State Of Maharashtra, Through The ... vs Chandrabhan S/O Mahagu Bawankule
2002 Latest Caselaw 1258 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Dhote, learned Additional Public Prosecutor for the appellant, and Shri Gupta, learned Counsel for the respondent.

2. The State has filed the instant appeal against the judgment and order dated 18.10.1989 passed by the Additional Sessions Judge, Nagpur in Sessions Trial No. 70/1996 whereby respondent is acquitted of the offence punishable under Section 302 of Indian Penal Code.

3. The prosecution case, in nutshell, is as follows : The respondent and deceased Ramesh were the residents of village Banpuri and their agricultural fields were adjacent to each other. It is alleged that there was a quarrel between them for taking water from canal. The incident occurred on 6.12.1985. It is alleged that on that day deceased Ramesh was sitting at about 9.30 p.m. to 10 p.m. on the flag post. PW 4 Doma and Raghoba came there and also sat on the platform of the flag post. After taking meal, people of the village normally used to assemble near the flag post for chitchatting. On the day of incident, deceased Ramesh also came and sat on that platform. At the distance of about 60-70 feet from that platform towards West, there was a shop of the respondent. In front of his shop, there was an electric pole having tubelight. At the relevant time, respondent came from the direction of shop and started abusing without naming any person. It is alleged that deceased Ramesh asked the respondent why he was abusing people. To that, respondent told him to keep quiet since he was not abusing him. It is the prosecution case that respondent provoked the deceased. The deceased went towards the respondent and respondent also came towards the deceased. They met near the house of Harishchandra Bawankule. There was a pole, but it had no bulb or tubelight. It is alleged that the respondent gave a blow of large knife on the chest of the deceased. The deceased at once fell down on the ground saying "Melore Bapa". PW 4 Doma and Raghoba, who were present on the flag post, rushed towards him. They saw bleeding injury on the chest of deceased. The respondent fled away from the place with a knife. Deceased Ramesh succumbed to the injuries on the spot. The dead body was brought under a banyan tree. The father of the deceased came on the spot. The brother of the deceased also came there. Police Patil and Sarpanch were called. A report was scribed and forwarded to the Police Station with the brother of the deceased, namely, Ramchandra, on the basis of which an offence was registered.

4. The Police came on the spot. The inquest panchanama as well as spot panchanama were carried out on the morning of 7.12.1985. The dead body of Ramesh was referred to the Medical Officer for post mortem examination. It is alleged that the respondent after the incident went to the house of his relative at Ramtek and made an extra judicial confession to PW 1 Surendra Wadibhasme. PW 1 Surendra Wadibhasme brought him to the Police Station, Ramtek and respondent was arrested in the Police Station, Ramtek. The respondent was interrogated in the presence of panchas and knife was seized at the instance of the respondent. There were blood stains on the clothes of the respondent, which were seized by the Police. The Investigating Officer recorded the statements of witnesses and referred the large knife, clothes of the deceased, blood sample of the respondent and clothes of the accused to the Chemical Analyser and after completion of investigation, charge-sheet was filed against the respondent for the offence punishable under Section 302 of Indian Penal Code.

5. The defence of the respondent in his statement under Section 313 of Code of Criminal Procedure and from the trend of cross-examination of prosecution witnesses is that of false implication in the crime by the prosecution. According to the defence, on the day of incident, after taking meal, the respondent went to bed. At about 11.45 p.m. his wife had gone in the open area to answer the call of nature. She saw deceased Ramesh near her courtyard armed with a knife and under the influence of liquor. The deceased caught hold of her hand. However, wife of the respondent managed to release herself from clutches of deceased and pushed the deceased, with the result deceased fell down on the ground. The deceased thereafter got up and went upto 70-80 feet and fell down near the house of Jago. It is the version of the respondent that he went to the house of Surendra due to fear of the brother of the deceased. He was apprehending that brother of the deceased may assault him and, therefore, he went to Ramtek. Hence, the defence of the respondent is that he is falsely implicated in the present crime.

