Dashrath D. Tembhurnikar vs State Of Maharashtra
2005 Latest Caselaw 1106 Bom

JUDGMENT

J.N. Patel, J.

1. Heard Mr. A.S. Jaiswal with Mr. R.B. Gaikwad, learned Advocates for appellant/accused and Mr. D.B. Yengal, learned A.P.P. for State.

2. In Sessions Trial No. 43/92 the appellant Deshrath s/o. Daji Tembhurnikar was tried on a charge of having committed murder of Gangabai w/o Jairaj Chahande with a country made hand-gun capable of firing 12 bore cartridge and thereby, committed an offence Under Section 302 of Indian Penal Code. Further, in the course of the same transaction caused injuries to Nitu s/o Jairaj Chahande by means of a stick and thereby committed offence Under Section 324 of Indian Penal Code and being found in possession of country made pistol without licence committed an offence Under Section 3 read with Section 25 of the Arms Act. The Additional Sessions Judge, Gondia by his judgment dated 27.6.1994 acquitted the accused of the charge of having committed offence under Section 302 of Indian penal Code bur instead held him guilty for having committed offence punishable under Section 304 part II of IPC and sentenced him to suffer R.I. for 4 years and to pay a fine of Rs. 1000/-, in default, to undergo R.I. for two months. The trial Court further found him guilty of having committed an offence Under Section 323 IPC for assaulting Nitu PW.2 and sentenced him to suffer R.I. for two months by ordering that the substantive sentences will run concurrently and by giving set off to the appellant Under Section 428 of the Cr. P. Code. The appellant came to be acquitted for the offence punishable Under Section 3 read with Section 25 of the Arms Act. The appellant has challenged his conviction and sentence by preferring Criminal Appeal No. 249/94 whereas the State has come in appeal being aggrieved by the decision of the trial Court in acquitting the appellant/accused for the alleged offence Under Section 302 IPC and also offence punishable Under Section 3 read with Section 25 of the Arms Act.

3. Briefly stated, the prosecution case is that on 2.2.1992 at about 7.30 a.m. at Dakbanglatoli at Risama within the jurisdiction of Police Station Amgaon, District Bhandara, the deceased Gangabai w/o Jairaj Chahande and Bayanabai wife of the appellant/original accused Dashrath Tembhurnikar had a quarrel at the hand-pump where they had gone to fetch water. When the deceased Gangabai and Bayanabai were quarrelling, Nitu s/o Jairaj Chahande P.W.2 intervened in the quarrel in order separate them and while he was bringing her mother deceased Gangabai to their house, the appellant/accused came with a Bamboo stick in his hand and assaulted Nitu PW.2 over his head and on his left flung because of which he suffered bleeding injuries to his head and collapsed on the ground. In the meantime, father of Nitu PW.7 Jairaj s/o Shivram Chahande came there and took him inside the house and he was removed to Government hospital. It is the prosecution's case that in the meantime, the appellant/accused armed with country made hand-gun came towards the house of Gangabai and fired 3 shots, out of which one shot hit Gangabai on her chest and she came to be removed to hospital by her younger sister PW. 1 Sarita and other and then PW. 1 Sarita also went to Amgaon Police station and lodged the report Exh.46. It appears PW. 12 Dr. Lalwani, Medical Officer, who was at the relevant time working in B.G.W. Hospital, Gondia examined Gangabai and found fire-gun injuries on her chest and noticed that blood was coming out from the wound, her X-ray was taken which showed 4 foreign bodies on left side of chest, that Gangabai expired on 2.2.1992 at 1.25 p.m. Therefore, her body was sent for postmortem examination which came to be conducted by Dr. Ingole P.W.4, Medical Officer, KTS Hospital, Gondia who gave opinion that death occurred due to injuries to vital organs, i.e. lung injury due to bullet and firearm pellets. It is the prosecution's case that when Sarita PW. 1 Nitu PW.2 and father of Nitu, Jairam and others had gone to the Police Station, the appellant/accused also reached the Police Station and came to be arrested and hand-gun with 3.12 bore cartridge came to be seized from him.

