Bombay High Court
Bishnu S/O Pranu Dewangan (In ... vs The State Of Maharashtra, Through ... on 7 October, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO.349 OF 2015
APPELLANT: Bishnu S/o Pranu Dewangan, Aged
about 54 years, Occu: Labourer, R/o
Masala Toli, Tah. Ramtek, Dist:
Nagpur.
-VERSUS-
RESPONDENT: The State of Maharashtra Through
P.S.O. P. S. Ramtek, Tah. Ramtek,
ig Dist: Nagpur.
Shri S. G. Gadmade, Advocate for the appellant.
Shri R. S. Nayak, Additional Public Prosecutor for the respondent.
CORAM: B.P.DHARMADHIKARI AND A.S.CHANDURKAR, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD: 28-09-2016.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 07-10-2016.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
1. The appellant herein takes exception to his conviction
for having committed offence under Section 302 of the Indian
Penal Code (for short the Penal Code). By judgment dated
31-1-2014 passed by the learned Additional Sessions Judge-3,
Nagpur, the appellant has been sentenced to suffer rigorous
imprisonment for life and to pay a fine of Rs.500/-.
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2. It is the case of the prosecution that the appellant was
residing along with his wife - Shamabai and his daughter Nargis.
Nargis was mentally ill and the appellant was was giving her
treatment. On 15-5-2012, the appellant alongwith his daughter
had been to the Aurvedic Doctor and had returned back at 1.30
p.m. Between 7 p.m. to 8 p.m. after taking dinner the appellant
gave some medicines to his daughter. Nargis took the medicine
and thereafter spat out the same. On this ground, the appellant
got annoyed on her. He took an axe/hoe from the house and
started running after his daughter. In front of the house of one
Rekha Mallewar, the appellant gave three blows to Nargis near her
neck. After she collapsed there, the appellant returned home and
gave blows to his wife. She died on the spot. The appellant kept
the axe in the Courtyard and went away on his bicycle. On
receiving necessary information, the police conducted
investigation. The appellant was arrested. The appellant was
charged with having committed an offence punishable under
Section 302 of the Penal Code. After the charge was framed, the
appellant did not plead guilty and was tried. At the conclusion of
the trial, the appellant was convicted in the manner stated herein
above.
3. Shri S. J. Gadmade, the learned Counsel for the
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appellant submitted that the appellant was not liable to be
convicted on the basis of the evidence available on record. He
submitted that though it was claimed that there were eye
witnesses to the incident in question, the deposition of said eye
witnesses did not corroborate the evidence on record. It was
submitted that the medical evidence as regards nature of injuries
sustained by the deceased did not support the version of the eye
witnesses inasmuch as though it was stated by PW-8 Deochand
that the appellant had given 2 to 3 blows on the backside of the
neck of his daughter, the postmortem report did not indicate any
such injuries on the body of the deceased. It was then submitted
that the description of the spot as deposed by the witnesses did not
match the description as per the spot map at Exhibit-19. Though
the appellant was arrested on 16-5-2012 at 1.30 a.m., his clothes
that were stated to have blood stains were seized on 17-5-2012 at
2 p.m. The incriminating material though available on the spot on
15-5-2012 was not seized immediately, but the seizure was
effected on 16-5-2012 at 6.30 a.m. It was, therefore, submitted
that on the basis of the evidence available on record, the
conviction of the appellant was liable to be set aside. In support of
his submissions, the learned Counsel placed reliance upon the
judgments of the Hon'ble Supreme Court in Amar Singh and others
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v. State of Punjab AIR 1987 SC 826, Kansa Behera v. State of Orissa
AIR 1987 SC 1507 and Vishvash Machhinder Saptal Vs. The State of
Union Territory 2016 ALL MR (Cri) 3282.
4. Shri R. S. Nayak, the learned Additional Public
Prosecutor for the State supported the conviction of the appellant.
According to him, the deposition of the eye witnesses clearly
implicated the appellant and the learned Judge of the Sessions
Court was justified in accepting the said evidence. It was
submitted that the presence of the eye witnesses was natural and
they had no enmity with the appellant. The incriminating material
had been seized from the courtyard of the house of the appellant
and in absence of any explanation in that regard the appellant was
rightly held guilty. The injuries on the body of the deceased were
caused by the blows given by the axe. It was, therefore, submitted
that the conviction was liable to be maintained. The learned
Additional Public Prosecutor relied upon the judgment of the
Hon'ble Supreme Court in Vadivelu Thevar Vs. The State of Madras
AIR 1957 SC 614.
5. We have heard the learned Counsel for the parties at
length and with their assistance, we have also perused the records
of the case. Since the case of the prosecution is based on the
version of eye witnesses who had claimed to have witnessed the
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crime, their evidence is required to be considered first. PW-7 -
Urmila was examined below Exhibit-43. She is the daughter-in-law
of the appellant. She has stated that she was residing with her
husband and in laws together. Her mother-in-law Shamabai and
sister-in-law Nargis were undergoing treatment. She has then
stated that on 15-5-2012 after the appellant had returned home
from the hospital after giving treatment to Nargis, they had food in
the evening. The appellant had given medicine to Nargis, but after
taking the same she had immediately spat out the same. This
annoyed the appellant and he picked up an axe that was lying in
the house. The appellant chased Nargis who went to the courtyard
of Rekhabai Mallewar and inflicted blows on her. The appellant
then came back and went inside the house and also assaulted
Shamabai. This witness then lodged report with the police.