6. The prosecution in order to prove the offence against the respondent examined PW 1 Surendra Wadibhasme, PW 2 Sulochanabai, PW 3 Ramchandra, PW 4 Doma, PW 5 Dr. Maheshkumar Chaurasiya, PW 6 Bhadu Patil, PW 7 Kanthiram PW 8 Daulat and PW 9 Eknath Khadse. Out of these prosecution witnesses, PW 2 Sulochanabai, PW 4 Doma and PW 6 Bhadu are examined by the prosecution as eye witnesses to the incident.

7. At the outset Shri Dhote, learned Additional Public Prosecutor for the appellant, states that PW 1 Surendra has not supported the prosecution and was declared hostile to the prosecution and, therefore, so far as extra judicial confession alleged to have been given by the respondent is concerned, it would be of little help to the prosecution. However, it is vehemently argued that the evidence of eye witnesses, namely, PW 2 Sulochana, PW 4 Domu and PW 6 Bhadu is consistent with the material particulars of the prosecution case and proves the offence of murder against the respondent. It is contended that evidence of these witnesses is also corroborated by the medical evidence and, therefore, finding of acquittal recorded by the trial Court is bad in law.

8. Shri Dhote further states that PW 2 Sulochana has stated that at the relevant time, she was present in her house and witnessed the incident from her house. It is submitted that in her evidence, she has deposed that at about 9.30 p.m.to 9.45 p.m. the respondent was present in front of his grocery shop and deceased Ramesh was sitting on the platform of the flag post. There were tubelights on the street and she has seen the incident in the light of the tube. Her house is about 40-50 feet from the place of incident. According to her, pole having tube was near the shop of the respondent and another pole having tube was near the temple of Maroti. The temple of Maroti is at the distance of about 240 feet from the flag post. This witness has deposed that respondent was talking to deceased Ramesh from the shop and there was exchange of words going on between them. However, she was not aware the reason for their quarrel. The respondent provoked the deceased. Deceased Ramesh went towards the shop of the respondent and the respondent also came forward to the flag post. Both of them met in front of the house of Harichand. As soon as the respondent came near the deceased, the deceased raised shouts as "Melore Bapa, Melore Bapa" and kept his hands on his chest and returned back. The deceased walked about 20 feet and thereafter fell down on the ground. The other people, who were sitting at the flag host, were at the distance of about 60 feet from the place where the respondent and deceased met with each other and incident had taken place. It is also deposed by this witness that PW 4 Doma and Raghoba came there. This witness had seen injury on the chest of the deceased. According to this witness, after the assault, the respondent was standing there. PW 3 Ramchandra caught hold of hand of the respondent and brother of the deceased rushed to assault the respondent. Thereafter respondent fled away from the place. This witness has further stated in her examination-in-chief that respondent assaulted deceased, but she could not see the weapon with which deceased was assaulted by the respondent.

9. It is contended by Shri Dhote, learned Additional Public Prosecutor for the appellant, that testimony of PW 2 Sulochana is not shaken in the cross-examination and so called omissions and contradictions brought in her evidence by the defence are not material in nature and do not affect the testimony of this witness adversely.

10. It is further contended by the learned Additional Public Prosecutor that PW 4 Doma, another eye witness to the incident, has also given similar version in his examination-in-chief and corroborated the testimony of PW 2 Sulochana. It is submitted that PW 4 Doma has deposed that the respondent was near the pole having tube and deceased went towards him. They met near that pole. There was some talk between them. Respondent all of a sudden gave a blow of large knife on the chest of the deceased. This witness saw the incident in the light of the tube. This witness and Raghoba rushed towards deceased. The respondent left the spot and fled away from the spot immediately after the incident with the knife after the deceased fell down on the ground.

11. The learned Additional Public Prosecutor further submits that PW 4 Doma has given a detailed description about the knife used by the respondent at the time of incident. This witness has deposed that knife had a hole and thread was tied on it. It was about 9 inch long including a handle. It had a handle of iron. It is contended that in the cross-examination of this witness, nothing worthwhile has come to affect testimony of this witness adversely.

12. It is contended by the learned Additional Public Prosecution that similarly evidence of PW 6 Bhadu is consistent with the evidence of other eye witnesses. He has also stated that at the relevant time, respondent was having a knife and he assaulted deceased by means of a knife. The deceased immediately fell down on the ground and respondent fled away from the spot with the knife. It is contended that evidence of this witness is also not shaken in the cross-examination and, therefore, is acceptable and can be relied upon. It is submitted by the learned Additional Public Prosecutor that evidence of the above referred eye witnesses ought to have been accepted by the trial Court.