4. PSI Lambat, who was at the relevant time on duty at Amgaon Police Station recorded the complaint of Sarita and treated it as FIR (Exh.46) and registered Crime No. 9/92 against the appellant for having committed offence under Section 307 and Section 324 if IPC and Head Constable Pathan took entry about PW.2 Nitu's complaint (Entry No. 8/92). According to PSI Lambat, Gangabai was taken to hospital by some persons and Police Constable Khadse was sent along with her for being admitted at B.G.W. Hospital at Gondia. He thereafter visited the spot and prepared the panchnama (Exh.76). He seized the stick sit the instance of the appellant/accused. On his return to Gondia, he learnt that Gangabai had died in the hospital and, therefore, he added Section 302 to the case and seized the clothes of the deceased as per the panchnama (Exh.78). He also seized one washer and four pellets, two bangles and a nose-pin from the hospital which was produced before him by Constable Khadse under panchnama (Exh.79). According to PSI Lambat, on 3.2.1992 the appellant/accused volunteered to show the place where he had concealed the plastic bag containing explosives (gun powder) and at the instance of the accused police discovered one plastic bag containing gun powder from small bushes of teak in a forest nursery which was on Deori road. The Investigating Officer recorded the statements of witnesses and also got their statements recorded Under Section 164 of the Cr. P. C. by the Special Judicial Magistrate. In the course of the investigation, he sent all the materials and articles seized during the investigation to forensic Science Laboratory and after conclusion of the investigation, filed charge-sheet against the appellant/accused.

5. In reply to the charge, the appellant/accused took a plea that he has been falsely implicated in the case at the behest of one Bhaiyalal Sahare who was having illicit relationship with PW. 1 Sarita and that he was objecting to it and that is why taking advantage of the fact somebody shot Gangabai. He has been falsely implicated. He has also stated that Bhaiyalal along with the police officers have filed a false case against him and pleaded that he is not guilty.

6. The trial Court, on conclusion of the trial found that the prosecution has proved that it is the appellant/accused who shot at Gangabai by placing reliance on the evidence of Sarita PW. 1 and Nitu PW.2 but held that though the accused had knowledge that Gangabai would die but for lack of intention on his part he cannot be convicted for an offence Under Section 302 IPC. There is ho dispute over the fact that the appellant/accused is also responsible for causing simple injury to PW.2 Nitu and held him guilty for having committed offence Under Section 323 of IPC and that is how the appellant came to be convicted and sentenced.

7. Mr. A.S. Jaiswal, the learned Counsel appearing on behalf of the appellant/accused, submitted that the prosecution has failed to establish the case against the appellant/accused beyond reasonable doubt. It is submitted that the trial Court itself has not relied upon the evidence of other witnesses though they claimed to be eye-witnesses to the incident but has convicted the appellant/accused by placing reliance on the evidence of PW. 1 Sarita and PW.2 Nitu. It is submitted that their evidence is full of contradictions and omissions in all respects and their evidence itself goes to show that they are not eye-witnesses to the incident. Further, the whole story of the prosecution is full of contradictions and unreliable including the sequence in which the events have taken place till the aggrieved parties and the appellant/accused reached the Police Station and, therefore, on this count alone the appellant deserves to be acquitted.

8. It is submitted that the country made pistol and cartridges alleged to be seized by the police from the appellant/accused is a mystery and the possibility of planting the same at the behest of Bhaiyalal cannot be ruled out as Bhaiyalal who is a journalist was admittedly present at the Police Station and is on inimical terms with the appellant having published 39 articles against the accused which fact is not disputed.

9. Mr. Jaiswal further pointed out to this Court that there is a material inconsistency in the statement of Sarita and other withnesses in so far as the role attributed to the appellant/accused in firing gun shots at the victim is concerned. Even there is inconsistency on the point of distance from which such gun shots were fired and which has come on record in the evidence of Sarita herself that if the appellant/accused has fired gun shots from the house which was at a distance of 90 ft., then her evidence that it was the appellant who fired cannot be relied upon. Further, she has given two versions on the fact of the accused firing gun shots, i.e. from a distance of 3 to 4 ft. and 90 ft. Mr. Jaiswal pointed out that so far as Sarita is concerned, she is on inimical terms with the appellant/accused who objected to her illicit relationship with Bhaiyalal and she is a brought up witness for the very reason that her claim that when she took Gangabai to hospital and went to the Police Station her clothes were stained with blood and the police did not recover the said clothes. It is submitted that the trial Court found her to be a reliable witness merely because it found that she stands corroborated by the fact that she immediately lodged a FIR but the trial Court failed to take note of the fact that her FIR and statement before the Magistrate Under Section 164 Cr. P. C. have been confronted to her and there are serie of contradictions and omissions brought on record. Mr. Jaiswal further submitted that Sarita herself in her cross-examination has admitted the fact that out of the 3 shots fired by the appellant, none hit Gangabai. This itself shows that Sarita was not present at the time the incident took place and the prosecution has failed to prove as to who actually shot Gangabai and, therefore, this is a fit case where the appellant/accused deserves to be acquitted.

