Kailas Hanumant Nalawade vs The State Of Maharashtra
2015 Latest Caselaw 20 Bom

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                                                      901.APEAL.520-15-JUDGMENT.doc


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION




                                                                                 
                      CRIMINAL APPEAL NO.520 OF 2015
                                   WITH




                                                         
                    CRIMINAL APPLICATION NO.779 OF 2015
                                    IN
                      CRIMINAL APPEAL NO.520 OF 2015




                                                        
    Kailas Hanumant Nalawade 
    Age about 30 years, Occupation : Service,
    Resident of S. No.44/1A, H.No.21B,




                                              
    Anand Park, Pimpale Gurav, Pune.


                  Versus
                                   
    [at present in Yerwada Central Prison]                      ..Appellant
                                  
    State of Maharashtra                                        ..Respondent
                                    ....
    Mrs. Anita A. Agarwal, for the Appellant/Applicant.
    Ms. Anamika Malhotra, APP, for the State.
       


                                    ....
    



                                   CORAM :   A. R. JOSHI, J.

                                   DATE     :  7th AUGUST, 2015
                                             





    ORAL JUDGMENT 

1. Heard rival arguments at length on this appeal

preferred by the appellant / original accused No.1 challenging

his conviction for the offences punishable under Section 304

(Part II) and 324 of IPC. By the said impugned judgment and

order, original accused Nos.2, 3 and 4 were acquitted of both the

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charges. The present appellant was sentenced to suffer RI for

seven years and one year for the respective offences for which he

was convicted. The judgment and order of conviction was

passed by the Additional Sessions Judge, Pune on 31.1.2015.

2. The case of the prosecution in nutshell is that in the

evening of 18.1.2010 PW-1 complainant had been to the house of

his friend one Arun Shingane (PW-3). That time, said Arun

Shingane was not at home but his wife was present. That time,

said PW-1 had occasion to see one Balasaheb Nalawade

(accused No.4) and there was some altercation and hot exchange

of words between them. Apparently, some threats were given by

said accused No.4 to PW-1 complainant. Thereafter the

complainant came back to his home and while taking dinner, he

narrated the incident of such altercation and threat, to his son

(PW-2). That time his cousin brother one Sandip Sabale was

also present in the house. Said Sandip Sabale is the victim who

subsequently died in the incident which took place on that

night. After the meals and after the discussion it was decided

by PW-1, his son and said Sandip Sabale to go to the house of

Arun Shingane (PW-3). It was also decided to reprimand said

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Balasaheb Nalawade for his conduct on that evening of abusing

and giving threats to PW-1. As such, they went to the house of

Arun Shingane at about 10:30 p.m. or so. On reaching the

house, they met Arun Shingane and thereafter they came in

front of the house of Arun Shingane on the road. The house of

said Balasaheb Nalawade was situated in front of the house of

Arun Shingane beyond the road. PW-1 called Balasaheb

Nalawade outside his house and in fact there was again some

altercation and hot exchange of words. By that time, other co-

accused also came there including the present appellant /

original accused No.1 Kailas Nalawade who is son of said

Balasaheb Nalawade. All the four accused started assaulting

PW-1, PW-2 and PW-3.

3. In the midst of the fight present appellant went back to

his house and brought one knife. According to prosecution said

knife is Article 'A' before the Court. Said knife is having blade

length of 5 inches and handle length of about 5 inches.

Admittedly said knife produced before the Court as Article 'A' is

having sharp-edge at one side and blunt on the other. This

aspect is of much significance as argued by learned Counsel for

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the appellant for canvassing the argument that definitely this

knife must not have been used for the assault on PW-2 and also

assault on PW-3, mainly considering that the injuries received

by them were clean-cut injuries and not having any blunt edge

margin for one side.

4. According to the case of prosecution during the assault

by means of knife, present appellant initially assaulted on the

back of PW-2 causing bleeding injury. On this PW-1 and said

Sandip Sabale rushed ahead to hold PW-2. That time present

appellant stabbed Sandip on the left side of his chest with the

help of knife he had brought from the house. Apparently, it was

a single blow but on the vital part of the body and it pierced

through and through in the chest cavity thus causing apparent

instantaneous death. After the incident the injured was taken

to the hospital but he was declared dead on arrival. PW-1 asked

his son (PW-2) to go to the police station and report the matter.

