Criminal Appeal No. 375 Of 1997 vs Unknown
2010 Latest Caselaw 301 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                       
                         NAGPUR BENCH : NAGPUR




                                                               
    Criminal Appeal No. 375 of 1997

    Appellant     :      The State of Maharashtra, through Police Station Officer,




                                                              
                         Malkapur, District Buldana

                         versus




                                                  
    Respondents :        1) Sanjay Eknath Ingle, aged about 24 years
                               
                         2) Raju @ Rajesh Eknath Ingle, aged about 26 years,

                         Both residents of Vadji, Police Station, Malkapur (Rural),
                              
                         District Buldana
        

    Ms S.S. Jachak, Addl. Public Prosecutor for appellant-State

    Mr Shantaram More, Advocate for respondents
     



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Criminal Revision Application No. 158 of 1997

Applicant : Bahinabai widow of Kaniram Bajar, aged about 60

years, occ: Labourer, resident of Village Wadgi, Police

Station, Malkapur, District Buldana

versus

Respondents : 1) The State of Maharashtra, through Police Station Officer,

Malkapur, District Buldana

2) Sanjay Eknath Ingle, aged about 24 years

3) Raju @ Rajesh Eknath Ingle, aged about 26 years,

Both residents of Vadji, Police Station, Malkapur (Rural),

District Buldana

None appears for applicant

Ms S. S. Jachak, Addl. Public Prosecutor for respondent no.1-State

Mr Shantaram More, Advocate for respondents no. 2 and 3

Coram : A. H. Joshi & A. R. Joshi, JJ

Dated : 16th December 2010

Judgment (Per A.R. Joshi, J)

1. The State of Maharashtra has assailed the acquittal of respondents/

original accused for the offence punishable under Section 302 read with Section 34 of the

Indian Penal Code rendered by the Sessions Judge, Buldana in Sessions Case No. 42 of

1997 vide judgment and order dated 19th July 1997. Bahinabai Kaniram Baja (P. W. 2),

mother of victim Shrirang has similarly challenged the said acquittal by filing Criminal

Revision Application No. 158 of 1997.

2. The incident leading to the prosecution of respondents/accused as could

be gathered from the evidence of P. W. 2 Bahinabai, P.W. 6 Gopal and P.W. 8 Shrikrishna

is that on 4.1.1997 wife of deceased Shrirang was away from matrimonial home as she

had gone to her parents' place and, therefore, P. W. 2 Bahinabai who was residing just

few houses away from the house of Shrirang had gone to his place for cooking food for

Shrirang and his children. She left the place of Shrirang at about 08.30 p.m.

Immediately thereafterafter her son Shrirang came back from Malkapur. When deceased

Shrirang, on his return, was talking with son Shrikrishna (P.W. 8), accused entered the

southern-side room and demanded liquor from Shrikrishna. Deceased Shrirang was

dealing with sale of illicit liquor. When Shrirang was filling liquor in a glass from

container, accused Sanjay gave kick blow to him owing to which Shrirang fell down.

Accused Sanjay then took out razor from his pocket and gave blow on the neck of

Shrirang. After such first blow, accused no. 2 Raju instigated accused no. 1 Sanjay by

saying that in the previous incident, Shrirang had survived, but now he should be

finished. After this accused no. 1 Sanjay gave another blow of razor which fell on the

abdomen of Shrirang. Accused Sanjay then lifted Shrirang and placed him on cot.

Shrirang and Gopal, sons of Shrirang were raising shouts for help, but to no effect. On

her way back, near the house of one Uttam, P. W. 2 Behanabai was intercepted by

Shrikrishna (son of Shrirang) and he informed her that accused Sanjay and Raju had done

away with his father (Shrirang). She, therefore, got back to see that Shrirang was lying

on cot; blood was oozing from his neck and there were bleeding injuries to his ear and

abdominal portions also. She raised hue and cry, but to no avail. Then she went to the

house of Police Patil (Devalsingh, P.W. 2) and apprised him of the incident. Devalsingh

(P. W. 1) went to the house of Shrirang and on seeing his dead body, he left the place

saying that he would make police report.