10. Mr. Yengal, learned Additional public Prosecutor, submitted that the prosecution has proved the case against the appellant/accused for having committed murder of Gangabai not only by leading evidence of eye-witnesses, namely, Sarita PW. 1, PW.2 Nitu and neighbours which stands corroborated by the FIR, medical and forensic evidence. It is submitted that as stated by the eye-witnesses to the incident, the appellant/ accused after assaulting PW.2 Nitu had gone back to his house and brought hand-gun and fired 3 shots at Gangabai and one of the shots hit her which fact stands corroborated by the medical evidence as pellets were recovered from her body which had damaged the vital organs, like lung, liver, etc. and, therefore, it cannot be said that the appellant only had knowledge that by firing gun shots at Gangabai she is likely to suffer death and lacked intention as held by the trial Court which according to the learned A.P.P. is a wrong approach to the facts of the case by the trial Court who erred in holding that the appellant has committed an offence which would fall under Part II of Section 304 of Penal Code when the intention is quite clear from the fact that the appellant/accused shot at Gangabai as a direct result of which she suffered injuries on the vital parts of her body and, therefore, the decision of the trial Court on this count deserves to be quashed and set aside and the appellant/accused should be convicted for having committed offence Under Section 302 of India Penal Code.

11. Mr. Yengal, learned APP further submitted that the appellant/accused has used a stick as a weapon to assault PW.2 Nitu who has suffered bleeding injuries on his head and though the injuries are simple in nature but as they were caused by stick which has been duly identified by the witness in his evidence, the trial court ought to have convicted the appellant for having committed offence under Section 324 of IPC. Lastly, it is submitted by the learned APP that the appellant was found in possession of handgun and cartridges in contravention of Section 3 read with Section 25 of the Arms Act and as admittedly he was not in possession of any arms licence to possess such a firearm and cartridges, he ought to have been convicted on this count also and, therefore, the Court should allow the appeal by the State.

12. The prosecution in order to prove their case against the appellant/accused in so far as it relates to the genesis of the incident and the manner in which the incident occurred which led to suffering of gun shot wounds by Gangabai and her death, have examined PW.1 Sarita, PW.2 Nitu and the neighbours who claimed to be eye-witnesses. PW.3 Mainabai, PW. 5 Bayabai and PW.6 Janakabat. In so far as quarrel between Gangabai and Bayanabai over fetching water from the bore-well is concerned, does not appear to be much disputed. In so far as the later part of the incident is concerned, in our opinion, the trial court has rightly discarded the evidence of PW.3 Mainabai, PW.5 Bayabai and PW. 6 Jankabai who all claim to be present and witnessed the incident but have fairly accepted in their evidence before the Court that it is only after 11/4 months after the incident their statement came to be recorded by police and thereafter before Magistrate at Gondia. They did no disclose the incident to any person immediately after it occurred or to the police which had visited the spot for all this time. PSI Lambat in his cross-examination particularly in para 8 has also deposed to the effect that the statements of Mainabai PW.3, Bayabai PW.5 and Jankabai PW.6 were recorded for the first time on 3-3-1992 and attempt was made by him to record their statement even before 3-3-1992. However, they were making statements over and above the fact that they were not cooperating in recording their statements and they were trying to narrate the events other than the facts of the incident as if they were tutored and it is only on 3-3-1992 they gave their statements properly and further added that these 3 witnesses were not ready to give their statements before 3-3-1992 and that they were called to the Police Station on number of occasions for recording their statements. At this stage itself, we are of the opinion that PSI Lambat was trying to procure suitable witnesses in favour of the prosecution and this admission on his part itself makes the whole case suspect.

