Sunil Bisandatt Kaushik vs The State Of Maharashtra
2010 Latest Caselaw 128 Bom

                                                                              1apeal-369-10

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                        CRIMINAL APPELLATE JURISDICTION




                                                                               
                                                       
                     CRIMINAL   APPEAL   No.  369  of 2010.




                                                      
    Sunil Bisandatt Kaushik,
    age 51 years, Occupation
    residing at Damdarna
    Mohataha Tal. Jagjar,




                                          
    District Rohatak, Haryana
    now residing at Foneka
    Company, Vasind
                          
    (presently lodged at Adharwaid
    Central Prison,Kalyan)                      .. Appellant. (Orig. accused No.1) 
                         
               Versus
      

    The State of Maharashtra  ]      ..         ..  Respondent.
   



    Mr  S.R. Chitnis, Sr. Advocate i/by Mrs Vrishali Raje, Advocate, for the 
    Appellant.





    Mr S.S.Pednekar, Additional Public Prosecutor, for the  Respondent-State.




    CORAM:-      D.D. SINHA   AND  A. P.  BHANGALE, JJ.

DATE OF RESERVING THE JUDGMENT :- 25TH OCTOBER,2010.

DATE OF PRONOUNCING THE JUDGMENT :- 29TH OCTOBER, 2010.

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JUDGMENT (PER A. P. BHANGALE,J):-

1. This Appeal is directed against the Judgment and order

dated 28/04/2010 passed in Sessions Case No. 202 of 1996 by the

learned Additional Sessions Judge, at Court of Sessions, Kalyan

whereby the Appellant Sunil Bisandatt Kaushik was found guilty of

the offence punishable under Section 302 of the Indian Penal Code

and sentenced to suffer imprisonment for life and to pay fine in the

sum of Rs.1000/-, in default to undergo rigorous imprisonment of six

months. Being aggrieved by the judgment and order of conviction,

present appeal is filed by the appellant.

2. Brief facts which led to the prosecution of the Appellant are:

Complaint (Exh.125) was lodged at about 04:30 p.m. at Vashind,

(Shahapur) Police Station on the basis thereof Crime No.I- 96 of

1989, under section 302 read with sections 147, 148, r/w 149 IPC, at

the instance of Shri Venkat Sadashiv Jadhav (PW5), in respect of the

incident which occurred on 22/03/1989, at about 1.45 to 2 p.m.

came to be registered. The first informant along with Mohan Rathod

and Parashuram were going by road towards their place of residence

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after enjoying milk-candies (Coolfies). Five persons including the

appellant came and demanded money for Holi. Mahendrasingh, one

of the accused, had caught hold of the complainant, but the

complainant had refused to pay. Later, Appellant Sunil Kaushik, who

came along with his associates towards them, had taken out a knife

and stabbed twice on the abdomen of Mohan Rathod. (Deceased).

The offenders ran away with the weapon of offence. The first

informant did not chase the assailant due to fear. Mohan Rathod was

lying injured with his intestines protruded out. Mohan was taken to

the Hospital, but was declared dead. The investigation followed

thereafter. Inquest (Exh 127) was drawn, of the dead body of Mohan

Rathod. Scene of offence Panchnama (Exh 129) was drawn. Blood

mixed soil and plain soil sample from the spot were collected. The

dead body of the deceased was referred for the post mortem

examination to Rural Hospital, Shahapur. Dr Ashok Ingale performed

post mortem examination on 23/03/1989 (Ex 135). Under-wear and

banian from the dead body were recovered under Panchanama (Ex

151). A Knife was recovered pursuant to disclosure from the arrested

accused no.1 under the Panchanamas (Exs 154 and 155).

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3. Muddemal articles weapon recovered as well as sample of

earth from the spot, clothes of the deceased were referred to the

Chemical Analyzer with letter( Ex 163). Reports of Chemical Analysis

were received . Upon completion of investigation the accused were

charge sheeted before learned Judicial Magistrate Shahapur.The case

was committed to the Court of Sessions, Thane.

4. The Charge was framed on 24/01/1989 (Exh. 8). The

Appellant accused pleaded not guilty and claimed to be tried. (Plea

recorded at Ex. 9). The prosecution examined 11 witnesses and

closed evidence in the trial Court. The defence of the accused was of

total denial.

5. We have heard learned advocate for the Appellant and

Learned A.P.P. for the State.

