Ashok S/O Raghunath Bawane, ... vs The State Of Maharashtra Through ...
2007 Latest Caselaw 754 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Mr. R.M.Daga, Adv. for the Appellants-accused and Mrs. K.S. Joshi, Additional Public Prosecutor for the Respondent-State.

2. This Criminal Appeal is directed against the judgment and order passed by the 2nd Ad-hoc Additional Sessions Judge, Gadchiroli, dt. 25.10.2002 in Sessions Case No. 66 of 2000 whereby all the appellants were convicted for the offence punishable Under Section 302 r/w. Section 34 of the Indian Penal Code and were sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/- in default to suffer further rigorous imprisonment for six months. The prosecution case, in the nutshell, is as follows: On 26.5.2000 complainant Bhojraj Tukaram Dharne (PW 1) (grandson of deceased Eknath Choudhary) was present at his own house situated at Bormala and came to know that his grandfather deceased Eknath was lying near the river and therefore, Bhojraj proceeded towards the river. On the way, he met Pushpa d/o. Pandurang Choudhari (PW 6), who informed him that, at about 10.00 A.M. when she was proceedings towards Gadchiroli town, she saw that appellants Ashok s/o. Raghunath Bawane, Tulshidas s/o. Madhao Meshram and one another person were beating deceased Eknath Choudhari and when she was returning back at about 3.00 P.M., she saw dead body of deceased Eknath. Complainant Bhojraj proceeded further in the direction of the river and found dead body of deceased Eknath lying by the side of river. He also noticed injuries on the head, neck and legs of deceased Eknath.

3. Bhojraj (PW 1) thereafter went to Police Station Gadchiroli and lodged written complaint against the accused persons for committing murder of his grandfather deceased Eknath. On the basis thereof, Crime No. 95 of 2000 was registered for the offence punishable Under Section 302 r/w. Section 34 of the Indian Penal Code. The Investigating Officers, after completing formal investigation, filed charge sheet against the appellants in the Court of Chief Judicial Magistrate, Gadchiroli against the appellants for the offences punishable Under Sections 302 r/w. Section 34 of the Indian Penal Code, who has committed the case to the Court of Sessions for trial of the accused. Charge Under Section 302 r/w. Section 34 of the Indian Penal Code was framed against the appellants, to which all the appellants pleaded not guilty and claimed to be tried. Defence of the accused is of denial.

4. In the instant case, Mr. R.M. Daga, learned Counsel for the appellants, contended that prosecution though has examined number of witnesses, important evidence is of Vachhala Tulshiram Lonare (PW 5) (eye witness), Pushpabai d/o. Pandurang Choudhary (PW 6) (eye witness), Dr. Ashok Fattuji Madankar (PW 4) (who has conducted post mortem examination) and Hansdas Udramji Dhoke (PW 9) (Investigating Officer). So far as the evidence of Namdeo Jairam Khobragade (PW 2) and panch Dilip Manohar Tekam (PW 7) is concerned, since both these witnesses have turned hostile, their evidence neither helps the prosecution nor the defence. Similarly, the evidence of Dayaram Kaodu Wakade (PW 3) is adduced by prosecution to establish presence of all the appellants at the place of incident at the relevant time.

5. Mr. Daga, learned Counsel for the appellants has further submitted that, in the instant case, the testimonies of eye witnesses Vacchala (PW 5) and Pushpa (PW 6) need to be discarded on the ground of inordinate delay of 15 days caused by the Investigating Officer in recording their police statements, though both these women were very much available in the village from the time of incident in question. It is further contended that the Investigating Officer Dhoke has also admitted in his cross-examination that he had not recorded statement of prosecution witness Vacchala on the next date of incident. However, no explanation is given by the Investigating Officer as to why there was an inordinate delay of 15 days caused in recording her statement. Mr.Daga, learned Counsel for the appellants further contended that the same is the situation with another eye witness Pushpa (PW 6). Her Police statement was also recorded after a lapse of 15 days, though she was also very much present in the village. It is submitted that the husband of Pushpa (PW 6) is Police Patil of the village and was well aware of the duties of Police Patil of village. In spite of that, neither the witnesses Vacchala (PW 5) or Pushpa (PW 6) went to the Police Station nor the police came to their houses for recording of their statements. It is, therefore, contended that the evidence of these so- called two eye witnesses is an after-thought and therefore, cannot be believed.

