CRI. APPEAL NO.256.02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.256 OF 2002
Yogesh @ Balya s/o Gajanan Dubey,
Aged about 25 years,
Occupation-Labourer,
R/o. Itwari, Nagpur. .. APPELLANT
.. VERSUS ..
The State of Maharashtra,
through P.S.O. Lakadganj
Police Station, Nagpur. .. RESPONDENT
..........
Shri R.K. Tiwari, Advocate for Appellant,
Ms. T.H. Udeshi, APP for Respondent-State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : APRIL 13, 2017.
ORAL JUDGMENT This appeal takes an exception to the judgment and order dated 10.5.2002 passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No.110 of 1998 thereby convicting appellant-accused no.1 of the offence ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 2 punishable under Section 304-II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years.
2] For the sake of convenience, appellant shall be referred in his original status as an accused as he was referred before the trial court.
3] Prosecution case which can be revealed from the chargesheet and connecting papers thereto may be stated as under :
(a) Geeta Subhedar was resident of Nikalas Temple, Joshiwadi, Itwari, Nagpur. Accused were her neighbours. On 29.5.1997 at around 2.30 pm, complainant asked accused no.3 Gajanan to remove bicycle parked by them in front of her house. That time, accused no.1 Balya alias Yogesh came there and attacked on the informant. He abused and threatened to kill the complainant. She then went inside the house.
(b) On the same day at 5.30 pm, accused nos.1 to 3 rushed to attack the complainant. ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 3 Accused nos.1 and 2 were armed with knives in their hands. Vitthal Sitaram Subhedar and his brother Ramaji Sitaram Subhedar intervened to safeguard complainant Geeta from the attack. According to prosecution, accused nos.1 and 2 Balya and Raja assaulted Vitthal Subhedar and Ramaji Subhedar with knives. The blows were given on chest, abdomen and thigh of Vitthal. Geeta intervened and she also received injury to her middle finger of right hand. Both Vitthal and Ramaji received grievous injuries. They were admitted to Mayo Hospital. Vitthal succumbed to the injuries and died.
(c) At around 6.00 pm, Geeta lodged report with Lakadganj Police Station. Crime No.272/1997 was registered against the appellant for the offence punishable under Section 307 read with 34 of the Indian Penal Code. Later on, after the death of Vitthal, offence under section 302 of the Indian Penal Code was added. Initially, investigation was conducted by PW-11 PSI Raosaheb Vaidya and then was handed over to PSI Bendre. Investigating ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 4 Officer visited the place of occurrence and recorded spot panchanama. Earth mixed with blood and simple earth came to be collected and seized from the spot. Injured were referred to the hospital. On 30.5.1997, PSI Vaidya recorded statement of injured Vitthal.
(d) It appears from the chargesheet that on 30.5.1997 PW-10 Executive Magistrate Ku. Asha Bodhale was summoned to record dying declaration of Vitthal. She visited the hospital and ascertained from the Medical Officer fitness of patient to give his statement. After doctor certified, she recorded dying declaration of Vitthal. Vitthal implicated the accused in the commission of act of assault. On 31.5.1997, Vitthal died.
Accused were arrested. The statements of
witnesses were recorded. On death of Vitthal,
inquest panchanama was drawn. Dead body was sent for postmortem. PW-14 Dr. Vipul Ambade performed postmortem and opined cause of death as shock due to peritonitis due to complication of stab injury to abdomen.
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(e) During investigation, blood stained
clothes of victim were seized. Weapon was
recovered at the instance of accused under Section 27 of the Evidence Act. The said weapon was sent to Medical Officer for opinion. Seized muddemal was forwarded to chemical analyser. After completing investigation, chargesheet was submitted to the court of Judicial Magistrate, First Class, Nagpur, who in turn, committed the case for trial to the Court of Sessions.
4] On committal, charge came to be framed by the trial court vide Exh.7. They pleaded not guilty and claimed to be tried. Their defence was of denial and false implication. They also raised a specific defence that Vitthal Subhedar and his brother attacked the accused with a knife and in that attack, there was a scuffle between injured and the accused and Vitthal received injuries. Accused also submitted that due to dispute over construction of a latrine, they were falsely involved.