6. PW1 Dr. Ashok Ingale (PW9) had conducted post mortem

examination of the dead body of the victim Mohan Rathod .

According to him, he found following external injuries on the dead

body:

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1) Penetrating wound -1.5.right lateral to umbilicus-1.5 x .05 through which about 20

inches long small intestinal coils protrude out along with mesentery, shape is slightly

triangular margins-bruised and inverted obliquely directed- left nipple to right iliac

crest ,bluish-blackish discoloration with maggots.

2) Penetrating wound- 4 inches found umbilicus

on left and upside below costal margin 1.20 x 0.5 through which piece of omentum-4 inch long

protrudes out-wedge shaped, margins bruised and inverted, obliquely directed -left nipple to right iliac fossa. Bluish blackish discoloration

with maggots.

Following corresponding internal injuries were

also observed in post mortem examination(Ex.

135)

1) Small intestine (ileum) lacerated wound transversely 6 x 2 cm up to mesenteric attachment,

2) Two Perforating lacerated wound small intestine along with mesentry-4 x 2 cms

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and 3 x 1.5 cms

3) Mesenteric perforation 3 x 1.25 cms

4) On the left side of abdominal wall there was haematoma 4 inches x 3 inches .

There was haemo perironeum i.e collection of blood in the peritoneum

cavity.

7. According to Dr Ashok Ingale (PW 9), cause of death was

hemorrhagic shock due to haemo peritoneum and multiple injuries to

small intestine. Doctor also opined that the injuries observed by him

were possible by sharp and pointed object such as knife. The fact can

not be disputed that deceased met with homicidal death. Presence of

maggots observed by the Doctor though indicate that delay must have

occurred to refer the dead body for post mortem examination. the

trial court appears to have considered this aspect by making reference

to the evidence and the opinions of learned authors on the subject of

medical jurisprudence in this regard.

8. The next important question is - as to whether the appellant

was author of the injuries which were found on the person of the

deceased.

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We have answered the question in the negative for

following reasons:-

9. Learned counsel for the appellant submitted that there are

two eye-witnesses whose evidence has been relied upon in order to

establish offence against the appellant. It is submitted that PW 5

Venkat Sadashiv Jadhav deposed about the incident. According to

him, on 22.3.1989, on account of Holi festival and five persons,

including Accused No.1, were playing with colours on that day. They

were demanding money (contribution) for Holi. While PW 5 Venkat

offered Rs.100/-, they were not satisfied and were demanding Rs.

200/- which PW 5 refused. Accused No.1, therefore, torn his clothes,

later PW 5 along with Mohan Rathod (deceased) and Parshuram

Pawar proceeded further. They had enjoyed coolfies under a tree. At

that time, those five persons, including Accused No. 1 came rushing

towards them and Accused No.1 had taken out knife from his pocket

and inflicted two blows of the knife on the abdomen of Mohan Dallu

Rathod and part of his intestine had came out. PW 5 then went to

Police Station, Vasind and informed the incident to Police, which is

complaint (Exh.125). Learned Counsel for the appellant criticized this

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evidence on the ground of identification of the assailant. It is

contended that PW 5 was aged about 22 years on the date of the

incident and is illiterate person working as labourer. No test

identification parade was held. It is not his case that Accused No.1

was known to him since prior to the date of the incident. Learned

Counsel for the appellant argued, considering the date of the incident

and the alleged identification by PW 5 in the court, there was huge

gap of long period and it is natural that features of a person would

undergo changes due to the advanced age. The witness had not seen

the appellant prior to the date of the incident and no test

identification parade was held by the police. Under these

circumstances, it was risky for the trial Court to accept the evidence

of identification of the appellant in the Court as an assailant.

Learned Counsel for the appellant also argued that it is the case of

PW 5 himself that five persons were playing with colours on account

of Holi, if that is so, at the time of the incident, the face of the

assailant must have been covered with colours to make it more

difficult for the witness to remember complexion of the assailant, his

face and facial features after long gap of time of about more than 20

years, before he identified Accused No.1 in the Court. It is further

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brought to our notice that in paragraph 8 of the cross-examination

PW 5 in clear terms admitted that on 22.3.1989, he saw Accused No.

