Bombay High Court
Ananta vs Dabhade on 14 December, 2011
Bench: Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEALNO.169 OF 2011
Ananta s/o Yadav Kakade,
aged: 34 years, Occ: Labour,
R/o Dahitana, Tq. Paranda,
District Osmanabad. Appellant
Versus
The State of Maharashtra,
through Vandana d/o Hanumant
Dabhade, age: 26 years,
Occ: Labour, R/o Dahitana,
Tq.Paranda, Dist.Osmanabad. Respondent
Mr.S.M.Ganachari, advocate for the appellant (appointed).
Mr.S.G.Nandedkar, A.P.P. for Respondent-State.
CORAM : SHRIHARI P. DAVARE, J.
DATE : 14th December, 2011
JUDGMENT:
1 Heard learned Counsel for respective parties.
2 This is an appeal preferred by the appellant (original
accused) challenging the conviction and sentence imposed upon
him by way of judgment and order dated 8th February, 2011,
rendered by the learned Additional Sessions Judge, Osmanabad in
Sessions Case No.91 of 2009, thereby convicting the appellant for
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the offence punishable under Section 307 of the I.P.C. and
sentencing him to suffer rigorous imprisonment for five years and
to pay fine of Rs.1000/-, in default, to undergo rigorous
imprisonment for four months; and also convicting him for the
offence punishable under Section 452 of the I.P.C. and sentencing
him to suffer rigorous imprisonment for two years and to pay fine
of Rs.1000/-, in default, to undergo rigorous imprisonment for two
months; and also directing both the sentences to run concurrently.
The factual conspectus and shorn of details of the
prosecution case, are as follows:
The complainant Vandana Dabhade, who is a victim in
the present case, is the wife of accused, who married with him in
the year 1999. Initially she was treated in well manner for the
period of about 4 to 5 months, however, thereafter, accused did
not behave with her properly and he used to assault her. It is also
alleged that the accused was addicted to consumption of liquor
and he neglected the complainant. Hence, she had filed a Petition
for maintenance and also constrained to leave the matrimonial
home and to reside at her parental house, which was situated at
Dahitana. The accused also used to reside in the same village.
4 It is the case of the prosecution that the alleged
incident took place at the parental house of the complainant
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Vandana at Dahitana, Tq. Paranda on 21.09.2008, when P.W.3
Vandana and her mother P.W.4 Nagarbai Dabhade were present in
the house. At about 4.00 p.m., on the said date, the accused,
armed with a sharp sickle, arrived there and asked complainant
Vandana to return the amount of Rs.10,000/-, which was taken
from him. He also inquired about her father. However, due to fear
of accused, P.W.4 Nagarbai closed the rear door of the house, but
the accused entered into the house from front door and started
assaulting complainant Vandana by means of sickle and assaulted
on her head and back and, therefore, P.W.3 Vandana tried to avoid
the said blows and thereby she sustained injuries on her left hand
and, on her back and also on her thigh. At this juncture, P.W.1
Pratap Kakade and P.W.2 Gopinath Kakade tried to intervene and
rescue her, but P.W.3 Vandana lost her consciousness. Thereafter
P.W.3 Vandana was removed to Civil Hospital, Paranda by P.W.11
Ramdas Kakade by Tumtum and thereafter she was shifted to
Jagdale Mama Hospital at Barshi for further medical treatment,
where her statement was recorded by the police personnel, which
was treated as F.I.R. (Exhibit-33).
5 It is also the case of the prosecution that on
22.09.2008, P.W.10 Police Head Constable Dnyaneshwar Nagarsoge
was on duty at Paranda Police Station and at about 10.30 a.m.,
Police Constable brought the complaint of P.W.3 Vandana from
Jagdale Mama Hospital, Barshi. Accordingly, P.W.10 Dnyaneshwar
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Nagarsoge registered the offence under Cr.No.139/2008 under
Sections 307 and 452 of the Indian Penal Code and thereafter
investigation of the said crime was handed over to P.W.12 P.S.I.
Ashok Pagare.