13. Shri Dhote further submits that evidence of PW 5 Dr. Maheshkumar Chourasiya supports the prosecution case. Dr. Maheshkumar has conducted post mortem examination on the dead body of Ramesh and found the following external injury on the dead body :

"stab wound 1 1/2" x 1/2" penetrating the throat completely on the chest of left side near the nipple and 2" away to the left side from the mid-line in the 5th intercoastal space. Injury was fresh caused by sharp and pointed object. The injury was ante mortem."

14. It is further contended by the learned Additional Public Prosecutor that oral report of the incident was lodged by PW 8 Daulat Bawankule, father of the deceased, which was scribed by Tarachand, Police Patil in the presence of PW 7 Kanthiram. It is contended that report was scribed on the basis of information disclosed to these persons by PW 4 Doma and Raghoba. It is submitted that in the said oral report (Exh. 61) it is mentioned that the respondent dealt a blow by knife on the person of deceased and after the assault, respondent fled away from the spot. It is, therefore, contended that the first information report also corroborates the version of the prosecution. It is also contended that discovery of weapon by the respondent having blood stains and seizure of clothes of the respondent having blood of O Group are the other circumstances, which corroborate the case of the prosecution. It is, therefore, contended that the finding of acquittal recorded by the trial Court is not sustainable in law.

15. Shri Gupta, learned Counsel for the respondent, supports the finding of acquittal recorded by the trial Court and states that the respondent has been falsely implicated in the crime by the prosecution. It is submitted that evidence adduced by the prosecution of eye witnesses is not only contradictory to each other, but same is unreliable and, therefore, cannot be relied upon. It is contended that the oral report was scribed by Police Patil on the basis of information about the incident disclosed by PW 4 Doma and lodged by PW 8 Daulat. It is contended that from the oral report (Exh.

51) it is clear that PW 4 Doma was not present when the incident had taken place. The oral report (Exh. 51) reveals that PW 4 Doma and Raghoba had seen the respondent running away with the knife from the spot. There is no mention in the report (Exh. 51) that Doma or Raghoba had seen the incident. The prosecution has not examined Raghoba. It is contended that these recitals in the oral report (Exh. 51) totally falsify the claim of PW 4 Doma about his presence at the scene of offence at the time of assault and, therefore, PW 4 Doma is not the person, who had witnessed the actual assault. Therefore, oral report (Exh. 51) as well as evidence of PW 4 Doma create grave suspicion in respect of incident of assault and cannot be relied upon.

16. It is further contended by the learned Counsel for the respondent that evidence of PW 2 Sulochana is also unreliable and the trial Court was justified in rejecting her testimony. It is submitted that this witness, even otherwise, could not see the weapon by which alleged blow was given by the author of the injury because of insufficient light. It is contended that the pole having tube, which was near the shop of the respondent as well as near the house of PW 2 Sulochana was about 60 feet away from the spot of incident and, therefore, it was not possible for her to witness the incident and, therefore, this witness has correctly stated in her evidence that she could not see the weapon of assault. It is specifically stated by this witness in her evidence that before actual assault, there was exchange of hot words between respondent and deceased for sometime and it is only thereafter actual assault had taken place. It is further deposed that after injury was received by the deceased on his chest, deceased walked about 20 feet and then collapsed. Similarly, according to this witness, respondent has remained on the spot after assault and when PW 3 Ramchandra tried to catch hold of him, he ran away from the spot. It is contended by the learned Counsel for the respondent that all these facts are not stated by the other eye witnesses and the evidence of other eye witnesses does not support the version of PW 2 Sulochana in this regard. It is contended that apart from this, there are material omissions in the evidence of this witness, which affect her ocular testimony and the trial Court was justified in rejecting the evidence of this witness.