6. Mr. Daga, learned Counsel further contended that, the inordinate delay in recording the police statements of the so-called eye witnesses by the Investigating Officer, in the facts and circumstances of the present case, is fatal to the prosecution and therefore, their testimonies ought to have been discarded by the trial Court as an after thought. Mr. Daga, learned Counsel further argued that, so far as the evidence of Dayaram (PW 3) is concerned, it only discloses that this witness saw that the appellants were present at the spot of incident while he was on his way to Gadchiroli town and when he was returning back to his own village, this witness saw the dead body of Eknath lying on the spot of incident near river. It is, therefore, contended that the testimony of this witness on its own does not establish complicity of the appellants in the crime in question.

7. Mr. Daga, learned Counsel further argued that it is nodoubt true that, as per the testimony of Dr. Ashok (PW 4), there were 14 injuries found on the person of deceased; some of them were contusions and some of them were lacerated wounds. Similarly there were three internal injuries noticed by the Doctor. However, Dr. Ashok failed to opine as to whether the injuries found on the dead body of the deceased were individually or collectively sufficient in the ordinary course of nature to cause death. It is contended that even otherwise the medical evidence only proves the nature of injuries suffered by the deceased, whether such injuries would be caused by the weapons of offence and in the manner, as alleged by the prosecution as well as whether such injuries individually or collectively is/are sufficient in the ordinary course of nature to cause death. However, prosecution has to prove the author of the injuries by adducing independent and cogent evidence.

8. Mr. Daga, learned Counsel vehemently argued that, in the instant case, once evidence of Vacchala (PW 5) and Pushpa (PW 6) is discarded, the appellants deserve to be acquitted and therefore, the finding of conviction recorded by the trial Court cannot be sustained in law and the impugned judgment and order is liable to be quashed and set aside.

9. Smt. K.S.Joshi, learned Additional Public Prosecution for the Respondent-State, on the other hand, has contended that the evidence adduced by two independent eye witnesses namely Vacchala (PW 5) and Pushpa (PW 6) coupled with the medical evidence of Dr. Madankar (PW 4) as well as Dhake (PW 9) (Investigating Officer) prove the prosecution case against the appellants beyond all reasonable doubts. Hence, the finding of conviction recorded by the trial Court is just and proper and is sustainable in law.

10. The learned Additional Public Prosecutor further contended that, in the examination-in-chief, witness Vacchala (PW5) has stated that, on the day of incident, at about 10.00 A.M., she along with one Anil were proceeding towards Gadchiroli town from their vilage Bormala and after crossing the river, she saw that all the appellants were assaulting deceased Eknath. She has further stated in her chief that accused Tulshidas was assaulting the deceased by means of belt, accused Ashok was assaulting by means of stone and another accused was assaulting the deceased by means of stick. She has also stated that, at that time, Pushpa (PW 6) also came there and asked the appellants not to beat the old man. It is contended that, in the evidence of this witness, there are no material omissions or contradictions and therefore, the evidence of this witness is truthful and is also consistent with the prosecution case disclosed in the First Information Report.

11. The Additional Public Prosecutor further contended that Pushpa (PW 6) is another witness who is examined by the prosecution as an eye witness to the incident. In her examination- in-chief, she has stated that, on the day of incident, she was going towards village Gadchiroli for sale of curd. After crossing river, she met one Namdeo Khobragade who told her that three persons are assaulting deceased Eknath in the land of Bala Channawar below Tamarind tree. This witness has further stated in her chief that, when she came forward, she saw that the appellants were assaulting deceased Eknath. Accused Ashok was assaulting the deceased by means of cycle chain, appellant Gajanan was assaulting by stick and appellant Tulshiram was having a clod in his hand. It is further submitted by the Additional Public Prosecution that this witness has further disclosed in his chief that, at about 3.00 P.M. on the day of incident when she was going back to her village, she saw dead body of deceased Eknath lying on the spot of incident which was near the river and she also noticed many injuries on the person of deceased. It is contended that even her evidence is free from material omissions and contradictions and therefore, has been rightly relied on by the trial Court. It is submitted that the testimonies of both these eye witnesses is corroborated by the medical evidence of Dr. Madankar (PW 4). Similarly, the evidence of Dayaram (PW 3) also corroborates the testimonies of eye witnesses and therefore, the finding of conviction recorded by the trial Court against the appellants is just and proper.

