corresponded to the injuries at Sr. Nos.1 to 4 in the postmortem report.
The postmortem report of Shamabai was placed on record at Exhibit-66.
8. From the aforesaid material on record, it can be seen that PW-7 Urmila had not seen actual assault by the appellant on Nargis. This assault was witnessed by PW-8 Deochand who stated that the appellant had given 2 to 3 blows on the back neck of his daughter. If his version about the assault is compared with the medical evidence on record at Exhibit-14, it can be seen that Nargis had various other injuries resulting in fracture of the second and third rib as well as to her lungs. It can, therefore, be seen that the version of PW-8 - Deochand is not consistent with the medical ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 8/12 evidence as regards the nature of injuries on Nargis. As observed by the Hon'ble Supreme Court in Amarsingh and others (supra) if the evidence of the prosecution witness is inconsistent with the medical evidence then unless the same is properly explained, the case of the prosecution would be affected.
9. Another aspect that requires consideration is the fact that PW-8 Deochand had stated that house of Rekha Mallewar was 100 ft. away from his house and that there was no electric pole in the said lane. The incident took place at about 8.30 p.m. The spot map at Exhibit-19 that was prepared by PW-1 Shivcharan indicates the location of the house of the appellant and the house of Rekha Mallewar. However, the house of PW-8 is not indicated therein.
Similarly, the spot panchanama at Exhibit-39 indicates the presence of the house of this witness in the vicinity of the old house of the appellant. There is no material placed on record to indicate existence of two houses of the appellant. It also indicates that the house of the appellant was at a distance of 140 ft. from the house of Rekha Mallewar. Considering the topography brought on record coupled with the fact that the incident took place at 8.30 p.m. without there being any electric pole in the vicinity, a doubt is created with regard to PW-8 Deochand witnessing the incident in question.
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10. The appellant came to be arrested as an accused in the aforesaid crime on 16-5-2012 at about 1.30 a.m. His clothes were seized as per Exhibit-53 on 17-5-2012 at 2 p.m. from the person of the appellant as admitted by the Investigating Officer PW-11.
The seizure report indicates that the orange T Shirt and black full pant worn by the appellant that were seized had blood stains. The report of the Chemical Analyzer at Exhibit-4, however, indicates that on the T Shirt seized from the appellant, there were no blood stains. The Pant seized from the appellant had some blood stains but the blood group could not be determined. Considering the fact that the seizure report at Exhibit-53 indicates blood stains on the T shirt and absence of the same in the report of the Chemical Analyzer is a factor in favour of the appellant. Moreover, it cannot be expected that when the appellant was arrested on 16-5-2012 at about 1.30 p.m. wearing the same clothes, the blood stains were not noticed and that these clothes were ultimately seized from his person only on 17-5-2012 after more than 24 hours from his arrest.
11. Similarly, PW-11 the Investigating Officer admitted that the spot panchanama was not prepared immediately after the incident as it was night and that it was prepared on the next day.
He further admitted in his cross-examination that from the time of ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 10/12 the incident till the preparation of the spot panchanama, the axe was lying on the spot of the incident. The explanation that as the crime was not yet registered, the axe was not seized is hardly convincing. If the incriminating weapon was lying at the site itself near the body of Shamabai, there is no reason whatsoever for not seizing the same immediately after the police came to the scene of the incident. This another circumstance which castes a doubt on the case of the prosecution.
12.ig It can thus be seen that there are various circumstances referred to above that cast a doubt as to the case of the prosecution. If the entire evidence is considered as a whole, it cannot be said that the prosecution has proved its case beyond reasonable doubt. The investigation as done by the authorities has resulted in various aspects going unanswered due to which the appellant would be entitled to the benefit of doubt. The deposition of PW-8 Deochand is not corroborated by the other material on record brought by the prosecution and hence the ratio of the decision of the Hon'ble Supreme Court in Vadivelu Thevar (supra) cannot be made applicable to the facts of the present case.
On this ground, the appellant would be entitled for benefit of doubt and thus, would be liable to be acquitted.
Considering the manner in which the investigation was ::: Uploaded on - 07/10/2016 ::: Downloaded on - 08/10/2016 01:03:19 ::: apeal349.15.odt 11/12 conducted, in the facts of the present case we deem it proper to direct the respondent - State to take appropriate steps in the light of directions issued by the Hon'ble Supreme Court in State of Gujarat Vs. Kishanbhai and others (2014) 5 SCC 108. For reporting compliance, the matter be listed on 3-4-2017.
13. In view of aforesaid, the following order is passed:
(1) The judgment dated 31-1-2014 in Sessions Trial No.343/2012 is quashed and set aside. The appellant stands acquitted of the offence alleged to have been committed by him.
The appellant be released forthwith if his custody is not required in any other matter. The articles seized be destroyed after expiry of the period of appeal.
(2) The criminal appeal stands allowed with no order as to costs.
JUDGE JUDGE
//MULEY//
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