::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 6 5] To substantiate the alleged guilt of accused, prosecution examined in all 14 witnesses. Accused also examined one defence witness. On scrutiny of evidence adduced by the parties and taking into consideration statements made on their behalf, trial court came to the conclusion that offence under Section 304-II of the Indian Penal Code has been proved against accused no.1, though offences for which accused were charged with were not established by the prosecution. In consequence thereof, accused no.1 was convicted as stated hereinabove and accused nos.2 and 3 were acquitted of the offences. Being aggrieved by the judgment and order of conviction and sentence, original accused no.1-appellant has preferred this appeal.
6] Heard at length Shri Tiwari, learned counsel for appellant and Ms. Udeshi, learned Additional Public Prosecutor for respondent-State.
7] Learned counsel for appellant vehemently contended that evidence of prosecution witnesses is at variance with the case set out in first information report. It is submitted that complainant, injured witness and ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 7 eyewitnesses have given contrary version to the case projected in first information report and in such situation, evidence of prosecution witnesses should not have been believed by the trial court. Learned counsel submits that first information report being first version of incident has to be given due weightage. In this connection, reliance is placed on the decision of the Hon'ble Supreme Court in Kalyan and others .vs. State of U.P. (AIR 2001 SC 3976).
8] The next contention of learned counsel is that evidence of PW Nos.1, 2, 3, 5 and 9 materially differs not only from First Information Report, but also from dying declaration recorded by Special Executive Magistrate. On the basis of evidence of these witnesses, trial court has acquitted accused no.2 to whom similar role is attributed in First Information Report and wrongly convicted accused no.1. Learned counsel submits that evidence of injured witness is taken as a gospel truth by the trial court. In fact in law, while appreciating the evidence of injured witness, unless the court is satisfied that evidence is truthful, no reliance can be placed even on testimony of injured witness. According to appellant, there is inordinate delay in ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 8 recording statements of material witnesses. Since delay has not been satisfactorily explained, it raises a serious doubt about credibility of the witnesses and also the prosecution case. In this connection, learned counsel relied upon State of U.P. .vs. Madan Mohan and others (AIR 1989 SC 1519) and the State of Maharashtra .vs. Shivaji Shivram Tambe and another (1997 Bom CR (Cri) 897. 9] The third contention on behalf of appellant is that medical evidence is in conflict with oral evidence and it renders the prosecution case doubtful. Learned counsel points out that in postmortem report, nine injuries have been shown by PW-14 Dr. Ambade. Injury nos.2 and 4 are stab wounds over chest and abdomen respectively, whereas injury no.6 is incised wound over left chest. The rest of the injuries are abrasions. It is submitted that, according to prosecution, appellant gave two knives blows, one on chest and another on abdomen. Prosecution witness did not explain rest of the injuries.
10] Another contention regarding medical evidence is that evidence of PW-14 Dr. Ambade would indicate that injury no.4 mentioned in column no.17 of postmortem report ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 9 was sufficient to cause death. Accused had caused damage to large intestine known as sigmoid colon which ultimately resulted into death of the deceased. In cross-examination, Dr. Ambade admitted that injury no.4 could not have caused damage to sigmoid colon and the same was damaged due to some other reason. In view of this conflicting version of the medical officer and for non explanation of other injuries found on the person of deceased Vitthal, submission is that prosecution has suppressed the truth and could not prove the guilt of accused beyond reasonable doubt. In support of the submission regarding deficiencies in medical and oral evidence, learned counsel placed strong reliance on State of Madhya Pradesh .vs. Surbhan (AIR 1996 SC 3345) and Ganpat Kisan Giri alias Nadiwala .vs. State of Maharashtra (1995 (4) Bom CR 128).
11] It is then contended on behalf of appellant that accused examined one witness in support of his defence. Trial court totally ignored the evidence of defence witness, though evidence of defence witness has to be treated in law at par with the evidence of prosecution witness. Factum of long enmity between appellant and prosecution witnesses is also properly not considered by the trial court which was the ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 10 ground to wreak vengeance and falsely implicate the accused. In sum and substance submission is that having regard to the circumstances of the case, trial court ought to have given benefit of doubt to appellant, particularly when accused nos.2 against whom similar allegations of assault appear in first information report was acquitted of the charge.