Accordingly PW-2 and one of his friends by name Kadam went

to the police station. PW-2 was enquired by the police but he

could not understand whether the police wrote down anything

but he was given yadi and he was sent for medical check-up. He

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was examined by one Dr. Santpure (PW-8) for the injuries

sustained by him. The injury sustained by the said PW-2 is

described by the Medical Officer (PW-8). According to PW-8 said

injury was on the back left side para spinal intra scapular to

lumbar region oblique injury 1.5 cms X 1 cms X ½ cms, muscle

deep and margins were sharp. The injury was fresh and within

24 hours.

5.

Thereafter said PW-2 and his friend Kadam went to the

hospital where by then deceased Sandip Sabale was already

taken. Thereafter PW-1 attended the police station and lodged

his complaint at early hours of 19th January, 2010. The offence

was registered initially under Section 302 of IPC and other allied

offences, against all the four accused persons and it was

registered at about 3:00 a.m.. Thereafter spot panchnama was

conducted. The clothes of the victim Sandip and also the

clothes of the accused persons and clothes of PW-2 were taken

charge of under panchnama. At this juncture it must be

mentioned that the clothes of PW-2 and clothes of the accused

persons were taken under panchnama as stated by Senior PI

(PW-11) who was the officer who conducted those panchnamas

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in presence of panchas. Both the panchas could not be

examined as according to PW-11 one panch had died and

another panch was blind. It is not ascertained during recording

of the evidence before the trial Court as to whether the

investigating agency has initially taken a blind person as panch

or the said panch became blind during the pendency of the

trial. However, the fact remains that none of the panchas were

examined so far as recovery of clothes from the person of the

accused and clothes of PW-2 are concerned. On 19.1.2010 all

the four accused were arrested.

6. During the trial, total 12 prosecution witnesses were

examined. Out of them, important witnesses are PW-1, PW-2

and PW-3 i.e. the complainant, his son and his friend Arun

Shingane. PW-4 is the pancha so far as inquest panchnama on

the dead body of Sandip Sabale is concerned. However, this

pancha has turned hostile. PW-5 is the spot pancha and PW-6 is

the pancha regarding seizure of clothes of the deceased. PW-7 is

one doctor Nanaware who treated the accused No.1 i.e. the

present appellant and observed that there was small wound on

the right temporal region of head and said PW-7 Doctor had

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dressed the said wound and issued the certificate and thus

examination of said appellant was done on 18.1.2010 at Pooja

Hospital when the appellant had attended said hospital. A

medical certificate to that effect was given by PW-7 and it was

taken on record as Exhibit-44 before the trial Court. The injury

as mentioned in the certificate is small contusion on right

temporal region of head and the examination was done at about

11:00 p.m. on 18.1.2010. PW-8 is another doctor Santpure who

had examined PW-2. The injuries observed by said PW-8 are

earlier detailed in this judgment. PW-9 is a pancha so far as

recovery of knife at the instance of the appellant is concerned.

This panchnama was conducted on 22.1.2010 and according to

the case of prosecution the appellant made a voluntary

statement and produced the knife Article 'A' from his house and

it was taken charge of by the police. Much is argued on this

knife and the delay caused sending it to the Chemical Analyzer

and said arguments shall be dealt in detail hereunder at the

appropriate place. PW-10 is Dr. Khan who had conducted

postmortem on deceased Sandeep Sabale. Last two prosecutin

witnesses PW-11 and PW-12 are the police officers. PW-11 has

conducted the investigation and was the officer in whose

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presence the clothes of the accused persons were taken. As

mentioned earlier the panchas regarding the seizure of cloths of

the accused are not examined. PW-12 is the police officer who

registered the first information report given by PW-1 and also

conducted the spot panchnama.

7. Firstly it is to be ascertained whether Article 'A' which

is produced before the Court during the trial was the weapon of

assault and whether it was recovered at the instance of the

appellant. So far as recovery of Article 'A' is concerned, panch

witness (PW-9) is the witness. However, his cross-examination

show various things which render his testimony vulnerable and

unacceptable. During cross-examination he has stated that he

has not read the panchnama. He admitted that his house and

the police station are at a distance of 10 minutes and further

admitted that occasionally whenever Sangvi police come for some

work he go with them but still he denied the suggestion that the

police were known to him but then accepted that he knew one

police constable Mr.Shivale being his friend. He also accepted

that he work in the house of said police constable. The effect of

his substantive evidence goes to show that in his presence the

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appellant / accused did not make any voluntary statement and

that he was asked to accompany the police for recovery of knife.