6 It is further case of the prosecution that P.W.12 was
attached to Paranda Police Station as P.S.I.. On 23.09.2008, he
received the investigation from P.W.10 Dnyaneshwar Nagarsoge
after registering the offence, and accordingly, P.W.12 P.S.I. Ashok
Pagare proceeded to the spot of the incident, which was the house
of parents of the complainant at village Dahitana and he prepared
spot panchanama (Exhibit-38) in presence of pancha witness
Pratap Mohan Kakade and seized a sickle (Article 1) from the tin
roof of house of the victim and also seized 13 pieces of broken
bangles of Vandana (Article 2 collectively) in front of her house,
thereunder. He also recorded statements of the witnesses during
the course of investigation. Thereafter he arrested the accused on
23.09.2008 under the aforesaid Crime and drawn arrest
panchanama to that effect.
7 The prosecution case also recites that on 21.09.2008,
P.W.7 Dr. Manoj Lokhande was working at Jagdale Mama Hospital
at Barshi in the capacity as General Surgeon and he was on duty
on the said date and at that time, Ganesh Dabhade i.e. brother of
injured Vandana brought her for medical treatment on 21.09.2008.
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Dr.Baraskar was the Medical Officer at that time who saw injured
Vandana and P.W.7 Dr.Manoj Lokhande was called. Accordingly,
P.W.7 Dr.Manoj examined Vandana and noticed penetrating injury
to the left posterior chest with pneumothorax, which was grievous
in nature, which was by a weapon having highly sharp and pointed
edge. Accordingly, after examination, he issued certificate, which
is produced at Exhibit-41. Thereafter, injured Vandana was
discharged from the hospital on 01.10.2008.
According to the prosecution, P.W.12 P.S.I. Ashok
Pagare collected the medical certificate of Vandana as well as
collected Form No. 8- extract of House No.118 during the course of
investigation. Accordingly, after completion of investigation, P.W.12
P.S.I. Ashok Pagare filed charge sheet against the accused and
since the charges levelled against the accused were triable by the
Court of Sessions, the said case was committed to the Court of
Sessions, Osmanabad.
9 Accordingly, learned Additional Sessions Judge,
Osmanabad, framed charge against the accused under Sections
307, 452 and 504 of I.P.C. on 21.11.2009 at Exhibit-7. Accused
pleaded not guilty and claimed to be tried.
10 To substantiate the charges levelled against the
accused, the prosecution examined as many as 12 witnesses, as
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mentioned below:
1. P.W.1- Pratap Dadasaheb Kakade - eye witness, who
allegedly intervened and rescued victim Vandana - turned
hostile.
2. P.W.2- Gopinath Navnath Kakade - eye witness - turned
hostile.
3. P.W.3- Vandana Dabhade - complainant and victim.
4. P.W.4- Nagarbai Dabhade - mother of victim - eye witness.
5. P.W.5 Pratap Mohan Kakade - pancha to the panchanama of
seizure of articles such as sickle and pieces of broken
bangles and spot panchanama.
6. P.W.6- Baburao Pandurang Kale - pancha to the
panchanama of seizure of articles - turned hostile.
7. P.W.7- Dr.Manoj Mahavir Lokhande - Medical Officer who
examined victim Vandana and gave her medical treatment
and issued injury certificate, which is produced at
Exhibit-41.
8. P.W.8- Urmila Sutar - eye witness - turned hostile.
9. P.W.9- Yeshwant Narayan More - eye witness - turned
hostile.
10.P.W.10- Dnyaneshwar Nagarsoge - Police Head Constable,
who registered the offence against the accused on
22.09.2011.
11.P.W.11- Ramdas Kakade - Driver of the Tumtum car who
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removed the victim to hospital - turned hostile.
12.P.W.12- P.S.I. Ashok Pagare, Investigating Officer.
11 The defence of the accused is of total denial and he
stated in his statement, recorded under Section 313 Cr.P.C., that
P.W.3 Vandana, who is his wife, had filed a case against him under
Section 498A of I.P.C. earlier in Paranda Court, but the accused
was acquitted therein and hence Vandana was demanding divorce
and even threatened him that if he would not give her divorce, she
would implicate him in another case, and accordingly, accused
stated that he has been implicated in this case falsely, and hence,
claimed to be innocent. However, the accused neither examined
himself on oath nor examined any defence witness to substantiate
his defence which was putforth through the cross examination of
prosecution witnesses and also through his statement recorded
under Section 313 of Cr.P.C.