13. Well, let us see as to whether the other 3 witnesses, namely, PW. 1 Sarita, PW.2 Nitu and PW.7 Jairaj, husband of the deceased, by their evidence have been able to establish the case against the appellant/accused. PW. 1 Sarita though in her evidence narrates the incident which started from quarrel between Gangabai and Bayanabai is herself not consistent in her evidence. If her evidence is read as a whole, this witness is not sure as to from where the appellant/accused shot at Gangabai because in her chief she says that the accused fired shots of pistol from a distance of 3 to 4 ft. and Gangabai collapsed on the ground when she received the bullet. In her cross-examination, she deposed that it was from a distance of 90 ft. that the accused fired from his house. In her chief, she has stated that the first two shots were fired at Nitu. Monty and Jairaj which missed and the third one was fired at Gangabai which hit her but in her cross-examination, she has specifically stated that it is a fact that accused from his own courtyard fired 3 shots of pistols and all of them were abortive. Her evidence is full of omissions and contradictions on all aspects of the matter and, therefore, it would be most unsafe to rely on such a witness who had grudge against the appellant/accused who objected to her illicit relationship with Bhaiyalal. The trial Court while relying on her evidence observed that this admission given by PW. 1 Sarita that accused fired 3 shots from his courtyard observed that it must have been given inadvertently by Sarita in her cross-examination. We find that if such an approach in appreciating the evidence is accepted, then it is bound to result in miscarriage of justice particularly when on the basis of evidence of such an unreliable witness, the trial Court is convicting the accused. In our opinion, Sarita's evidence rather goes to show that she was not present at the time of the incident. Further, there is no independent corroboration to her evidence as even her clothes which she claims to have been stained with blood while taking Gangabai to hospital have not been seized by the police and, therefore, considering the contradictions and omissions, we find that Sarita is a brought up witness who might have reached the Police Station after the incident was over.

14. If we examine the evidence of PW. 2 Nitu, who is son of Gangabai, he claims that he got hurt over his head as the appellant/ accused assaulted him with a stick. The possibility of this witness getting injured in trying to separate the quarrel between his mother and Bayanabai cannot be ruled out and as he is an interested witness, his evidence has to be appreciated with caution. His evidence is not consistent with that of his father PW. 7 Jairaj as PW. 2 Nitu claimed that he intervened in the quarrel and separated them and was bringing his mother Gangabai to his house whereas PW. 7 Jairaj husband of Gangabai says that he also separated their quarrel and brought his wife little ahead towards his house but his son was standing near boring pump and PW. 2 Nitu does not speak of intervention of his father at all. There is further discrepancy in their evidence in so far as it relates to the production of gun and cartridges by the accused in the Police Station. PW. 2 Nitu does not even mention of this fact whereas PW. 7 Jairaj specifically states that the accused came to the Police Station at the time they were there and told the inspector in their presence that he came to the Police Station with a view to avoid beating by villagers as he shot Gangabai, his wife and that accused took out three cartridges and one pistol from his pocket and told police officers that he shot Gangabai by his pistol and after about ten minutes thereafter Sarita brought his wife Gangabai to the police station. This has been brought on record as an omission in the cross-examination of PW. 7 Jairaj which shows that he has tried to implicate the appellant/accused by going to the extent of not only supporting the seizure of the fire arm and cartridges but also that the accused stated that he shot Gangabai.

15. There is another glaring disparity which is brought on record by their evidence. Nitu and Jairaj and so also Sarita have stated that Nitu and Jairaj had left for police station first and lodged the report. It is thereafter that Sarita had gone there but this sequence is upset by the evidence of PW. 13 PSI Suresh Lambat. According to him, PW. 1 Sarita Kudwe came to the police station and complained that her sister Gangabai Chahande had a quarrel with Bayanabai and while he was recording complaint (Exh. 46) Nitu and Jairaj Chahande came there. Therefore, in our opinion, it would be most unsafe to rely on the evidence of PW. 1 Sarita and PW. 2 Nitu and so also Jairaj PW.7. Rather their evidence taken together gives rise to reasonable doubt as to what extent their evidence should be believed and relied upon as their evidence does not inspire confidence of the court and their credibility is doubtful.

16. In respect of the seizure of the weapon and discovery of gun powder from the appellant/accused, independent witnesses have not supported the prosecution. The fact. that Bhaiyalal journalist was present in the police station rather indicates that the defence taken by the accused that he has been falsely implicated at the behest of Bhaiyalal does not appear to be improbable and the possibility of the police acting hand-in-glove with Bhaiyalal cannot be ruled out.

17. We, therefore, have no hesitation to hold that the prosecution has miserably failed to prove that it is the appellant-accused who is responsible for causing death of Gangabai by using hand-gun or was in possession of such a hand-gun or cartridges or gun powder as claimed by the prosecution. Therefore, the appellant/accused deserves to be acquitted of all the charges for which he was tried by the trial court and the appeal preferred by the State will have to be dismissed.

18. In the result, the Criminal Appeal No. 249/94 preferred by appellant Dashrath is allowed. The conviction and sentence of the appellant Dashrath Under Section 304 Part II and Under Section 323 of Indian Penal Code is quashed and set aside.

The Criminal Appeal No. 304/94 preferred by the state is dismissed.