1 apeal647.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 647 OF 2004
1) Datta s/o Debaji Ingle, - (Abated)
Aged about 38 years,
2) Bhiva s/o Debji Ingle,
Aged about 43 years,
3) Jairam s/o Debaji Ingle,
Aged about 46 years,
4) Bharat s/o Narayan Uchade,
Aged about 38 years,
All R/o Shirpur, Police Station
Mahagaon, District Yavatmal. .... APPELLANTS
VERSUS
The State of Maharashtra,
through P.S.O., Mahagaon,
District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri K.S. Narwade, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 4
OCTOBER, 2017
th
ORAL JUDGMENT :
The appellants seek to assail the judgment and order dated 21-9-2004 in Sessions Trial 98/1996, delivered by the learned ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 ::: 2 apeal647.04 Additional Sessions Judge, Pusad, by and under which the appellants stand convicted of offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to payment of a fine of Rs.500/-.
2. Heard Shri K.S. Narwade, learned Advocate for the appellants and Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent.
3. Shri K.S. Narwade, learned Advocate appearing on behalf of the appellants (hereinafter referred to as the "accused") submits that the entire case of the prosecution is based on the testimony of P.W.8 Charan-the brother of the deceased. Concededly, other witnesses who is examined as eye witnesses have turned hostile. Nothing is elicited in the cross-examination of the witnesses who have not supported the prosecution, is the submission. Concededly, there is no corroborative evidence available on record, is the submission. Shri K.S. Narwade, learned Advocate for the accused would submit that the testimony of P.W.8 Charan is unreliable and the cross-examination of the said witness reveals that his very presence on the spot is extremely doubtful. P.W.8. Charan is not a witness to the alleged assault on his ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 ::: 3 apeal647.04 own admission, is the submission. The learned Advocate for the accused would submit that to base the conviction on the testimony of P.W.8 Charan, who is related and interested witness, would be most unsafe and hazardous, particularly since every other witness has turned hostile.
4. In rebuttal, Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent would submit that a related witness is not necessarily an interested witness. The presence of Charan on the spot is most natural and the fact that he is the brother of the deceased would not dilute the probative value of the evidence, is the submission. Shri N.B. Jawade, learned Additional Public Prosecutor would submit that since the testimony of P.W.8 Charan is confidence inspiring, it is of no relevance that the other witnesses have not supported the prosecution. Inviting my attention to the provisions of Section 134 of the Indian Evidence Act, the learned Additional Public Prosecutor would submit that ultimately evidence has to be weighed and not counted.
5. I have given my anxious consideration to the evidence on record and the submissions of the learned Advocate for the accused ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 ::: 4 apeal647.04 and the learned Additional Public Prosecutor for the respondent.
6. The learned Additional Public Prosecutor fairly does not dispute that the case of the prosecution entirely rests on the testimony of P.W.8 Charan-the brother of the deceased. He, however, submits that the testimony of P.W.8 is implicitly reliable and the credibility of the witness is not shaken, in the cross-examination.
7. Before I advert to the evidence of P.W.8, it would be apposite to note the broad contours of the prosecution case. The deceased is one Sanjay Vitthal Hagwane, a resident of village Shirpur, Tahsil Mahagaon. Concededly, the deceased was a fugitive on the run since he was charged with the homicidal death of his maternal uncle Mahadeo Mohkar. The deceased used to hide in the forest in the day time and visit village Shirpur after the evening hours. The deceased used to stay at the house of one Shobha Madhav Ingale. The relationship of the deceased with Shobha is blurred.
8. The case of the prosecution is that on 21-6-1996 at 10-00 a.m. P.W.8 heard the mother of accused Bhiva Ingale shouting that the deceased was being beaten. The version, which is unfolded, in the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 ::: 5 apeal647.04 evidence of the only witness who has supported the prosecution, is that the accused were assaulting the deceased infront of the house of one Tuka Borkar. The deceased was beaten with sticks and accused 4 Bharat was yielding a knife. The accused dragged Sanjay to the house of the police patil and P.W.8 Charan and his mother followed. The deceased was taken to the police station by the accused and at 4-00 a.m. or thereabout, Charan was informed by the police that Sanjay was dead.
9. The english translation of the evidence prima facie appeared to me to be incorrect. I have, therefore, scrutinized the original record and have relied on the vernacular recording of the evidence. In the cross-examination of P.W.8 Charan, an admission is extracted that when he reached the spot, Sanjay was being dragged. The other material admission which is extracted from Charan is that it takes 15 to 20 minutes to reach the house of Tukaram Borkar by Mahur Road. This admission is relevant since the only other way of reaching the house of Tukaram is from the river and what is revealed from the vernacular recording of the evidence is that Charan admits that at the relevant time due to the river water and presence of ipomoea carnia (beshram plant), the access to Tukaram's house ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 ::: 6 apeal647.04 through the river was ruled out.
The first information report which is lodged by P.W.8 Charan is not exhibited for reasons best known to the prosecution. However, the record reveals that the contents of the report were brought to the notice of the witness and were stated to be correct. It is obvious, that the first information report ought to have been exhibited. Be that as it may, since the informant states that the contents of the report are correct, I have perused the contents of the first information report which reveal that the evidence of Charan is at stark variance with the first information report on material aspects. Charan is denying any knowledge about the relationship between the deceased and Shobha Ingale. An attempt to falsely implicate accused 4 Bharat is also apparent. Charan has deposed that accused 4 Bharat was yielding a knife. Apart form the fact that the version is clearly inconsistent with the first information report, the knife was as a fact seized from the trouser pocket of the deceased as is recorded in the inquest panchanama. The medical evidence on record rules out the use of knife as a weapon of assault. On an overall appreciation of the testimony of Charan, I am not persuaded to hold that the testimony is confidence inspiring. The witness is falsified on material aspects and ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 ::: 7 apeal647.04 his presence on the spot is extremely doubtful. At any rate, even on the admission of the witness, when he reached the spot, the deceased Sanjay was being dragged by the accused. This admission implicitly excludes the possibility of Charan having witnessed the assault. The topography which has come on record, and the admissions extracted from Charan, would render it highly improbable that Charan could have witnessed the assault. I agree with the learned Advocate for the accused that in the absence of corroborative evidence, it would be extremely unsafe to base the conviction on the testimony of the brother of the deceased Charan.
10. The judgment and order dated 21-9-2004 in Sessions Trial 98/1996 delivered by the Additional Session Judge, Pusad is not sustainable in law and is set aside. The accused are acquitted of the offence punishable under Section 304 Part II of the Indian Penal Code. Bail bonds of the accused shall stand discharged. Fine paid by the accused, if any, be refunded to them.
The appeal is allowed and disposed of accordingly.
JUDGE adgokar ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:27 :::