12. The Additional Public Prosecutor further argued that merely because there was some delay in recording the police statements of witnesses Vacchala (PW 5) and Pushpa (PW 6), that by itself cannot be said to be fatal to the prosecution. It is further submitted that if the evidence of these two witnesses is otherwise reliable, cogent, it cannot be discarded only on the ground of some delay caused by the Investigating Officer in recording their statements. It is, therefore, contended that the finding of conviction recorded by the trial Court against the appellants for the offence punishable Under Section 302 r/w. Section 34 of the Indian Penal Code is sustainable in law.

13. We have considered the contentions canvassed by the respective counsel and scrutinized the evidence adduced by the prosecution. In the instant case, as already observed, prosecution has examined many prosecution witnesses. However, the prosecution case primarily depends upon the evidence of Dayaram (PW 3), Vachhala (PW 5), Pushpa (PW 6), Dr. Maidankar (PW 4) and Dhoke (PW 9) (Investigating Officer). Since the prosecution case is based on the direct evidence, it will be appropriate at this stage to scrutinize the evidence of eye witnesses.

14. Vacchala (PW 5) is examined by the prosecution as eye witness to the incident. The incident in question, as per the prosecution, had taken place on 25.5.2000 at village Bormala and in the cross-examination of this witness it has come that, on the next day of incident, Police made inquiries with her about the incident. However, her police statement was recorded by the police on 8.6.2000 i.e. after 14 days. This witness in her cross- examination has also stated that she had not disclosed about the incident to anybody which, in our opinion, is an unnatural conduct considering the mindset of a village oriented woman. Looking to the facts and circumstances brought on record by the prosecution in the evidence of this witness, the delay caused in recording the police statement by the investigating officer can said to be fatal to the prosecution and whether it creates doubt about authenticity and truthfulness of the testimony of this witness.

15. In order to consider this aspect, we have scrutinized the evidence of Investigating Officer, who has merely stated in his cross-examination that he did not record the statement of this witness on the next day of incident. However, no explanation whatsoever is given by the Investigating Officer for not recording the police statement on the next day or within the reasonable time. Similarly, there is nothing in the evidence of the Investigating Officer to show that he was prevented from recording the police statement of this witness either on the next day or any time thereafter till her statement was recorded by the police on 8.6.2000. There is nothing on record to show that Vacchala (PW-5) was not present in the village from the time of incident till her statement was recorded. On the other hand, it has come in her cross-examination that police made inquiry with her about the incident on the next day. It is nodoubt true that delay in recording the police statement by the Investigating Officer does not necessarily in all cases would be fatal to the prosecution provided there are legitimate reasons for not doing so till the date on which it is recorded. However, if the Investigating Officer is well aware about the fact that a particular person is the eye witness to the incident and is available for recording his/her statement in village and despite of this fact, if the investigating officer does not record his/her statement for number of days and no explanation is coming forward in the testimony of the investigating officer for the inordinate delay caused, in such a situation the unexplained inordinate delay caused in recording statement of eye witness would be fatal to the prosecution. However, other attaining circumstances are also required to be considered by the Court while concluding this issue one way or the other.

16. Similar is the situation about Pushpa (PW 6) another eye witness examined by the prosecution to prove the charge against the accused. Pushpa (PW 6) is the wife of Police Patil of the village whose job is to help the Investigating Officer in conducting investigation of the crime which takes place within the revenue limits of the village. In the instant case, though Pushpa was available in the village from the day of incident, even then her police statement was not recorded by the Investigating Officer for about 15 days and there is absolutely no explanation forthcoming from the Investigating Officer for not doing so. It is the duty of the Investigating Officer to record the police statements of the eye witnesses, particularly who are available without lapse of time. However, if there is any delay caused in recording the statements of eye witnesses, in that event, it is necessary for the Investigating Officer to give the legitimate reasons which prevented him from recording the statements of such eye witnesses earlier than the day on which such statements are recorded. If the eye witnesses are available and the police also have made inquiries with them on the next day of incident and still their police statements are not recorded by the Investigating Officer for number of days, in such a situation, in absence of any explanation given by the Investigating Officer for the delay caused, the evidence of such witnesses undoubtedly, in our considered view, would create serious doubt about the authenticity and truthfulness of the testimonies of such witnesses and in a given case, the delay can be fatal to the prosecution.