In the cross-examination he has stated that constables told him

that he has to go for panchnama of knife which was to be taken

out. According to him during the spot panchnama

procedure the accused was handcuffed and police were

interrogating the accused in the jeep. According to this witness

the neighbours had gathered on the spot during the panchnama

and police went inside and said that they got the knife and then

they said panchas that they all should go.

8. Apart from the effect of the substantive evidence of

said pancha (PW-9), the another circumstance as to whether said

knife Article 'A' used in the assault is required to be ascertained.

For this purpose, the description of the knife is required to be

construed. Admittedly the knife is having blunt edge on one side

and sharp edge on the other and having blade of about 5 inch of

length. As against this, the description of the injury to PW-2, as

reported by the examining Doctor (PW-8) show that the injuries

were muscle deep and margins were sharp. During cross-

examination, said PW-8 had answered to the following effect in

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para-6 of the notes of evidence :

"6] One side of knife Art A is sharp and

other side is blunt. I have mentioned in MLC papers that both the margins of injury are clean cut. It is not true to say that my opinion is not correct. I have not personally measured the dimension of knife - Art A."

9. Now so far as the injury sustained by the victim

deceased Sandip Sabale, the substantive evidence of PW-10

Dr. Khan is of much importance. During the post-mortem said

Doctor observed the following external injuries.

"stab injury 2.5 cm X 1 cm cavity deep on right side of chest, costochondral region and penetrating the thorasic cavity. The injuries were

antemortem."

During the cross-examination, the Doctor has

admitted that he had not mentioned the margins of the injury in

column No.17 of the postmortem notes but stated that it was a

single stab injury. On this aspect of injuries whether can be

possible by Article 'A', learned APP vehemently argued that both

these doctors i.e. PW-8 and PW-10 have opined that the injuries

they observed were possible by Article 'A' i.e. knife which was

shown to the doctors at the time of recording of evidence before

the Court. In fact this solitary answer by way of opinion cannot

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be read in isolation but it is required to be read in juxtaposition

of the answers given by the doctors during their cross-

examination. The specific admissions by these doctors are

already reproduced hereinabove. At the cost of repetition it can

be said that the margins of the injury sustained at the back of

PW-2 were clean cut margins. Again said Doctor (PW-8) had

mentioned that in MLC papers he had mentioned margins of the

injury as clean-cut.

10. So far as the injury of the victim, the substantive

evidence of doctor PW-10 is to the effect that he has not

mentioned the margins of injury in column No.17 of the

postmortem notes. Moreover, said PW-10 had answered that the

police have not referred said weapon Article 'A' for his opinion.

11. Considering above evidence, in the opinion of this

Court definitely the prosecution has failed to establish that

Article 'A' was the weapon of assault and that it was the knife

which was recovered at the instance of the present appellant.

12. Now this leads this Court to scrutinize the substantive

evidence of PW-1 and PW-2 on one side and that of PW-3 on the

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other side. Apparently, now the entire case of prosecution rests

on the oral testimony of these witnesses.

13. Admittedly said PW-3 Arun Shingane, friend of PW-2,

did not support the case of prosecution on the vital aspect as to

actual incident of assault on PW-2 and deceased Sandip Sabale.

Though PW-3 gave evidence as to on that night his friend

complainant i.e. PW-1 and others i.e. PW-2 and victim Sandip

had been to his house on that late night and there was some

sort of altercation but then his testimony rests there so far as

supporting the case of prosecution and further he stated that he

and his son went inside his house for having dinner. Further

said PW-3 says that he alone came down at the column gate of

his house after the meals and he saw Sandip was lying on the

floor. Sandip was alive. According to this witness he and PW-1

went to bring rickshaw and they took Sandip to Thakur Hospital

and from there to Medi Point Hospital. According to this witness

Pandurang Jadhav (PW-1) came on motorcycle to Medi Point

Hospital. The doctors at Medi Point Hospital declared him dead.

According to this witness, Sandip had sustained injury in the

scuffle. In the examination-in-chief itself said PW-3 further

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stated in para-3 to the following effect :

"3] It did not happened that Balasaheb

Nalavade has assaulted Pandurang Jadhav with kick and first blows in my presence."

. As such, this witness was declared as hostile and his

cross-examination was allowed to be taken by the prosecution.

Portion marked A, B, C and D were put to him but he denied the

correctness of these contents and those contents are to the effect

that on the call given by PW-1 all the four accused came and

accused No.4 Balasaheb Nalavade told said PW-3 that he had

brought the killers and the present appellant Kailas went

running inside the house and brought the knife and said Kailas

stabbed Shrikant i.e. PW-2 and when Sandip went to rescue he

was also stabbed by Kailas. In fact this PW-3 did not support

the case of prosecution, as mentioned earlier, on this vital

aspects.