17. Learned Counsel Shri Gupta states that as far as evidence of PW 4 Doma, the other eye witness examined by the prosecution is concerned, his very presence at the time of assault is doubtful in view of recitals in the first information report wherein it is specifically stated that PW 4 Doma has only seen the respondent running away from the spot with a knife. It is, therefore, contended that evidence of this witness is not reliable and cannot be relied upon. Similarly, this witness has given altogether a different version than that of PW 2 Sulochana. PW 4 Doma has deposed that respondent all of a sudden gave a blow by a large knife on the chest of deceased and the deceased immediately fell down on the ground. This witness has not deposed that respondent and deceased were abusing each other before the actual incident of assault as well as deceased walked about 20 feet after the assault. It is contended that this witness is alleged to have seen the assault from quite distance and even then he has given a detailed description of the knife in minute details, which shows enthusiasm and eagerness of this witness to implicate the respondent falsely in the crime. It is contended that contradictions and omissions finding place in the evidence of this witness are of material nature and create a serious doubt about authenticity of evidence of this witness.

18. Shri Gupta, learned Counsel for the respondent, states that as far as evidence of PW 6 Bhadu is concerned, same is also not consistent with the evidence of PW 2 Sulochana. It is contended that as per evidence of this witness, after respondent gave a blow on the chest of deceased, deceased fell down and respondent fled away from the spot with a knife in his hand. The learned Counsel submits that this fact is inconsistent with the version of PW 2 Sulochana. Similarly, there are innumerable omissions of material nature in the testimony of this witness, which affect his evidence adversely and, therefore, trial Court is justified in rejecting the same.

19. It is submitted by the learned Counsel for the respondent that even as per prosecution case, there were only two poles on which tubes were burning. One is near the shop of the respondent as well as house of PW 2 Sulochana, which is at the distance of about 60 feet from the spot and the other pole was in front of Maroti temple, which is about 240 feet away from the spot. It is contended that because of distance between these poles and spot, the light at the relevant time near the spot was insufficient and, therefore, it was not possible for the witnesses to identify author of the crime. It is submitted that this fact to some extent is supported by the evidence of PW 2 Sulochana, who has admitted that because of darkness, she could not see the weapon alleged to have been used by the author of the crime and, therefore, evidence of this witness creates doubt about actual assault.

20. It is further contended by the learned Counsel for the respondent that evidence of eye witnesses being inconsistent with each other, has rightly been discarded by the trial Court. It is submitted that discovery of knife from the respondent has rightly been rejected by the trial Court in view of the fact that memorandum of seizure was written after knife was produced. It is further submitted that since evidence of prosecution witnesses is doubtful, the medical evidence on its own is not sufficient to hold the respondent guilty for the offence under Section 302 of Indian Penal Code and, therefore, trial Court is justified in acquitting the respondent.

21. It is vehemently argued by the learned Counsel for the respondent that this is an appeal against acquittal and, therefore, unless finding of acquittal recorded by the trial Court is totally perverse and unsustainable in law, this Court normally does not interfere. It is submitted that in view of inconsistent evidence adduced by the prosecution, doubt is created in the mind of the Court about its truthfulness and, therefore, trial Court is justified in acquitting the respondent and finding of acquittal is sustainable in law.

22. We have given our anxious thought to the various contentions canvassed by the respective learned Counsel for the parties and also perused the evidence on record. In the instant case, though prosecution has examined as many as nine prosecution witnesses, however, material evidence is of PW 2 Sulochana, PW 3 Ramchandra, PW 4 Domu and PW 6 Bhadu. These are the eye witnesses to the incident in question. Since PW 1 Surendra has not supported the prosecution case in respect of extra judicial confession alleged to have been made by the respondent, the same is of no help to the prosecution. In order to ascertain whether prosecution has succeeded or not in proving the charge of murder against respondent, it will be proper for us to scrutinise the oral report (Exh. 51) lodged by PW 8 Daulat as well as evidence of eye witnesses.