3. Upon the report lodged by P. W. 1 Devalsingh, police registered Crime No.

3/1997 at about 11.30 hours of 4.1.1997. PSI Barawkar who had taken over

investigation, visited the spot on the same night and took accused in custody. On

5.1.1997 police drew inquest panchanama and spot panchanama in the presence of

witnesses. Incriminating articles were seized. Dead body of Shrirang was sent for post-

mortem. Dr Anil Naik at the Cottage Hospital, Malkapur conducted post-mortem on the

body of Shrirang. Viscera was sent for chemical analysis. Dr Naik opined that death was

due to neurogenic and haemorrhagic shock which was secondary to multiple injuries

found on the dead body of Shrirang. On 5.1.1997 Investigating Officer, PSI Barawkar

recorded statements of witnesses including those of Gopal, Shrikrishna, sons and

Bahinabai, mother of deceased Shrirang. Blood-stained clothes and weapon of offence

viz. Razor were seized at the instance of accused Sanjay under seizure memorandum

prepared by PSI Barawkar on 6.1.1997 in presence of witnesses. Blood-stained clothes

of accused Sanjay viz. Shirt and pant as also razor were sent for chemical analysis. In the

analysis, blood of group "A" was detected on he clothes of accused Sanjay; blood was

detected on the blade portion of razor, but its group could not be detected.

4. During investigation, accused Sanjay was sent for medical examination as

he had sustained minor injury over his right hand thumb. His blood sample was also

taken and sent for chemical analysis. His blood group could not be determined as results

were inconclusive. Blood samples collected from the room where dead body of Shrirang

was found as also found on his clothes were also sent for chemical analysis and it was

found bearing group "A". On requisition from PSI Barawkar, Dr Anil Naik opined that

the injuries found on the dead body of Shrirang could be caused by a weapon like razor.

Statements of some neighbours of Shrirang were also recorded. PSI Barawkar collected

copy of complaint lodged by deceased Shrirang against the accused some time back.

After completion of investigation, police filed charge-sheet against both the accused for

the offence punishable under Section 302 read with Section 34 of the Indian Penal Code

before the Judicial magistrate, First Class, Malkapur who committed the case to the Court

of Sessions for trial according to law.

5. The Sessions Judge, Buldana framed charge vide exhibit 2. It was read

over and explained to accused. They denied the charge and claimed to be tried.

6. During trial, prosecution examined in all nine witnesses including first

informant, mother and sons of deceased Shrirang, medical officer Dr Naik, investigating

officer and other police officials as also pancha witnesses. After recording the evidence

of prosecution, statements of accused persons were recorded under Section 313 of the

Code of Criminal Procedure. No evidence in defence was led. The Sessions Judge

disbelieved the evidence adduced on record by the prosecution and by extending benefit

of doubt, acquitted the accused of the offence with which they were charged. It is this

judgment and order of acquittal which is the subject-matter of challenge in this appeal

and revision which are being disposed of by this common judgment and order.

7. The judgment and order of acquittal was assailed by the State on various

grounds including the following :

(i) The trial Court should have accepted the testimony of P. W. 6

Gopal and P. W. 8 Shrikrishna as trustworthy and corroborating with each

other on the main thread of the prosecution case as to both the accused

assaulted the deceased on the relevant night.

(ii) Minor discrepancies and omissions crept in the evidence of

P.W. 6 and P.W. 8 should not have been given much weight by learned trial

Court and their testimony should not have been discarded though they were

close relatives i.e. sons of deceased.

(iii)

The trial Court should not have discarded evidence of P.W. 6

and P.W. 8 only on the count that there was nothing brought before the Court

by the State as to the clothes of said witnesses had any blood stains.

(iv) The trial Court should have appreciated the evidence of said

P.W. 6 and P. W. 8 mainly considering their tender ages and their mental

condition on witnessing the deadly attack on their father.

(v) The factual position that the prosecution could not produce any

independent evidence so far as involvement of the accused in the said

incident, should not have weighed with the trial Court considering the

avocation of the deceased as running liquor den from his house and as such

considering that the villagers were against him.

(vi) The trial Court should have appreciated evidence of said P.Ws.

2, 6 and 8 considering that they were not on inimical/strained terms with the

accused persons though the relations between accused and deceased were

inimical.

