Bombay High Court
Rikesh Shrikrishna Wat (In Jail) vs State Of Maharashtra, Through ... on 10 March, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
CRIMINAL APPEAL NO. 531 OF 2013
Rikesh Shrikirshna Wat,
aged 25 yrs. Occu. Nil,
R/o Shrikrushna Nagar,
Darwha, Tal. Darwha,
Distt. Yavatmal.
(Presently lodged in Jail). APPELLANT.
ig VERSUS
State of Maharashtra
through P. S. O. Pathrot,
Tah. Achalpur, District
Amravati. RESPONDENT.
Shri Shriniwas Deshpande, Advocate (Appointed) for the appellant.
Smt. S. S. Jachak, Additional Public Prosecutor for the respondent.
CORAM: B. R. GAVAI AND
A. S. CHANDURKAR JJ.
Dated : MARCH 10, 2016.
ORAL JUDGMENT: (Per A. S. CHANDURKAR J.)
The appellant who has been convicted for an offence punishable
under Section 302 of the Indian Penal Code and has been sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs. 1000/- has challenged
the same in the present appeal.
2] The case of the prosecution as can be gathered from the material
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on record is that, one Shrikrishna Wat was married to one Leelabai and the
appellant was their son. On account of disputes between said Shrikrishna
and his wife, his wife used to reside at Darwah along with the appellant and
his brother. Shrikrishna was residing along with his mother at village Pohi.
According to the prosecution after the death of his mother, Shrikrishna was
residing alone. On 09.06.2011 the appellant had come to the house of
Shrikrishna and there was a quarrel between them. The appellant was asking
his father as to why he was not maintaining his mother. The appellant
thereafter assaulted Shrikrishna with a dagger on his neck and other parts of
the body. The cousin brother of Shrikrishna-Sunil Mate who was also
residing in the same village was informed by Pramod Kathe and Manda
Dandge about the assault on Shrikrishna by the appellant. Said Sunil Mate
thereafter took Shrikrishna to the Sub District Hospital at Achalpur in an
autorikshaw but Shrikrishna was declared dead. Thereafter said Sunil Mate
lodged a report on 10.06.2011 at 2.45 a. m.
3] After completing the investigation the charge sheet came to be
filed in the Court of learned Judicial Magistrate First Class Achalpur. As the
offence was triable by the Sessions Court the case was committed for trial.
The appellant pleaded to be not guilty. He was accordingly tried and at the
conclusion of the trial the appellant came to be convicted for the offence
punishable under Section 302 of the Indian Penal Code. Hence this appeal.
4] Shri Shriniwas Deshpande, the learned counsel for the appellant
submitted that the appellant had been falsely implicated in the crime. He
submitted that there was no credible evidence on record on the basis of
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which the appellant could have been convicted. He submitted that the
alleged incident occurred on the night of 09.06.2011 and it has come on
record that on account of load-shedding there was darkness in the village.
The deposition of P. W. 2 Padma and P. W. 8 Ramchandra who were claimed
to be eye witnesses by the prosecution could not be relied due to various
admissions given by them in their cross examination. Though P. W. 8
Ramchandra admitted that on the day after the incident he was with the
police, he did not disclose anything to them and only on the second day his
statement came to be recorded. He further submitted that the stand as taken
regarding the deceased carrying the torch could also not be believed on
account of inconsistencies in the evidence in that regard. Moreover, the
defence as raised was a possible defence and in absence of any credible
evidence being led by the prosecution, the conviction of the appellant could
not be sustained. He therefore submitted that if the evidence of P. W. 2 and
P. W. 8 is excluded from consideration then there is no other evidence on the
basis of which the conviction could be sustained. He, therefore, submitted
that the appellant was entitled to be acquitted.
5] Smt. S. S. Jachak, learned Additional Public Prosecutor supported
the judgment of the trial Court and submitted that considering the entire
evidence on record the conviction of the appellant was justified. She
submitted that both the eye witnesses namely P. W. 2 Padma Dandge and P.