23. The report (Exh.51) though is lodged by PW 8 Daulat, same is scribed by the Police Patil of the village, who is not examined by the prosecution, in the presence of Sarpanch of the village - PW 7 Kanthiram Deshmukh. The evidence of PW 7 Kanthiram reveals that incident had taken place on 6.12.1985. At the relevant time, he was working as Sarpanch of the village. At about 9 p.m.-10 p.m. PW 8 Daulat and PW 3 Ramchandra came to his house and asked him to accompany them. This witness went with them to the spot and saw Ramesh was lying dead having injury on his chest. This witness has stated that PW 8 Daulat dictated a report and it was scribed by Tarachand, Police Patil. PW 8 Daulat put his thumb impression. In the cross-examination of this witness, he has admitted that this witness, Tarachand, Ramchandra and Daulat were present when the report was scribed. In the presence of this witness, PW 8 Daulat enquired from Raghoba, PW 4 Doma and PW 2 Sulochana in respect of incident in question. Then all these persons went to the office of Gram Panchayat and report was scribed as dictated by Daulat in the Gram Panchayat. From the evidence of this witness, it is clear that information about incident of assault was disclosed to PW 8 Daulat by Raghoba, PW 4 Doma and PW 2 Sulochana and on the basis of such information, PW 8 Daulat dictated the oral report, which was scribed by the Police Patil and lodged in the Police Station, which is at Exh. 51. The evidence of PW 8 Daulat shows that he reached the spot of incident when Sulochanabai, Doma, Raghoba and other persons were already present there and he learnt on the spot that respondent assaulted deceased Ramesh with a large knife. The respondent was not present on the spot when this witness reached the spot. This witness has deposed that the report was scribed either by Sarpanch or Police Patil. From the evidence of this witness, it is clear that he was not present at the time of incident and he reached the spot only after incident was over and witnesses Sulochana, Doma and other persons had already gathered near the spot of incident.

24. In view of the evidence of PW 7 Kanthiram and PW 8 Daulat, it can safely be inferred that the information about the incident was disclosed to PW 8 Daulat by PW 4 Doma, Raghoba and PW 2 Sulochana and on the basis of the said information, PW 8 Daulat dictated the report, which was scribed by the Police Patil. The recitals in the report (Exh. 51) reveal that two persons, i.e. Doma s/o Hagru Ghavade and Raghoba s/o Hagru Bawankar had seen the respondent when he was running away from the spot with a knife. This sentence in Exh. 51 is very pertinent and speaks volumes about presence of PW 4 Doma at the time of assault. In view of this specific sentence in the oral report (Exh. 51), which is first in point of time lodged by PW 8 Daulat, it is clear that PW 4 Doma came on the scene of offence at the time when respondent was running away from the spot with a knife and, therefore, it falsifies the claim of PW 4 Doma that he was present on the spot at the time of assault and witnessed the incident of assault. If PW 4 Doma is the person, who had given the information about the incident to PW 8 Daulat and if he really had witnessed the incident, he would not have forgotten to disclose this fact to PW 8 Daulat and PW 8 Daulat also would not have failed to mention this aspect in the report (Exh. 51). On the other hand, the recitals in Exh. 51 indicate that PW 4 Doma reached the spot of incident after the assault and at the time when respondent was running away from the spot with the knife. On the backdrop of these vital facts, a doubt is created about truthfulness not only in respect of recitals in the report (Exh. 51), but also the claim of PW 4 Doma that he had witnessed the incident of assault. This aspect demonstrates the anxiety of prosecution to involve the respondent in the crime in question.

25. PW 2 Sulochana is alleged to have witnessed the incident from her house, which is admittedly about 60-70 feet away from the spot of incident. It is not in dispute that at the relevant time there were two poles on which electric light was burning. One is near the shop of the respondent at the distance of about 60 feet from the spot and other in front of Maroti temple, which was about 240 feet away from the spot of incident. It has come in the evidence of PW 2 Sulochana that because of darkness, she could not see the weapon of assault alleged to have been used by the respondent. It is pertinent to note that PW 2 Sulochana in her ocular testimony has specifically stated that there was exchange of hot words and some altercations had taken place between deceased and respondent before actual incident of assault and after the blow of knife given by the respondent, deceased walked about 20 feet and then fell down. Similarly, respondent was standing on the spot after incident of assault. PW 3 Ramchandra thereafter tried to apprehend the respondent and, therefore, respondent fled away from the spot with the knife. This version of PW 2 Sulochana is not supported by other eye witnesses. The fact is that because of insufficient light, this witness could not see the weapon. In a situation like this, it is very difficult for us to believe that she could have seen the attempt alleged to have been made by the respondent for giving such a blow. The evidence of this witness to some extent establishes the fact that light near the spot was insufficient. The inconsistent version given by this witness as well as omissions, which are finding place in her evidence create a serious doubt about truthfulness of ocular testimony of this witness and the trial Court, in our view, was justified in not placing reliance on the testimony of this witness.