8. By pointing out the above arguments, it is submitted by learned Additional

Public Prosecutor on behalf of the State that the impugned judgment and order is

perverse and contrary to law and facts brought on record and consequently, the same is

liable to be set aside.

9.

In order to appreciate the arguments advanced on behalf of the State in

their proper perspective, certain admitted position is required to be narrated in order to

bring down the scope of the present appeal which is against the acquittal of the accused

persons. Said admitted position is as under :

(i) Homicidal death of Shrirang is not in dispute. Moreso, as to

injuries sustained by him by sharp edged weapon.

(ii) The injuries on the deceased were of such a nature that there

was much loss of blood on the spot and probably the death was instantaneous

due to severe assault.

(iii) There was one incised wound obliquely placed over anterior

aspect of distal part of the right thumb. Its size was 1 cm x 2 mm deep. It

was simple injury. This injury could be caused by hard and sharp object.

The age of the injury was within 6 to 8 hours.

(iv) Blood grouping of the blood sample of accused no.1 could not

be determined as a results were inconclusive as per Chemical Analyser's

Report (exhibit 7) to that effect.

(v) The Razor allegedly recovered at the instance of accused no. 1

Sanjay though had blood stains of human origine, blood group could not be

determined as results were inconclusive as per exhibit 7.

(vi) There are no independent eye witnesses though there were

various hutments and in which villagers were staying and were available at

their hutments during the relevant time of the incident.

(vii) There are only two alleged eye witnesses, P.W. 6 Gopal and

P.W. 8 Shrikrishna who are the sons of deceased Shrirang.

10. Bearing in mind the above admitted position and also bearing in mind the

arguments canvassed on behalf of the State, the reasoning given by learned Sessions

Judge while analysing the substantive evidence of P.W. 6 and P.W. 8 coupled with

substantive evidence of P.W. 1 and P.W. 2 is required to be scrutinised in order to

ascertain whether the impugned judgment and order is perverse and against the law and

facts and whether it is required to be altered and set aside. Apart from this, alleged

recovery of blood stained clothes and weapon at the instance of accused is required to be

scrutinised.

11. Cumulatively, substanive evidence of P.W. 6 Gopal and P.W. 8 Shrikrishna

shows the following situation :

(i) These witnesses are school-going boys, respectively aged

about 12 and 14 years and had been to the school on the relevant day of the

incident i.e. 4.1.1997. The house in which they were residing along with

their father Shrirang is admeasuring 30' x 30' and having four rooms; two

rooms having roof and two rooms without roof.

(ii) There are enumerable houses/huts in the same area of Nirmal

Nagari locality wherein the house of these witnesses situate. There are about

sixty houses/huts. Many of the huts situate in the near vicinity and

surrounding the house of witnesses. Admittedly, most of the houses/huts are

at the hearing distance from the house of thesses witnesses. According to

these witnesses, on the relevant night, they were at home along with their

father deceased Shrirang and earlier their grand-mother P.W. 2 Bahinabai had

been to their house for preparing food and she had just left and thereafter

deceased Shrirang arrived at the house and enquired whether the food was

cooked. At that time, two accused persons entered the house and made

demand for liquor. At that time, Shrirang was sitting on cot. He enquired

whether bottle was brought by the accused persons. Thereafter he took out

empty bottle and started filling it with liquor from can which was kept in the

room. That time, accused Sanjay kicked the deceased. Due to this sudden

impact, glass bottle was thrown on the ground and broke. Due to the kick

blow, deceased fell on the ground. Accused no.1 Sanjay took out one razor

from his pant pocket and gave blow on the neck of deceased causing severely

bleeding injury.

(iii) According to Gopal (P.W. 6), after such first blow was

inflicted by accused no. 1 Sanjay, accused no. 2 Raju instigated accused no. 1

to finish off deceased Shrirang as in the previous incident, Shrirang had

survived. According to P.W. 6 Gopal, after such instigation from accused no.

2 Raju, accused no.1 Sanjay lifted Shrirang from ground and threw him on

the cot and again assaulted him with the help of razor. The second blow was

given on abdomen, again causing severely bleeding injury. According to the

description given by the witnesses there was fountain of blood oozing out

from the injuries.