12 On perusal of the oral, documentary evidence and
medical evidence adduced/produced by the prosecution and after
considering the rival submissions advanced by learned Counsel for
respective parties, learned Additional Sessions Judge, Osmanabad,
convicted the accused for offences punishable under Sections 307
and 452 of I.P.C. and sentenced him and also imposed fine upon
him, as mentioned hereinabove, by judgment and order dated
08.02.2011.
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13 Being dissatisfied with the said Judgment and order of
conviction and sentence, the appellant preferred present appeal
and prayed for quashment thereof.
14 In order to deal with the submissions advanced by the
learned Counsel for parties, it is necessary to advert to the
material evidence adduced/produced by the prosecution and in the
said context, coming to the deposition of P.W.3 complainant
Vandana Dabhade, who has stated that she married with the
accused in the year 1999 and accused was addicted to alcohol and
used to assault her and, therefore, she used to stay with her
parents. She also filed maintenance proceedings against the
accused in the Court of Phaltan, District Satara. She stated that
at the time of incident, she was residing at her parental house at
Dahitana and the incident took place on 21.09.2008 at about 4 to
4.30 p.m. when her mother Nagarbai was present in the house as
well as one Yeshwant More, neighbourer and his daughter Urmila
were also present. At this juncture, accused came in the house
and asked whereabouts of her father and also told her to return
the amount of Rs.10,000/-. She also stated that accused was
armed with sickle and was also under intoxication. She further
stated that her mother closed the rear door of the house, but the
accused came into the house from the front door and started
assaulting P.W.3 complainant Vandana by sickle and thereafter she
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sustained injuries on head, back, left hand and left thigh. She
further stated that P.W.1 Pratap Kakade and P.W.2 Gopinath
Kakade intervened and tried to rescue her, but complainant
Vandana lost her consciousness. She further stated that accused
also threatened P.W.4 Nagarbai not to intervene otherwise, she
would also be killed. Thereafter complainant Vandana was
brought to the hospital at Paranda and thereafter she was shifted
to Jagdale Mama Hospital at Barshi. Accordingly, she stated that
accused assaulted her with sickle and demanded amount of Rs.
10,000/- and police personnel came to Jagdale Mama Hospital and
recorded her statement, which was treated as F.I.R. (Exhibit-33).
She identified the sickle (Article 1) and pieces of broken bangles
(Article 2 collectively).
15 During the cross examination, she stated that she filed
498A I.P.C. proceedings against the accused in Paranda Court, but
she was not aware whether the accused was acquitted in the said
case. A suggestion was given to her that she sustained injuries
when she went to pick up chilly put on the tin roof for drying
purpose and in that process, the tin was broken, but she denied
the same. It was also suggested to her that she fell down when the
tin roof was broken, but same was also denied by her. It was also
suggested to her that accused never come to the house of her
parents and never assaulted her with sickle, but same was also
denied by her. A further suggestion was given to her that in order
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to teach a lesson to the accused, she filed false complaint against
him, same was also denied by her.
16 That takes me to the testimony of P.W.4 - Nagarbai
Dabhade, who stated in her deposition that P.W.3 - Vandana is her
daugher and accused is her son-in-law and he used to assault her
daughter Vandana and, therefore, Vandana used to reside with her
at Dahitana. Vandana had also filed maintenance petition against
the accused. As regards the incident, she stated that it took place
in the year 2008. Vandana was present at her house at Dahitana
at about 4.30 p.m., as well as Yeshwant More, her neighbourer was
also present in her house and they were watching T.V. and
Vandana was stitching clothes. At this juncture, accused, armed
with sickle, came to her house and demanded Rs.10,000/- to
Vandana and thereafter he started assaulting her by means of
sickle and assaulted her on her left hand, left thigh and back.
Thereupon, Vandana ran from the house and she had fallen on the
heap of pieces of stone and became unconscious. Accused then
threw the sickle on the tin roof and assaulted Vandana by means
of fists and kick blows. Accused also threatened her not to
intervene, otherwise he would kill her. She further stated that P.W.