1 and other four persons for the first time while they were playing

with the colours. Although in the same breath witness claims that he

was knowing five persons prior to 22.3.1989, no reason or occasion is

mentioned as to how and why he was knowing them or had seen

them. PW 5 is unable to describe the clothes which Accused No.1

was wearing at the time of the incident. He is unable to describe size

and length of the knife with which the deceased was assaulted. PW 5

was also contradicted with the contents in his complaint Exhibit-125.

In the charge-sheet, he alleged that the accused Mahendra Singh had

demanded money from him in the Court. He alleged that Accused No.

1 made demand of money from him. It is further contended that the

reason for identification in the Court may be that Accused No.1 was

shown to him by the police, otherwise it was virtually impossible for

PW 5 to identify Accused No.1 in the Court, considering the time gap

between the incident and identification in the court which was more

than 20 years period. Learned Counsel, therefore, submitted that the

evidence of PW 5 is not reliable and acceptable against the Appellant.

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10. Another eye-witness whose evidence is relied upon by the

prosecution is PW 8 Parshuram Pawar. The Learned Counsel for the

appellant submitted that according to Parshuram when he along with

Venkat (PW 5) and deceased Mohan called Kiran Thakur, Kiran

Thakur had intervened in the quarrel and pacified those five persons

who were demanding contribution for Holi. Kiran (PW 4), while

deposing before the court, stated that he had not personally seen the

incident. He did not depose anything about his intervention in the

quarrel. It is further submitted that PW 8 Parshuram deposed about

the incident and stated that Kiran (PW 4) had brought a jeep to the

spot. Then he, along with Kiran Thakur (P.W.4) and Venkat (PW 5)

took Mohan to Shahapur after the incident. But there is no

corroboration to what PW 8 Parshuram had stated. It is also stated

in the evidence that when Venkat (PW5) and deceased Mohan

purchased Coolfies for eating and were eating Coolfies, at that time,

the assailant came from their back side, when deceased Mohan

Rathod shouted as "Bappa Melo" and he fell down, then PW 8 have

seen the assailant. That being so, according to learned counsel for the

appellant, the evidence of PW 8 Parshuram is also unreliable and not

acceptable, particularly, when test identification parade was not held

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in the present case and PW 8 also in clear terms, in the course of his

cross-examination in para 9, admitted that prior to the date of the

incident, accused No.1 and those four five Bhayyas were not

acquainted with him and he saw them for the first time on the date of

the incident. It is further argued that police have not recorded

statements of alleged eye-witness PW 5 Parshuram on the date of the

incident. He is unable to describe clothes which the deceased was

wearing or Accused No.1 was wearing on the date of the incident. In

cross-examination, para 13, he has stated, which is as follows :-

"When Accused No.1 and other five to

six persons had came and they were stabbing deceased Mohan, at that time, they were

wearing Chaddi and banian".

11. Looking to such exaggerated statement, which PW 8 had

ventured to make, it is really difficult to believe his version of the

incident. We are aware of the huge time gap between the time of the

date of the incident and the date when alleged eye-witnesses deposed

in the trial court after more than 20 years, the accused is bound to

undergo noticeable change in his features and unless there is

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assurance from rest of the evidence on record regarding identification

of the offender, identification for the first time in the court, after

more than 20 years or so, in the facts and circumstances of the

present case, become unsafe and risky to rely upon.

12. It is also submitted that there were no special features of the

accused no 1, which might have been noticed and remembered by the

eye-witnesses and in the absence of such special features, it was not

possible for the alleged eye-witnesses to identify the appellant in

court after 21 years from the date of the incident. We do find force in

this contention. It is submitted that there was possibility that

Accused No.1 was shown to the eye-witnesses by police, before their

deposition in the court was recorded to facilitate him to identify the

accused in the Court after 21 years. In the instant case, we may

mention that none of the witnesses in their oral statements, or in

their oral evidence gave any description of the offender, whom they

alleged to have identified in the court, nor did they mention about

any identification marks or state anything about the built of the

accused, whether they were fat, or thin, or of a fair colour or of black

colour. In the absence of any such description, five persons who were

playing with colours on the date of the Holi festival, their faces and

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clothes were covered with colours at the relevant time. It is in these

circumstances, it is not possible for us to accept that the appellant

could be identified by the witnesses who have virtually no reason to

remember them, particularly, after the long gap of more than 20

years in the court. For these reasons, the trial Court was not justified

in relying on the evidence of these alleged eye-witnesses and,

therefore, the findings of conviction recorded by the trial court, in our

view, are unsustainable in law.