(iv) As against the above version, as per P.W. 8 Shrikrishna, both

the blows on the deceased were given when he was lying on the ground and

after two blows, Shrirang was lifted and placed on the cot by accused no. 1.

According to these witnesses, they shouted for help and tried to intervene

and save their father. Accused persons manhandled and threw them on the

wall and thereafter both the accused left the house and ran away. P.W. 8

Shrikrishna, the elder son of deceased, ran outside to call his grand-mother

P.W. 2 Bahinabai. He met her near the house of one Uttam Ingle and as such

he was not required to reach till the house of P. W. 2 Bahinabai who was

residing away at a distance of about 1000 feet from the house of deceased.

P.W. 8 Shrikrishna disclosed the incident to his grand-mother and took the

names of both the accused as assailants. P.W. 2 Bahinabai, grand-mother

rushed to the house of her son and found him lying in a pool of blood on cot

and sensing seriousness, she went to Police Patil of village i.e. P.W. 1

Devalsingh and narrated the incident to him. On this, Police Patil also came

down to the house of deceased and noticed the situation and went to Police

Station and lodged report. Said report was treated as First Information

Report.

12. On the aspect of contents of FIR, substantive evidence of P.W. 1

Devalsingh shows that at about 09.00 pm on the date of incident, P.W. 2 Bahinabai,

mother of the deceased came to his house and disclosed that her son Shrirang was

murdered by Raju and Sanju (accused persons) by assaulting him with knife. On this

aspect, substantive evidence of P. W. 2 Bahinabai is to the following effect :

"..... On that day I stayed in the house of Shrirangupto 8 or 8.30 p.m. as Shrirang was to return to the village by the last bus, which comes from Malkapur at about 8.30 p.m. After the arrival of Shrirang to his house I left his house. When I was returning to my house and when I had reached the house of Uttam Baudha, Krishna came to me. Krishna told me that Raju and

Sanju had cut his father. Raju and Sanju are the sons of Eknath Baudha. I know them. The two accused persons present in the Court hall are the same. After hearing this from Krishna I rushed back to the house of Shrirang. Krishna is the son of dseceased Shrirang. After reaching the house of Shrirang I found that Shrirang was lying on the cot and his neck had received bleeding injury. There were injuries on the ear portion and the abdomenal portion also. I raised commotion, but nobody came to the house of Shrirang. Then I went to the house of the police patil. Police Patil was present in his house. I told to him that Raju and Sanju had cut Shrirang...."

Apart from the above substantive evidence of P.W. 2 Bahinabai appearing

in examination-in-chief, in her cross-examination, she has deposed as under :

".... I know Gajanan Bharambe. Krishna told to me that Gajanan Bharambe had told him that Raju and Sanju had assaulted Shrirang. After hearing this I raised hue and cry and I rushed to the house of Shrirang. Nobody on the way

enquired with me as to why I was raising hue and cry. After reaching the house, I found that Shrang was lying dead in the first room of the house."

13. On carefully examining the above substantive evidence of P.W. 2

Bahinabai, it must be said that at one breath she states that Shrikrishna (P.W. 8) informed

her regarding assault and also told her the names of assailants. At second breath, she had

stated that Shrikrishna told her the names of assailants as Raju and Sanju as those names

were told to him by one Gajanan Bharambe. Admittedly, statement of Gajanan

Bharambe was recorded during the course of investigation. However, he has not been

examined by the prosecution to corroborate the version of P.W. 2 Bahinabai. Otherwise,

also had it been a factual position that P.w. 8 Shrikrishna knew the names of assailants

only through said Gajanan Bharambe, then this circumstance falsifies both the alleged

eye witnesses, P.W. 6 and P.W. 8.