1 Pratap Kakade and P.W.2 Gopinath Kakade also intervened in
the said incident and brought P.W.3 Vandana by Tempo to the
hospital at Paranda and thereafter she was referred to the hospital
at Barshi from Paranda. She further stated that Vandana's
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bangles (Article 2 collectively) were broken in the said incident.
17 During the cross examination, she stated that her
husband and P.W.3 Vandana were residing at Phaltan and
presently they reside at Karmala. It was suggested to her that the
accused was acquitted of the offence under Section 498A I.P.C.
and, therefore, the complainant has lodged false complaint against
him to teach him a lesson, but same was denied by P.W.4-
Nagarbai.
18 Now turning to the deposition of P.W.7 - Dr.Manoj
Lokhande, who has stated that he was working in Jagdale Mama
Hospital at Barshi on 21.09.2008 in the capacity as General
Surgeon and he was on duty on the said date. At this juncture,
Ganesh Dabhade, brother of Vandana brought her to the hospital
at about 8.15 p.m. on 21.09.2008. He also stated that Dr.Baraskar
was the Medical Officer who saw injured Vandana and also
mentioned about the history and alleged assault on her.
Accordingly, P.W.7 Dr.Manoj was called and he also examined
Vandana and noticed penetrating injury to the left posterior chest
with pneumothorax. He further stated that he found injured
Vandana in the state of shock and her systolic blood pressure was
40 mm Hg. He also noticed size of the injury which was 4 x 2 cm
with sharp edges and open. The injury was grievous in nature. He
further stated that injury was caused within 24 hours duration
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and it may be possible by a weapon which was sharp and having
pointed edge. The injury sustained by Vandana is dangerous to
her life. However, she was discharged by the hospital on
01.10.2008. He also issued the M.L.C. Certificate after her
examination and the said certificate is at Exhibit-41. He further
identified Article 1 sickle and stated that injury sustained by
Vandana could be possible by Article 1.
19 However, during the cross examination, he stated that
he has not mentioned MLC number in the column of said
certificate. He also stated that near about 50 patients used to visit
Jagdale Mama Hospital, daily. He further stated that he has not
mentioned identification marks of Vandana in the medical
certificate. He also stated that he has not mentioned, in the said
certificate, as to who brought Vandana to the hospital nor there is
mention of name of Police Station. A specific question was put to
the said witness that he has not mentioned depth of the injury in
the said certificate, and thereupon he admitted that he has not
mentioned depth of the injury in the said certificate. A suggestion
was given to him that injury sustained by Vandana was a
superficial injury, but same was denied by him. It was also
suggested to him that he has shown wrong location of the injury of
Vandana in the certificate, but same was also denied by him. He
agreed that size of the injury depends upon the weapon. He
volunteered that size also depends upon the force of the weapon
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and further stated that if weapon is used by force, in that case, the
injury may be deeper. He further admitted that he has not
mentioned colour of the injury in the medical certificate. He
denied the suggestion that the injury sustained by Vandana might
be of four days' duration. He also denied the suggestion that
injury sustained by Vandana is not on the vital part of the body.
He further denied that he has not mentioned that the injury
sustained by Vandana is on the vital part of her body. He further
denied the suggestion that injury sustained by Vandana is not
dangerous to her life. However, he admitted that the injury may be
possible in a fall on pointed glass object. P.W.7 Dr.Manoj also failed
to identify injured Vandana in the Court. Hence, a suggestion was
given to him that he wrote name of the injured wrongly, but same
was denied by him.
20 On the aforesaid background of the material evidence,
Mr.Ganachari, advocate for the appellant-accused, canvassed that
the prosecution examined in all twelve witnesses to substantiate
the charges levelled against the accused, but out of the twelve
witnesses, seven witnesses turned hostile and did not support
case of the prosecution, which include independent witnesses and
the panchas and, therefore, spot panchanama and seizure
panchanama in respect of seizure of article 1- sickle and article 2 -
pieces of broken bangles could not be proved. Apart from that, it is
submitted that Article 1 - sickle, which was seized, was not sent to
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C.A. office for examination purpose and accordingly, chain of the
prosecution evidence sustained gaps and there is no continuity
therein. He has also canvassed that P.W.1 Pratap Dadasaheb
Kakade and P.W.2 Gopinath Kakade, the neighbourers, who
allegedly tried to intervene and rescue the complainant from the
clutches of the accused, who were supposed to be independent
witnesses, also did not support the case of the prosecution and
turned hostile, as well as, P.W.5 - Pratap Mohan Kakade, pancha
witness to the spot panchanama and seizure of articles, such as
sickle and pieces of broken bangles and P.W.6 Baburao Kale,
pancha witness to the panchanama of seizure of articles, also
turned hostile and did not support the case of the prosecution.