12] Per contra, learned Additional Public Prosecutor strongly supports the judgment and order of conviction and sentence. She submits that so far as assault on abdomen of Vitthal by means of knife is concerned, evidence is consistent throughout. She submitted that first information report only sets the criminal law into motion and during investigation it was revealed that assault was by accused no.1. Learned Additional Public Prosecutor further submitted that enmity is double edged weapon and it is also possible that accused to take revenge assaulted the deceased with a sharp weapon with an intention to cause his death. It is submitted that trial court has properly appreciated the evidence of prosecution witnesses and as such no interference is warranted in this appeal. ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 11 13] With the assistance of the learned counsel for the parties, this court has carefully scrutinized the evidence of prosecution witnesses and a defence witness. On meticulous evaluation of evidence of complainant, injured and taking into consideration the defence raised by the accused, supported by the defence witness, this court, for the below mentioned reasons, is of the opinion that prosecution could not establish charge against accused beyond reasonable doubt.
14] PW-1 Geeta Subhedar, PW-2 Ramaji Subhedar, PW- 3 Manohar Subhedar, PW-5 Indira Subhedar and PW-9 Sitabai Bhanarkar are the star witnesses for the prosecution. PW-1 Geeta is sister-in-law of the deceased and she is the complainant-first informant. She states that on 29.5.1997 at around 2.30 pm, accused Raju and Balya kept bicycle in her door and she requested the accused to remove bicycle as it was causing inconvenience to her. She states that on that accused started abusing in filthy abuses in obscene language. Evidence of Geeta shows that her brother-in-law Vitthal came there to feed birds. He gave an understanding to accused not to abuse Geeta. Then her brother-in-law lifted the bicycle and kept by the side. All accused ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:10 ::: CRI. APPEAL NO.256.02.odt 12 threatened Vitthal that they would see him. Mother of accused also gave them understanding not to do anything.
In her further evidence she deposed that at around 5.30 pm, Vitthal again came to feed birds. Accused were in search of Vitthal. They were armed with weapons. Vitthal asked accused why they were staring at him angrily. That time accused Raja with leg caused Vitthal to fall down and when Vitthal tried to stand, accused Raja and his father caught hold Vitthal and Balya and present appellant ran towards his house, Balya brought a knife from his house and started assaulting Vitthal by means of knife at his abdomen and stomach. She stated that, that time Ramaji and she herself tried to intervene. Accused Balya deliver knife blows on the hip of Ramaji. She stated that she also received knife blow by Balya on finger of a right hand and received injury. Accused then fled away from the spot. She went to Lakadganj Police Station and lodged report. The said report is at Exh.40.
In the cross-examination, Geeta admits that their relations with the accused were strained since before 15 days of the incident. She also admits that before three weeks, accused had constructed house. They also constructed a latrine at the distance of 4 ft. from the house. ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 13 The dispute over construction is not seriously denied. So far as the first phase of incident is concerned which occurred at 2.30 pm, admittedly no report was lodged by Geeta or anyone else on her behalf. The report relates to the incident which allegedly occurred at 5.30 pm. 15] The omissions elicited in the extensive cross- examination of Geeta are (i) threats were given by Raja and Balya, (ii) occurrence of incident at 2.30 pm, (iii) Vitthal came initially and then his wife Indira came and (iv) Raja with his leg caused Vitthal to fall down the victim, when he tried to get up. In addition to these omissions, Geeta also admitted in her cross examination that she stated before police that accused Balya went to the house, brought a knife and gave blows of knife to the victim. This fact does not appear in first information report. She never stated to police that accused Balya and Raja brought knife from the house and both assaulted Vitthal. In fact, this fact find place in first information report. The evidence of Geeta and first information report Exh.40 clearly indicate that genesis of the prosecution case, as reflected in first information report, is denied by Geeta in her evidence and whatever is stated by Geeta in her testimony is missing in first information report. ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 14 As rightly pointed out by the learned counsel for the appellant, first information report being the first version of the complainant due weightage is to be given to first information report. If due weightage is given then discrepancies between first information report Exh.40 and the evidence of Geeta would be fatal to the prosecution case as Geeta has changed the entire manner of incident in her evidence. In this background, the evidence of Geeta cannot be relied upon.