W. 8 Ramchandra Kathe had witnessed the appellant assaulting his father
and therefore the prosecution had proved the charge against the appellant. It
was further submitted that the recovery of the incriminating material along
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with the report of the Chemical Analyser clearly indicated the involvement of
the appellant who had a grudge against the deceased on the ground that the
deceased was not properly maintaining the mother of the appellant. It was,
therefore, submitted that the judgment of the Sessions Court did not require
any interference and the conviction of the appellant was liable to be
maintained.
6] With the assistance of the learned counsel for the parties we have
gone through the records of the case as well as the impugned judgment. To
bring home the charge against the appellant the prosecution examined
thirteen witnesses. The appellant examined one witness in support of his
defence. It would first be necessary to consider as to whether the death of
Shrikrishna was homicidal in nature. In that regard the prosecution has
examined Dr. Vishalsingh Tawar vide Ex. 33. He conducted the postmortem
and placed on record the report at Ex. 34. The cause of death mentioned
therein is due to haemorrhagic shock secondary to injury to internal vital
organs. Against Column No. 17 there is a reference to various stab wounds.
Considering the nature of injuries sustained resulting in death, it can be
concluded that the death of said Shrikrishna was homicidal.
7] The prosecution has then examined the informant Sunil Mate as
P. W. 1 below Ex. 18. He has stated that the deceased was his cousin and
that the wife of the deceased-Leelabai had left the company of Shrikrishna
and she was residing separately. He has stated that when the appellant used
to visit his father under influence of liquor he used to ask him as to why he
was not maintaining his mother. He has then stated that on 09.06.2011
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Manda Dandge and Pramod Kathe had come to his house at 10 p. m. and had
told him that the appellant was assaulting Shrikrishna. He immediately
rushed to his house and found Shrikrishna in a bleeding condition. He was
taken in a vehicle to the Sub District Hospital, Achalpur where he was
declared dead. He thereafter went to the police station and lodged his report
which is at Ex. 19. In his cross examination he has stated that at the time of
incident on account of load-shedding there was no electricity. He has stated
that the incident did not take place in his presence and though Shrikrishna
was alive when he reached there, he was not talking. Various omissions in
his report were put before him in his cross examination.
8] The prosecution has then relied upon the deposition of two eye
witnesses. P. W. 2 Padma Kathe was examined vide Ex. 30. She has stated
that on 09.06.2011 at about 4 p. m. she had received a call from the
appellant and he had told her that he would be coming to the village on that
day. This message was given by her to the father of the appellant. She has
then stated that at 8 p. m. Shrikrishna came back to his house and after some
time the appellant also came there. The appellant, his father and one Deepak
Fender were sitting in the house and the deponent was preparing chapatis.
She has then stated that she could hear abuses and altercations between the
appellant and his father. She has stated that she could hear the incident as
her house was adjoining to the house of Shrikrishna. When she came out she
saw the appellant running behind his father after which the appellant caught
hold of him and assaulted him with a knife like weapon. The appellant
thereafter left the place after which Shrikrishna was taken for medical aid.
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In her cross examination she has stated that between the house of
Shrikrishna and her house there was a wall due to which she could not be
aware of what was going on on the other side. Portion of her house was not
visible to Shrikrishna because of the wall and it was not possible to gather as
to what talk was going on on the other side. She has further stated that as
there was no electricity there was darkness. She has then stated that on the
second day of the incident she had read about it in the newspapers. After
reading the same she stated to the police that the assault was made by the
appellant. She has admitted that she did not know anything about the
incident.
9] The other eye witness examined by the prosecution is P. W. 8
Ramchandra Gathe at Ex. 48. This witness has stated that he was acquainted
with the appellant as he used to visit his father Shrikrishna. He has stated
that the appellant used to quarrel with his father. He has stated that on
09.06.2011 when he was sitting in front of his house he heard a quarrel
going on in the house of Shrikrishna. He saw the appellant giving a blow
with a knife like weapon on the neck of Shrikrishna. Shrikrishna was holding
a torch in his hand and on account of repeated blows, Shrikrishna sustained
injuries.