Moreover, it is canvassed that the neighbourer and independent
witnesses P.W.9 Yashwant More and his daughter P.W.8 Urmila
also turned hostile and did not support the prosecution case, as
well as, P.W.11 Ramdas, driver of the Tumtum, who allegedly
removed the victim to the hospital, also turned hostile and did not
support the prosecution case, and accordingly, the prosecution
case was crippled by such hostile witnesses.
21 As regards the injury sustained by P.W.3- complainant
Vandana, learned Counsel for the appellant canvassed that the
injuries allegedly sustained by her and narrated in her testimony
and also injuries sustained by her, which were narrated by P.W.4 -
her mother Nagarbai, do not match with the MLC certificate
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Exhibit-41, since both the said witnesses have stated that victim
Vandana sustained injuries on her head, back, left hand and left
thigh, whereas, injury certificate Exhibit-41 discloses that victim
Vandana sustained penetrating injury to left posterior chest which
was grievous in nature. However, P.W.7 Dr.Manoj categorically
stated, in his deposition, that the said injury may be possible in a
fall on the pointed glass object. Hence, learned Counsel for the
appellant argued that the ocular evidence of P.W.3 Vandana and
P.W.4 Nagarbai on the one hand and the evidence of P.W.7
Dr.Manoj and MLC Exhibit-41 on the other hand, do not match
with each other and there is variance therein and hence
consequently, such shaky evidence does not connect the appellant
with the alleged crime.
22 Besides this, learned Counsel for the appellant also
asserted that even the prosecution could not prove presence of the
accused on the spot of the incident at the relevant time and there
is no independent witness to establish and prove the same, except
the interested testimony of P.W.3 complainant Vandana and P.W.4
Nagarbai. Moreover, it is further canvassed that, even the
prosecution could not prove that the very sickle (Article 1) was
used by the accused at the relevant time, since the seizure thereof
from the tin roof of the house of victim was not at the instance of
the accused herein and even the said panchanama has not been
proved by the prosecution, creating suspicion in respect of seizure
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of the sickle.
23 Apart from that, learned Counsel for the appellant
canvassed that even the prosecution has failed to prove and
establish the very intention of the accused to attempt to commit
murder of victim Vandana. Accordingly, it is submitted that there
are discrepancies, deformities and infirmities in the prosecution
case and the testimonies of P.W.3 - Vandana and P.W.4 - Nagarbai
in respect of occurrence of the incident cannot be believed since
they are interested witnesses and the independent witnesses have
turned hostile, as well as testimonies of P.W.3 Vandana and P.W.4
Nagarbai also suffer with the lacunae, and therefore, same cannot
be believed and consequently, the accused cannot be connected
with the alleged crime and, therefore, submitted that the
conviction and sentence recorded by the learned trial Court against
the accused would not sustain, and hence, same deserves to be
quashed and set aside and accused deserves to be acquitted by
allowing the present appeal.
24 Learned A.P.P. countered the said argument and
opposed the present appeal vehemently and submitted that
accused is the husband of complainant and it is the matter of
record that litigation between them was pending and, therefore,
complainant was residing at her parental house. Moreover, learned
A.P.P. canvassed that although out of the twelve witnesses,
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examined by the prosecution, seven witnesses turned hostile, the
very testimonies of P.W.3 complainant Vandana and her mother
P.W.4 Nagarbai, categorically connects the accused with the crime
and both the said testimonies are in consonance with each other,
which proves and establishes occurrence of the incident and
involvement of the accused therein beyond reasonable doubt. It is
also submitted that the testimonies of P.W.3 complainant Vandana
and P.W.4 Nagarbai, who are the eye witnesses to the occurrence of
the incident, have been supported by the medical evidence of P.W.7
- Dr.Manoj Lokhande and MLC certificate at Exhibit-41. P.W.7
Dr.Manoj Lokhande has categorically stated that the injury
sustained by victim are grievous in nature and it might have
caused within 24 hours' duration and the injury may be possible
by a weapon which is a sharp and highly pointed edge and injury
sustained by Vandana is dangerous to her life and she was
admitted in the hospital on 21.09.2008 and discharged on
01.10.2008. Learned A.P.P. further pointed out that P.W.7
Dr.Manoj Lokhande, on inspection of article sickle, stated that
injury sustained by Vandana is possible by sickle (article 1).