16] PW-2 Ramaji is another important witness. He is an injured. He states that at 5.30 pm, Vitthal asked the accused to remove bicycle which was kept by them. If evidence of PW-1 Geeta is looked into, she stated that incident of removal of bicycle took place at 2.30 pm and not at 5.30 pm. It means, according to Geeta, in two parts incident took place, first at 2.30 pm and second at 5.30 pm. So far as Ramaji is concerned, he states that at 5.30 pm, accused Balya came behind Raja and Gajanan and gave knife blows to Vitthal. Ramaji intervened to rescue Vitthal and that time Balya gave blows of knife on the chest of Vitthal. As Ramaji tried to intervene, Raja delivered blow of knife on him also. He introduces PW-3 Manohar as a witness ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 15 standing there. It is interesting to note that PW-3 is the husband of complainant Geeta. She no where mentions that her husband was standing there. Manohar is an eyewitness according to the prosecution. In her entire testimony and first information report, complainant is silent regarding presence of Manohar.
17] It appears from the evidence of Ramaji that Geeta prevented Manohar not to entangle with quarrel and save him. This is conspicuously missing in the evidence of Geeta. Ramaji admits that Gajanan had constructed a latrine in a lane and there was a dispute between them and accused on the same.
18] It is pertinent to note that initially this witness has not supported the prosecution and prosecution sought permission to cross-examine this witness. During cross- examination by learned Additional Public Prosecutor, he supported the prosecution, but his version is not consistent and he has given entirely a different story than given by PW-1 Geeta. Ramaji says that Gajanan gave a dash to victim Vitthal, whereas PW-1 Geeta says Raja gave a dash to victim Vitthal. He admits that he heard shouts of beating to ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 16 someone, therefore, he came out of the house and when he came out of the house, he noticed Vitthal in injured condition. This admission belies the evidence of Ramaji on incident. It is further interesting to note from the cross- examination of Ramaji that whatever family members have stated, he informed the same to police. This makes it clear that Ramaji is not a truthful witness. He is changing his version from time to time. Not only this his evidence appears to be hearsay, as at the instance of family members, he gave information to police and on his own admission, he did not witness the occurrence of incident, as he came out of the house after hearing the shouts. 19] Prosecution also relied upon the evidence of PW-3 Manohar, husband of complainant Geeta. He stated that all accused were sitting on the body of Vitthal. Gajanan and Raja caught hold Vitthal and Balya was holding knife in his hand. He then stated that Balya gave knife blow on the chest of victim and also on abdomen. Thereafter, accused left the victim and started assaulting Ramaji. He says that accused attacked him and that time PW-1 Geeta intervened and she gave a dash to Gajanan to save him. PW-1 Geeta is silent and she does not state that Gajanan attacked on her ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 17 husband, she intervened and she gave a dash to save her husband. It can be seen that Manohar made material improvements in the course of evidence. His statement was recorded on 31.7.1997 that is after two months of the incident. The inordinate delay in recording statement is not explained by the prosecution. Investigating Officer PSI Bendre has not been examined. He conducted the investigation in part. The reason for his non examination is known only to the prosecution.
20] PW-5 Indira claims herself to be an eyewitness to incident. She is wife of the deceased. She stated that on 29.5.1997 at 5.30 pm, her husband went to feed the pigeons. When her husband was feeding pigeons, she was cleaning utensils. She came out of the house for throwing water and residuary food. She saw accused Gajanan and Raja talking with her husband. The exchange of words took place between them and accused Gajanan and Raja gave a dash to her husband. She stated that her husband fell down as he lost balance. Accused Raja and Gajanan again caught hold her husband. Accused Balya went to his house, brought knife and then gave blow of knife on the abdomen and chest of her husband. Though in examination-in-chief, ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 18 she states that house of complainant is visible from her house, in cross-examination she admits that house of PW-1 Geeta is not visible from her house. This creates doubt, whether PW-5 Indira had actually seen the occurrence of incident, as stated by her. Even if her testimony is taken into consideration, it is not in consonance with the manner of incident disclosed in first information report and, therefore, her testimony is also not helpful to the prosecution.