14. During the arguments learned APP submitted that

though on the actual factum of assault and stabbing PW-2 and

the victim, this PW-3 had not supported the case of prosecution,

the rest of the facts are admitted by him as to presence of PW-1,

PW-2 and the victim Sandip at his house and PW-1 insisting that

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accused No.4 be called and be enquired regarding the incident

on that evening. It is further argued that the substantive

evidence of PW-1 and PW-2 corroborates each other as to the

role attributed to the appellant of going inside his house and

bringing knife Article 'A' and stabbing PW-2 on his back and

then giving one stab on the vital part of the chest of victim

Sandip. It is further argued that these witnesses cannot be

termed as interested witnesses as they are natural witnesses and

one of them is injured.

15. Also according to the case of prosecution and also as

per the substantive evidence of PW-1 after the incident he asked

PW-2 to go to the police station and lodge report and according

to him PW-2 went to the police station. However, it is still

admitted position that though according to PW-2 police enquired

with him but there was no disclosure by him as to the actual

happening of the events and also no disclosure of the name of

the appellant as the assailant and stabbing PW-2 and deceased

Sandip by means of knife after taking knife from his house. In

fact it is also factual position that thereafter PW-2 went to Medi

Point Hospital as he knew that the victim had been admitted

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there. According to this witness, in the hospital also the police

persons had arrived and were enquiring as by that time the

victim Sandip Sabale was already dead and apparently it was a

case of murder. Even according to the substantive evidence of

PW-1 police were there in the hospital but still no specific

information was given to the police by giving the factum of the

incident and name of the appellant as the assailant. Apparently

there were two opportunities for PW-2 to inform the police

immediately when he first went to the police station from the

scene of offence and secondly when the police officers were

present in the hospital, but, on both these occasions there was

no specific complaint to the police. Also there was opportunity

to PW-1 to inform the incident immediately to the police when

the police had arrived at Medi Point Hospital but the substantive

evidence of PW-1 shows that subsequently he went to the police

station and gave detailed complaint taking names of the accused

persons and name of the present appellant as assailant.

According to PW-1 and PW-2 there was discussion at the

hospital also and PW-3 Arun Shingane was also present.

Apparently according to the case of prosecution said Arun

Shingane was on cross terms with Balasaheb accused No.4 and

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in fact according to the substantive evidence of PW-3 Arun

Shingane, PW-1 had come to this place for asking explanation

regarding conduct of Balasaheb which occurred in the evening of

18.1.2010.

16. By pointing out these circumstances and no immediate

lodging of the complaint and apparently lodging of the complaint

after due deliberation, learned Counsel for the appellant

submitted that it was in fact a plan to implicate the appellant

and other co-accused in the incident of assault otherwise there

would have been lodging of immediate complaint with the police.

17. Considering the above factual position and considering

the admissions given by PW-2 and also omissions brought on

record from his substantive evidence to the effect that he knew

the accused being neighbours of PW-3 and that he and victim

Sandip went to rescue his father PW-1 when Balasaheb was

assaulting him and on the aspect as to having street lights in the

said area of scene of offence. As such, scrutinizing the

substantive evidence of PW-1 and PW-2 on one side with that of

PW-3 and considering the factual position that article 'A' knife

could not have been the weapon of assault and could not have

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been recovered at the instance of the appellant, in the opinion of

this Court, it must be said that the prosecution has not reached

that standard of proof required for establishment of guilt for the

offences charged. It must be said that the learned trial Sessions

Judge had erred in appreciating the evidence of PW-1 and PW-2

with that of PW-3 and other circumstantial evidence and as such

interference with the impugned order is warranted. The appeal is

disposed of with following order :ig :: O R D E R ::

i Criminal Appeal No.520 of 2015 is allowed.

ii The impugned judgment and order dated 31.1.2015 passed by the learned Additional Sessions Judge, Pune, in Sessions

Case No.411 of 2010 is quashed and set aside to the extent of

present appellant. The appellant/accused No.1 is acquitted of the offence punishable under Sections 304 (Part-II) and 324 of I.P.C..

iii The appellant/accused No.1 shall be released from jail custody if not required in any other matter;

iv If the fine amount is already paid, the same shall be returned

to the appellant;

v Criminal Appeal is disposed of accordingly. Bail application is also disposed of as infructuous.

( A. R. JOSHI, J.)

Deshmane (PS)

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