26. So far as evidence of PW 4 Doma is concerned, we have already observed that in view of recitals in the report (Exh. 51), presence of this witness at the time of assault is highly doubtful and if the evidence of this witness is evaluated on the backdrop of above facts, we feel that it is also inconsistent with the version of PW 2 Sulochana. This witness has not deposed that deceased after the incident of assault walked some distance and then fell down. On the other hand, according to this witness, respondent left the spot and fled away from the spot immediately after the incident with the knife. Both these aspects are inconsistent with the evidence of PW 2 Sulochana. Similarly, the detailed description of knife given by this witness clearly shows his anxiety to implicate the respondent. At the time of incident, it was dark and light also was insufficient at the spot of incident and this witness is alleged to have seen the incident from some distance. In a situation like this, it is difficult for us to appreciate as to how this witness could see even the small hole on the knife as well as thread. As we have already observed hereinabove, presence of this witness itself is doubtful in view of recitals in the report (Exh. 51). The inconsistent version given by this witness in his evidence as well as omissions and contradictions appearing in his evidence create serious doubt about authenticity of the ocular testimony of this witness and the trial Court, in our view, was justified in rejecting the evidence of this witness.

27. So far as PW 6 Bhadu Patil is concerned, there are omissions in his evidence, which have direct bearing on his testimony. This witness claimed to have stated before the Police that PW 4 Doma, Raghoba and Jago were present at the flag post. However, he could not assign any reason why this fact was not mentioned in his statement. It is pertinent to note that this witness has for the first time introduced in his examination-in-chief that witnesses Doma, Raghoba and Jago were present with him on the platform. However, he omitted to mention this in his statement before the Police, which, in our opinion, is a material omission and creates doubt either about presence of this witness on the spot or other eye witness PW 4 Doma. This witness in his examination-in-chief has introduced altogether different prosecution case. According to this witness, quarrel between respondent and deceased had taken place because of some dispute regarding distribution of water of canal. This aspect is totally inconsistent with the version given by other two eye witnesses in this regard. Even otherwise, there is an omission in this regard in the Police Statement which, in our view, is material in the facts and circumstances of the present case and creates a serious doubt about his ocular testimony in respect of incident of assault. There are quite a few other omissions in his evidence which, in our considered view, affect credibility of testimony of this witness.

28. In the instant case, evidence of so called eye witnesses is not only inconsistent with each other, but the same is also not free from doubt and further creates serious doubt about authenticity of their ocular testimonies and the trial Court, in our view, was justified in not placing reliance on the evidence of these witnesses. The discovery made by the respondent under Section 27 of the Evidence Act cannot be said to be a discovery in law since memorandum as well as seizure memo were written after knife was produced by the respondent and, therefore, procedure adopted by the Investigating Officer is inconsistent with the procedure contemplated under Section 27 of the Evidence Act and, therefore, same also, in our view, does not support the case of the prosecution.

29. It is no doubt true that Medical Officer PW 5 Dr. Maheshkumar Chourasiya conducted post mortem examination on the dead body of Ramesh and noticed the above referred injury on the person of the deceased. However, it must be born in mind that medical evidence is a corroborative piece of evidence in order to lend corroboration to the material particulars disclosed by the prosecution witnesses in order to prove the offence charged against the accused and that by itself does not further the case of the prosecution and, therefore, only on this piece of evidence, conviction cannot be recorded. Similarly, we cannot turn the nelsons eye to the fact that this is an appeal against acquittal and it is well settled that in an appeal against acquittal, on re-consideration of evidence of prosecution, even if view other than the view taken by the trial Court is possible, the view which is in favour of the accused should be taken. Similarly, this Court should be slow in interfering with the finding of acquittal unless the finding of acquittal is totally perverse and de hors of the evidence adduced by the prosecution. Keeping this legal position in mind coupled with the above referred evidence of prosecution, in our considered view, no interference is called for. The appeal is, therefore, dismissed.