21] The next important witness is PW-9 Sitabai. According to prosecution, she is an independent witness. She is wife of PW-6 Ramesh Bhanarkar, a witness on seizure panchanama. According to Sitabai, on the day of incident, she had been to the house of Raju at 5.00 pm to keep her articles. She was sitting at the house of Raju. She stated that accused Balya with the help of knife gave blow on abdomen of Vitthal. Remaining accused caught hold Vitthal. She saw incident from 20 ft. and then left the place. Sitabai no where states that knife blow was delivered by Balya on the chest of Vitthal. She is also silent in her evidence regarding assault on Ramaji and injuries received by Geeta. The presence of this witness on the spot is not confirmed by ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 19 the injured Ramaji in his evidence. It appears from the evidence of Sitabai that her statement was recorded on the next day. Police papers would indicate that statement of Sitabai was recorded on 18.6.1997 that is after 20 days. Delay in recording statement of Sitabai is not explained by Investigation Officer or by Sitabai. In view of unexplained delay in recording statement of this witness, it would not be safe to place reliance even on her testimony. 22] Prosecution placed reliance upon the evidence of four Medical Officers. PW-7 Dr. Shafi Mohd. Khan, who treated PW-1 Geeta, PW-12 Dr. Prakash Malsure, who examined PW-2 Ramaji, PW-13 Dr. Bharat Deshraj, who also examined injured Ramaji and PW-14 Dr. Vipul Ambade, Medical Officer, who performed postmortem. It can be seen from the evidence of Dr. Vipul Ambade that on 31.5.1997, he was Medical Officer on duty at Mayo Hospital. He received the dead body of Vitthal Sitaram Subhedar and conducted postmortem between 1.40 and 2.40 pm. On external examination, he found in all 11 ante-mortem injuries on the person of the deceased. Injury nos.2 and 4 were stab wounds on supraclavical region and abdomen respectively. Injury no.6 is an incised wound. Rest of the injuries are ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 20 contusions and abrasions. It is the defence of the accused that Vitthal was an aggressor. He tried to attack on the accused and in scuffle, Vitthal received injuries of a knife used by him to attack the accused. In view of the specific defence raised by the accused, it was incumbent on the prosecution to explain contusions and abrasions which were found on the body of deceased at the time of postmortem. Prosecution witnesses including eyewitnesses have not explained rest of the injuries.
23] Another anomaly which can be noticed from the medical evidence is brought in the evidence of PW-14 Dr. Vipul Ambade. At one point of time, this Medical Officer deposed that injury no.4 mentioned in column no.17 of the postmortem report was sufficient to cause death, because this injury had caused damage to large intestine known as sigmoid colon which ultimately resulted into the death of deceased. In cross-examination, Dr. Ambade admitted that injury no.4 could not have caused any damaged to sigmoid colon and the same was damage due to some other reason. The admission elicited in the cross-examination of PW-14 Dr. Ambade clearly indicates that even medical evidence is doubtful and not above suspicion. So far as the evidence of ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 21 other medical officers is concerned, as testimonies of injured do not inspire confidence, it would not be necessary to go into their evidence.
24] Now remains the most crucial piece of evidence and that is the dying declaration. Trial court has discarded this piece of evidence and no reliance has been placed on it. The reference to this dying declaration is necessary only with a view to find out whether genesis of the prosecution case which is mentioned in the dying declaration and which is the last word of the deceased is identical to the manner of incident disclosed in first information report and by the witnesses in their ocular testimonies. A quick glance at the evidence of Special Executive Magistrate PW-10 Ku. Asha Bodhale would indicate that she recorded dying declaration (Exh.63) as per the version of the deceased. In this dying declaration, Vitthal had stated that father and sons rushed on them. Both the brothers rushed on them with knives in their hands and father possessed stones in his hand. Balya gave a blow on his abdomen and Raju gave a blow on his chest. Gajanan provoked them and beat him with stone and fist blows. Again a changing version of Vitthal on the genesis of the crime. It is not the case of prosecution that ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 ::: CRI. APPEAL NO.256.02.odt 22 Gajanan had a stone and he provoked accused nos.1 and 2 and beat with stone and fist blows. The story of assault narrated in first information report is not supported by complainant, injured and eyewitnesses. In this background and considering the vital infirmities in the evidence, this court is of the opinion that the conclusion drawn by the trial court is contrary to the evidence on record. Hence, conviction awarded to the appellant-accused deserves to be set aside and accordingly the following order is passed :
ORDER
(i) Criminal Appeal No.256 of 2002 is allowed.
(ii) Impugned judgment and order of conviction and sentence dated 10.5.2002 passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No.110 of 1998 is quashed and set aside.
(iii) Accused-Appellant is acquitted of the offence punishable under Section 304-II of the Indian Penal Code.
(iv) His bail bonds shall stand cancelled forthwith.
(v) Fine, if paid, shall be refunded to the appellant.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:03:11 :::