13. Learned counsel for the appellant also argued that the

prosecution relied upon evidence as to discovery of weapon of

offence and examined PW 3 Sadashiv, however, PW 3 Sadashiv had

stated that accused Sunil did not volunteer to make any statement in

his presence. Thus, the alleged panchnama of disclosure and

discovery of weapon could not be proved by any independent

evidence. Apart from this, PW 1 Barku, who was examined in order to

prove the inquest panchnama, was also disowned by the prosecution

as he has turned hostile. Bandu Thorat (PW 2), who was examined

in order to to prove seizure of the clothes was also disowned by the

prosecution. Thus, there was no corroborative evidence to the

evidence of alleged eye-witnesses. Another panch examined was to

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prove the inquest panchnama was Balu (PW 6) who disowned theory

of the prosecution Motilal Prasad (PW 7) who was examined to

prove spot panchnama also turned hostile to the prosecution.

Investigating Officer who conducted investigation and drew

panchnama was not examined. PW 10 Kamlakar Savant was

examined in order to prove panchnama Exh.151 regarding seizure of

clothes i.e. underwear and banian from the person of the deceased

and arrest of one of the accused under panchnama Exh.152.

However, he also did not support the case of the prosecution

regarding alleged disclosure statement and discovery of knife at the

instance of the appellant - Investigating Officer, Senior PSI Mr Borkar

was not examined by the prosecution who could have thrown light

upon the investigation carried out in the case from the beginning till

the accused were charge-sheeted.

14. The learned Counsel for the appellant relied upon Niranjan

Panja v. State of West Bengal (2010) 6 SCC 525 in order to show that

it is obligatory for the prosecution to establish beyond reasonable

doubt the disclosure statement and consequent discovery of weapon

of offence. Our attention is invited to observations made by the Apex

Court in paragraph 13 of the ruling :-

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"Unfortunately, for the prosecution this

siuli katari was never brought before the court.

It is said to have been lost and has never seen the light of the day before the court. This is apart from the fact that the proof of discoveries itself is

doubtful".

15. Learned counsel for the appellant submitted that the said

observations are equally attracted in the present case as alleged

weapon of offence, knife, was not produced before the court in the

present case.

16. Reference is also made to ruling in Ravinder Parkash and

anr vs. State of Haryana (2002) 8 SCC 426 regarding identification

of the dead body in a decomposed state. According to the learned

counsel, in the present case maggots were observed by the doctor

who performed post mortem examination, indicating that there was

delay of more than 24 hours before post-mortem examination was

done. Therefore, benefit of ruling in Ravinder Parkash may be given

in favour of the appellant, considering that prosecution was unable to

establish positively time of death with reference to observations

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regarding presence of maggots in the post mortem notes.

17. The learned Additional Public Prosecutor supported the

impugned judgment, fairly submitted that Investigating Officer was

not examined and, therefore, it was difficult to bring on record the

evidence regarding investigation carried out in the present case, as

also to prove disclosure statement made by accused No.1 and

consequent discovery of weapon after the relevant panchas turned

hostile to the prosecution case.

18. We have considered the ocular evidence led by the

prosecution in this case as also the circumstantial evidence sought to

be relied upon. For the reasons stated above, the evidence do not

inspire confidence to arrive at safe conclusion regarding guilt of the

appellant for serious crime like murder punishable under section 302

of Indian Penal Code. Under these circumstances, we feel that the

appellant was entitled for benefit of doubt which the learned Trial

Judge ought to have given. In our opinion, when majority of

witnesses turned hostile and were disowned by the prosecution, it

was necessary for the prosecution to examine the Investigating

Officer. The result of non-examination of the Investigating Officer is

that the prosecution is unable to bring on record necessary facts on

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the basis of which inescapable inference of guilt can be drawn against

accused No.1 in the present case.

19. In our considered opinion, therefore, having regard to the

evidence led by the prosecution, the appellant is entitled to claim

benefit of doubt. Accordingly, the conviction recorded by the trial

Court against the Appellant for offence punishable under Section 302

of the I.P.C. is liable to be set aside. It is accordingly set aside. The

appellant is in jail, he shall be released forthwith, if his detention is

not required in any other criminal case. Amount of fine paid or

deposited, if any, be refunded to the appellant. The appeal is allowed

accordingly.

sd/-

(D.D. SINHA, J)

sd/-

(A. P. BHANGALE, J)