Hence, learned A.P.P. submitted that there is no discrepancy in the
ocular evidence of P.W.3 Vandana and her mother P.W.4 Nagarbai
and the medical evidence adduced and produced by the
prosecution through P.W.7 Dr.Manoj and MLC certificate at
Exhibit-41 and said evidence implicitly connects the accused with
the said crime. It is also canvassed that considering the
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testimonies of P.W.3 victim Vandana and P.W.4 Nagarbai, there is
no reason to disbelieve their versions, since P.W.3 herself is victim
of the incident and P.W.4 - her mother is eye witness to the
occurrence of the said incident.
25 Besides this, learned A.P.P. also argued that the very
intention of the accused can be gathered from the nature of the
injury which was grievous in nature, as stated by P.W.7- Dr.Manoj
Lokhande as well as situs of the injury, which was a penetrating
injury to the left posterior chest, as stated in MLC Exhibit-41 and
weapon used to cause said injury i.e. admittedly sickle, as stated
by P.W.3 Vandana and P.W.4 Nagarbai, which was seized under the
panchanama, as aforesaid, which is a deadly weapon and hence
the very intention of the accused was to attempt to commit murder
of victim Vandana and same can be gathered against the accused
from evidence, which categorically connects the accused with the
crime.
26 Accordingly, learned A.P.P. supported the impugned
judgment and order dated 08.02.2011 recorded by learned
Additional Sessions Judge, Osmanabad, recording conviction and
sentence against the accused for the offences under Sections 307
and 452 of the I.P.C. and submitted that the learned trial Court
has scrutinised and assessed the said evidence properly and
convicted and sentenced the accused rightly and there is no
{19}
glaring mistake therein and, therefore, no interference is called for
in the present appeal and, therefore, urged that present appeal be
dismissed.
27 I have perused the ocular, documentary and medical
evidence adduced/produced by the prosecution as well as
considered the submissions advanced by the learned Counsel for
the parties, anxiously and at the outset, although the prosecution
has examined twelve witnesses to substantiate the charges levelled
against the accused, seven witnesses turned hostile to the case of
the prosecution and did not support the case of the prosecution.
Pertinently, P.W.1 Pratap Dadasaheb Kakade and P.W.2 Gopinath
Kakade, who allegedly intervened and rescued victim Vandana
from the clutches of the accused and who are eye witnesses to the
occurrence of the incident, did not support the case of the
prosecution and turned hostile to it, which sustains fatal blow to
the case of the prosecution. Moreover, other two independent
witnesses i.e. P.W.9 Yashwant More and his daughter P.W.8 Urmila,
who were also eye witnesses to the occurrence of the incident, did
not support the prosecution case and turned hostile. Accordingly,
four independent witnesses, who were in fact eye witnesses to the
occurrence of incident, have not supported the prosecution case
and turned hostile, which hampered case of the prosecution.
Apart from that, both the panchas i.e. P.W.5 Pratap Mohan
Kakade, pancha to the spot panchanama and seizure of articles
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thereunder i.e. sickle and pieces of broken bangles as well as P.W.6
Baburao Kale, pancha to the panchanama of seizure of articles,
also turned hostile and did not support the prosecution case and
hence seizure of articles, such as sickle and pieces of broken
bangles could not be proved and established by the prosecution.
Apart from that, the said seized articles i.e. sickle and pieces of
broken bangles were not sent to the C.A. office for examination
purpose and, therefore, this evidence also does not support the
prosecution case to connect the accused with the crime. Besides
this, P.W.11 Ramdas, who allegedly, removed victim Vandana by
Tumtum to the hospital after occurrence of the incident, also
turned hostile to the prosecution case and did not support it.