17. In the instant case, there is another circumstance which creates doubt about truthfulness of testimony of Vacchala (PW 5) and Pushpa (PW 6). Witness Vacchala (PW 5) in her examination- in-chief itself has specifically stated that appellant Tulshidas had assaulted deceased Eknath by means of belt, appellant Ashok assaulted by means of stone and another accused assaulted the deceased by means of stick, whereas witness Pushpa ( PW 6 ) has specifically stated in her chief that appellant Ashok had a cycle chain in his hand, appellant Gajanan was armed with stick and accused Tulshidas was having a clod in his hands. There is inconsistency in the evidence of these witnesses in respect of the weapons used by the appellants in the incident of assault. This inconsistency assumes importance in the present case, particularly because there is an inordinate and unexplained delay caused in recording their police statements, though they were present in the village throughout from the time of incident till their statements were recorded.

18. Similarly, the conduct of both these witnesses, in our view, is not the normal human conduct. So far as Vacchala (PW 5) is concerned, though it has come in the cross-examination that police had contacted her on the next day and inquired about the incident, she failed to inform the police about the incident at that time. Not only that, till her statement was recorded by the police, she has not stated about the incident to anybody in the village. If she really would have been an eye witness to the incident, then there was no reason for her not to narrate the incident to the police on the next day itself when police made inquiries with her about the incident. Similarly, the normal human conduct would have been that this witness could have informed other persons in the village about the incident. The very fact that she did not tell to the police about the incident on the next day that she witnessed the said incident even though the police made inquiry with her about the incident creates serious doubt about authenticity and genuineness of the evidence of this witness, which is also inconsistent with the testimony of Pushpa (PW 6) so far as use of weapons by the appellants while assaulting the deceased.

19. Similarly, it is difficult to conceive that Pushpa (PW 6), who is wife of a Police Patil of the village, did not tell about such ghastly incident to her own husband. Keeping mum by witness Pushpa for about 15 days till her statement is recorded by the police, in our view, is highly unnatural conduct and in the light of the other attaining circumstances, same cannot be brushed aside. As already observed hereinabove, the Investigating Officer has not given any explanation whatsoever for the inordinate delay caused in recording the statement of this witness. It is inconceivable that, this witness Pushpa (PW 6), while on her way to Gadchiroli town, saw the appellants assaulting deceased Eknath and even then she did not tell anybody about the incident of assault, particularly when the deceased Eknath as well as appellants were known to her. It is also equally inconceivable that witness Pushpa on her way back from Gadchiroli town to her village though saw dead body of deceased Eknath, kept mum for number of days till her statement was recorded by police and not even told her own husband who was Police Patil of the village at the relevant time. The conduct of Pushpa, in our considered view, is wholly unnatural and creates doubt about truthfulness of her testimony.

20. So far as the medical evidence is concerned, it is a corroborative piece of evidence and discloses the nature of injuries suffered by the deceased, placement of those injuries on the body of deceased and whether such injuries are caused in the manner, as alleged by the prosecution as well as by the weapons alleged to have been used by the assailants.

21. In the instant case, the evidence of Bhojraj (PW 1) (complainant), Dayaram (PW 3) and medical evidence of Dr. Madanlal coupled with the other evidence brought on record by the prosecution, in our considered view, is inadequate to prove the charge of murder against the appellants, particularly when evidence of witnesses Vacchala (PW 5) and Pushpa (PW 6) does not inspire confidence and lacks truthfulness and authenticity and create serious doubt about the prosecution case itself and therefore, the evidence of witnesses Vacchala (PW-5) and Pushpa (PW 6) cannot be relied on. Similarly, the inordinate and unexplained delay caused in recording the police statements of these witnesses, in the facts and circumstances of the present case, in our view, is fatal to the prosecution and therefore, the finding of conviction recorded by the trial Court by placing reliance on the testimonies of these eye witnesses, in our view, is unsustainable in law.

22. For the reasons stated hereinabove, the Criminal Appeal is allowed. The impugned judgment and order dated 25.10.2002 is hereby quashed and set aside. All the appellants be released forthwith, if not required in any other Criminal case.