In his cross examination he has stated that on the first day after
the incident when the police had come there he was with them. He however
did not disclose anything to the police. Only when the panchanama took
place on 11.06.2011 that his statement was recorded. He had admitted that
there was no electricity on the day of the incident.
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10] One Deepak Fender was examined as P. W. 9 below Ex. 49. He
was pancha witness when the torch was seized as per Ex. 50. He has stated
that his signature was taken on the panchanama when he was returning from
the field but the torch was not shown to him. It is to be noted that though
P. W. 2 Padma has stated that said Deepak Fender was also sitting along with
the appellant and his father on 09.06.2011, the prosecution has not
examined him in that regard. P. W. 4 at Ex. 37 and P. W. 6 at Ex. 42 were
declared hostile. The prosecution also examined a Revenue Inspector as
P. W. 11 below Ex. 53. This witness had prepared the sketch map to show
the location of the house of Shrikrishna and those of the neighbors. P. W. 12
Ashok Dhandwe was examined below Ex. 60 to prove the seizure of the
clothes of the accused. Seizure reports are at Ex. 61 and 62. The blood
group of the deceased could not be determined as per the report of the
Chemical Analyser at Ex. 78 as the results were inconclusive. Similarly the
blood group of the appellant also could not be determined as per the report
at Ex. 79 as the results were inconclusive. The knife blade was found stained
with blood of Group A as per Ex. 80 and the clothes worn by the appellant
were also stained with blood of group A. The Investigating Officer was
examined as P. W. 13 below Ex. 63. He has admitted in his cross
examination that at the time of incident there was no electricity supply in the
village.
11] From the aforesaid evidence on record it can be seen that on the
night of the incident there was no electricity in the village on account of load
shedding. P. W. 2 has clearly admitted that she read about the assault in a
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newspaper and therefore she stated to the police that the assault was made
by the appellant. As she admitted that she did not know anything about the
incident, her deposition does not assist the case of the prosecution. In so far
as P. W. 8 is concerned, it is to be seen that he was with the police on the
immediate next day of the incident but he did not state anything to them.
Only on the third day after the incident his statement was recorded. In the
natural course of events it was expected that he should have stated whatever
he had seen immediately on the next day of the incident when the police
first came there. Considering the fact that there was no electricity at the time
of the incident, his deposition does not inspire confidence so as to rely upon
the same for the purposes of holding the appellant guilty.
12] Once it is found that the deposition of P. W. 2 does not support
the prosecution and the deposition of P. W. 8 does not inspire any
confidence, the other evidence on record is not of such nature that could be
relied upon for convicting the appellant. It may be noted that the first
informant-P. W. 1 had deposed that Manda Dandge and Pramod Kathe had
come to his house at 10 p. m. on 09.06.2011 and had informed him about the
assault by the appellant on Shrikrishna. However, the prosecution has not
chosen to examine these two persons. As regards the seizure of the torch in
question is concerned, the pancha witness P. W. 9 has stated that torch was
already taken by the police from the first informant after which the seizure
report was prepared and his signatures were obtained. He has stated that the
torch was not shown to him. The first informant P. W. 1 however does not
state of any such thing nor does he refer to handing over the torch to the
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police.
12] The defence sought to be raised by the accused in his statement
under Section 313 of the Code of Criminal Procedure, 1972 indicates that
while lifting his injured father in the autoriksha there were blood stains on
his clothes is therefore rendered probable. Thus considering the entire
evidence on record it will have to be held that the prosecution has failed to
prove the guilty of the appellant beyond reasonable doubt. The appellant
would therefore be entitled for the benefit of doubt thus leading to his
acquittal.
13] In view of aforesaid discussion the following order is passed:
The appeal is allowed. The judgment of conviction in
Sessions Trial No. 75 of 2011 dated 09.07.2013 is quashed and set
aside.
Appellant be set at liberty forthwith, if not required in any other
case.
Fees for the learned counsel appointed on behalf of the appellant
are quantified at Rs. 5000/-.
JUDGE JUDGE
svk
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