Moreover, learned A.P.P. submits that from the respective hostile
witnesses, nothing beneficial to the prosecution case, could be
extracted.
28 Hence, after eliminating the aforesaid seven hostile
witnesses from the prosecution evidence, remainder was five
witnesses and as regards the occurrence of the incident, there are
only two witnesses i.e. P.W.3 victim Vandana and P.W.4 her mother
Nagarbai. Pertinently, P.W.3 victim Vandana has stated in her
deposition that the accused was under intoxication at the time of
occurrence of the incident, but contents of the F.I.R. (Exhibit-33)
are silent in that respect as well as the testimony of P.W.4 her
mother Nagarbai, alleged eye witness, also does not whisper to that
{21}
respect and nowhere stated that accused was under intoxication at
the time of occurrence of the incident. As regards the injuries
sustained by victim Vandana, she stated in her deposition that
accused assaulted her on her head, back, on the left hand and left
thigh by sickle, but contents of the F.I.R. disclose that accused
assaulted by sickle on her head, back and she tried to miss the
blows and thereby she sustained injuries on her left hand and also
on her private part. Pertinently, there is no reference to
sustaining of injury to her private part, in her testimony and the
F.I.R. is silent in respect of sustaining injury by her on the left
thigh. P.W.4 Nagarbai has stated that victim Vandana sustained
injury on left hand, left thigh and back but her testimony is silent
about the injury sustained by Vandana on her head.
29 Keeping in mind this stock of evidence i.e. testimony of
P.W.3 victim Vandana and P.W.4 her mother Nagarbai, as eye
witness, and coming to the medical evidence i.e. P.W.7 - Dr.Manoj
Lokhande, who has stated that he examined Vandana and noticed
penetrating injury to the posterior left chest with pneumothorax
and the said injury was grievous in nature. He also stated that he
issued the Medico Legal Certificate Exhibit-41. A bare perusal of
the said certificate also discloses that victim Vandana sustained
one injury i.e. penetrating injury to posterior left chest, which was
grievous in nature. Thus, the medical evidence of P.W.7 Dr.Manoj
Lokhande and even MLC Exhibit-41 reflects that victim Vandana
{22}
sustained only one injury i.e. penetrating injury to left posterior
chest, which was grievous in nature. Whereas, both the witnesses
of prosecution i.e. very victim P.W.3 Vandana and her mother P.W.4
Nagarbai have given different versions in respect of injuries
sustained by victim Vandana. Apparently, according to victim
Vandana, she sustained four injuries i.e. on her head, back, left
hand and left thigh. But the medical evidence of P.W.7 Dr.Manoj
and certificate Exhibit-41 disclose that she sustained only one
injury and accordingly there is glaring variance between the said
ocular evidence of P.W.3, P.W.4 on one side and medical evidence of
P.W.7 Dr.Manoj Lokhande and MLC Exhibit-41 on the other side
and said evidence do not match with each other, which sustains
fatal blow to the prosecution case and diminishes its credibility.
30 Moreover, it is important to note that P.W.7 Dr.Manoj
had admitted in the cross examination that he has not mentioned
the MLC number in the Certificate Exhibit-41 as well as he has not
mentioned identification marks of Vandana in the medical
certificate as well as he has not mentioned in the certificate as to
who brought Vandana to the hospital as well as there is no
mention of name of the Police Station therein. When a specific
question was put to him that he has not mentioned depth of the
injury, he admitted the position that he has not mentioned depth
of the injury. He has categorically denied that he has shown
wrong location of the injury of Vandana, in the certificate. He has
{23}
admitted that he has not mentioned colour of the injury, in the
medical certificate. He further categorically stated in the cross
examination that the injury sustained by victim Vandana may be
possible in a fall on the pointed glass object. Pertinently, he even
did not identify injured victim in the Court. Hence, even the
testimony of P.W.7 Dr.Manoj appears to be shaky and same cannot
be construed as incriminating piece of evidence against the
accused.