14. Apart from the above, there is a discussion entertained by learned Sessions

Judge as to the truthfulness or otherwise of the substantive evidence of P.W. 2 Bahinabai

mainly considering that on arrival of deceased Shrirang at his house, she left the said

house for her house which is 1000 feet away and while on her way, she was stopped by

Shrikrishna (P.W. 8) near the house of Uttam Ingle. We have seen that a reasonable doubt

has been entertained by learned Sessions Judge considering the time-gap between P.W. 2

Bahinabai leaving the house of her son deceased Shrirang and P.W. 8 Shrikrishna

accosting her near the house of Uttam Ingle. From the substantive evidence of P.W. 2

Bahinabai from her cross-examination, it can be gathered that the time-gap between the

two events is hardly of few minutes i.e. the distance she could cross from the house of

her deceased son till the house of Uttam Ingle. In any event, she had not reached her

house which situate at a distance of 1000 feet. As against this, according to substantive

evidence of P.W. 6 and P.W. 8, the assault on deceased Shrirang continued for about

fifteen minutes. Still, giving some allowance in favour of these witnesses on the aspect

as to the duration of incident, still it must be gathered that much time had lapsed since the

arrival of deceased at his house till the conclusion of assault and running away of the

accused persons. Moreso, when various incidents are narrated by these witnesses

regarding arrival of both the accused, asking for liquor, deceased pouring liquor in the

bottle, accused no. 1 kicking the deceased, giving blows by means of razor on the person

of the deceased, both the witnesses tried to intervene, they were obstructed by the

accused persons and were thrown away and dashed against the wall of the house.

15. There is yet another circumstance taken as doubtful by learned Sessions

Judge. On this aspect, according to witnesses, after arrival of their grand-mother P.W. 2

Bahenabai on the scene of offence, they had fallen on the body of their father and so also

P.W. 2 did the same. They also raised shouts, hue and cry and many neighbours had

gathered outside their house. While commenting on this circumstance, it is observed by

the Sessions Judge that had such a situation happened, clothes of these witnesses would

have been smeared with blood. There is nothing brought in the trial by the prosecution

that the clothes of these witnesses were blood stained and said clothes were taken charge

of. This circumstance is also taken as a mitigating circumstance to the case of

prosecution leading to disbelieving the testimony of said alleged eye witnesses. This is

more so when Gajanan Bharambe was not examined by the prosecution though his

statement was recorded during investigation.

16. So far as alleged recovery of knife at the instance of accused no. 1 is

concerned, in view of C.A. Report (exhibit 7) as to there was no determination of blood

group for the blood found on the blade of the razor, said discovery is taken as not

incriminating against accused no. 1. In our opinion, it is rightly so done by learned

Sessions Judge. Though certain allowance can be given in favour of prosecution as to

non-examination of any of the independent witnesses considering the tendency of the

neighbours not to intervene in such serious matters of murder, still considering the

substantive evidence of P.W. 6 and P.W. 8 being vulnerable, lack of independent

corroboration is definitely fatal to the case of prosecution.

17. Another circumstance is also considered by learned Sessions Judge against

the case of prosecution inasmuch as there is no mention in the spot panchanama

regarding finding of liquor in the can and nothing to suggest that there was liquor smell

in the room. This falsifies the case of P.W. 6 and P.W. 8 regarding accused persons

demanding liquor and while deceased pouring liquor in the bottle, the assault started.

18. In view of material contradictions in the evidence of two alleged eye

witnesses and different and anomalous version given by P.W. 2 Behanabai coupled with

the fact that material witness Gajanan Bharambe not examined by the prosecution,

respondents have rightly been given benefit of doubt by the Sessions Judge. There is no

perversity or illegality in the judgment impugned before us. It is well settled that the

appellate court must bear in mind that in case of acquittal, there is double presumption in

favour of the accused. Firstly, the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every person shall be presumed to

be innocent unless he is proved guilty by a competent court of law. Secondly, the

accused having secured his acquittal, the presumption of his innocence is further

reinforced, reaffirmed and strengthened by the trial court. It is further settled by the Apex

Court in various judgments that if two reasonable views are possible on the basis of

evidence on record and one favourable to the accused has been taken by the trial court, it

ought not to be disturbed by the appellate court.

19. In view of the above discussion, we are in full agreement with the view

taken by the learned Sessions Judge. We find no merit in the State appeal and the

revision at the behest of P.W.-2 Bahinabai and the same deserve to be dismissed. Appeal

and Revision are accordingly dismissed. In execution of the non-bailable warrant issued

by this Court, respondents are presently in judicial custody. They be released forthwith if

not required in any other case.

                   JUDGE                                                 JUDGE





    joshi