Coming to the testimony of P.W.3 victim Vandana, she
has stated in the cross examination that she had filed proceedings
under Section 498A of the I.P.C. against the accused in Paranda
Court, however, she is not aware whether the accused is acquitted
therein. She also admitted that she was residing at Phaltan with
her parents and never returned to village Dahitana. A suggestion
was given to her that she filed a false case against the accused
with consultation of her relatives since he was acquitted from the
proceedings under Section 498A of I.P.C., but same was denied by
her. So is the position with the testimony of P.W.4 Nagarbai,
mother of victim and alleged eye witness. A suggestion was put to
her in the cross examination that as the accused was acquitted in
the proceedings under Section 498A of the I.P.C., a false complaint
was lodged by the complainant against him to teach him a lesson,
but same was denied by her. Thus, there is variance between the
contents of F.I.R. Exhibit-33 and testimony of P.W.3 complainant
{24}
Vandana, as mentioned hereinabove and the testimonies of P.W.3
Vandana and P.W.4 Nagarbai also are not in consonance with
each other, as discussed hereinabove. The said stock of evidence of
P.W.3 Vandana and P.W.4 Nagarbai, in respect of occurrence of
incident, has not been supported by the medical evidence i.e. P.W.7
Dr.Manoj Lokhande and MLC Exhibit-41 and hence the
prosecution case does not inspire confidence in respect of the
charges levelled against the accused. Hence there are infirmities
and deformities in the prosecution case and, therefore, it does not
bring the guilt at home against the accused.
32 Apart from that, apparently there is substance in the
submission of learned Counsel for the appellant that the
prosecution even could not prove presence of the accused at the
relevant time on the spot of the incident and could not prove that
the very sickle (Article 1) was used by the accused during the
occurrence of the incident at the relevant time. Accordingly, there
is no cogent evidence in that respect to establish said fact, except
the testimonies of P.W.3 Vandana and P.W.4 Nagarbai and FIR
Exhibit-33, but the said ocular evidence of P.W.3 and P.W.4 and
contents of F.I.R. Exhibit-33 are intolerant due to the infirmities
and discrepancies therein.
33 As regards the argument canvassed by learned A.P.P.,
to gather intention against the accused, who allegedly attempted to
{25}
commit murder of his wife Vandana, even there is variance in the
nature of injuries, since the ocular evidence of P.W.3 Vandana and
P.W.4 Nagarbai is not in consonance with the medical evidence in
respect of injuries sustained by Vandana. Although the fact of
injury sustained by victim Vandana is disclosed in the MLC
Exibit-41 i.e. penetrating injury to left posterior chest is grievous in
nature, but the weapon used to cause the said injury i.e. Article 1
sickle is under suspicion, since seizure thereof at the instance of
the accused has not been proved and established by the
prosecution and even the same was not sent to C.A. office for
examination purpose and, therefore, situs of the injury sustained
by victim Vandana is in isolation and the said solitary aspect
cannot be the basis to gather intention of attempting to commit
murder against the accused.
34 In the circumstances, there are deformities, infirmities
and discrepancies in the prosecution case and, therefore, the
conviction and sentence recorded against the appellant-accused by
the learned trial Court shall not sustain and hence, I am inclined
to accept the submissions advanced by learned Counsel for the
appellant and present appeal deserves to be allowed and the
conviction and sentence imposed upon the accused-appellant by
way of judgment and order dated 08.02.2011 deserves to be
quashed and set aside and accused is required to be acquitted
from the offences with which he was charged and convicted.
{26}
35 In the result, present appeal is allowed and the
conviction and sentence imposed upon the appellant for the
offences punishable under Sections 307 and 452 of the Indian
Penal Code by the judgment & order dated 08.02.2011, stands
quashed and set aside and the accused-appellant is acquitted
thereof. Appellant-accused is in custody and he be set at liberty
forthwith, if not required in any other case. The fine amount, if
any, deposited by the appellant-accused, be refunded to him.
Mr.Ganachari, advocate was appointed as advocate for
the appellant through Legal Aid and his fees are fixed at Rs.3000/-
(Rs.Three thousand), which shall be paid to him through the Legal
Aid.
37 Appeal is disposed of accordingly.
SHRIHARI P.DAVARE
JUDGE
adb/crial16911