Thereafter said witness was declared hostile. On her
cross-examination by the prosecution, she admitted that when the
appellant started chasing Nargis, she had tried to stop him, but he
did not listen to her. She further stated that the appellant was
wearing an orange T Shirt and black pant on that day. In her
subsequent cross-examination that was conducted after more than
a month, she denied the entire version deposed by her earlier.
Perusal of the deposition of this witness indicates that
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though initially she had supported the case of the prosecution, she
turned hostile subsequently and thereafter denied having seen
anything. It would therefore not be safe to rely upon her sole
testimony and it would be necessary to consider if there is any
other corroborative evidence on record.
6. The next eye witness examined is PW-8 - Deochand
Chaure who was examined vide Exhibit-51. This witness claimed
to be the neighbour of the appellant and he stated that at about
8.30 p.m. when he was sitting in the Porch of the house, he saw
the appellant chasing his daughter with an axe in is hand. In the
courtyard of Rekha Mallewar, the appellant gave two to three
blows on the backneck of his daughter. The appellant then
returned to his house. The appellant's wife was taking meals in
the Porch of her house when the appellant assaulted her. The
appellant then left the place by throwing the weapon. In his cross-
examination this witness admitted that the house of Rekha
Mallewar was about 100 ft. away from his house and that there
was no electric pole in the lane where his house was situated.
From the deposition of this witness, it can be gathered
that he had stated that the appellant had given two to three blows
on the back neck of his daughter and had also assaulted his wife in
the Porch. He admitted that the distance of the house of Rekha
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Mallewar was 100 ft. and that there was no electric pole in the
said lane.
7. PW-10 Dr. Sachin Uikey was examined below Exhibit-
61. He conducted the postmortem on both the victims. As per the
postmortem report of Nargis at Exhibit-14, there was a fracture on
the second and third back rib of Nargis and that there were
injuries to the lungs. There was also a lacerated wound over the
right shoulder and over the base of neck backside. On the
question put by the Court, this witness admitted that puncturing of
the lungs of Nargis corresponded to the injuries at Sr. Nos.1 to 4 in
the postmortem report.
The postmortem report of Shamabai was placed on
record at Exhibit-66.
8. From the aforesaid material on record, it can be seen
that PW-7 Urmila had not seen actual assault by the appellant on
Nargis. This assault was witnessed by PW-8 Deochand who stated
that the appellant had given 2 to 3 blows on the back neck of his
daughter. If his version about the assault is compared with the
medical evidence on record at Exhibit-14, it can be seen that
Nargis had various other injuries resulting in fracture of the second
and third rib as well as to her lungs. It can, therefore, be seen that
the version of PW-8 - Deochand is not consistent with the medical
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evidence as regards the nature of injuries on Nargis. As observed
by the Hon'ble Supreme Court in Amarsingh and others (supra) if
the evidence of the prosecution witness is inconsistent with the
medical evidence then unless the same is properly explained, the
case of the prosecution would be affected.
9. Another aspect that requires consideration is the fact
that PW-8 Deochand had stated that house of Rekha Mallewar was
100 ft. away from his house and that there was no electric pole in
the said lane. The incident took place at about 8.30 p.m. The spot
map at Exhibit-19 that was prepared by PW-1 Shivcharan indicates
the location of the house of the appellant and the house of Rekha
Mallewar. However, the house of PW-8 is not indicated therein.
Similarly, the spot panchanama at Exhibit-39 indicates the
presence of the house of this witness in the vicinity of the old
house of the appellant. There is no material placed on record to
indicate existence of two houses of the appellant. It also indicates
that the house of the appellant was at a distance of 140 ft. from
the house of Rekha Mallewar. Considering the topography
brought on record coupled with the fact that the incident took
place at 8.30 p.m. without there being any electric pole in the
vicinity, a doubt is created with regard to PW-8 Deochand
witnessing the incident in question.
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10. The appellant came to be arrested as an accused in the
aforesaid crime on 16-5-2012 at about 1.30 a.m. His clothes were
seized as per Exhibit-53 on 17-5-2012 at 2 p.m. from the person
of the appellant as admitted by the Investigating Officer PW-11.
The seizure report indicates that the orange T Shirt and black full
pant worn by the appellant that were seized had blood stains. The
report of the Chemical Analyzer at Exhibit-4, however, indicates
that on the T Shirt seized from the appellant, there were no blood
stains. The Pant seized from the appellant had some blood stains
but the blood group could not be determined. Considering the fact
that the seizure report at Exhibit-53 indicates blood stains on the T
shirt and absence of the same in the report of the Chemical
Analyzer is a factor in favour of the appellant. Moreover, it cannot
be expected that when the appellant was arrested on 16-5-2012 at
about 1.30 p.m. wearing the same clothes, the blood stains were
not noticed and that these clothes were ultimately seized from his
person only on 17-5-2012 after more than 24 hours from his
arrest.
11. Similarly, PW-11 the Investigating Officer admitted
that the spot panchanama was not prepared immediately after the
incident as it was night and that it was prepared on the next day.
He further admitted in his cross-examination that from the time of
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the incident till the preparation of the spot panchanama, the axe
was lying on the spot of the incident. The explanation that as the
crime was not yet registered, the axe was not seized is hardly
convincing. If the incriminating weapon was lying at the site itself
near the body of Shamabai, there is no reason whatsoever for not
seizing the same immediately after the police came to the scene of
the incident. This another circumstance which castes a doubt on
the case of the prosecution.
ig It can thus be seen that there are various
circumstances referred to above that cast a doubt as to the case of
the prosecution. If the entire evidence is considered as a whole, it
cannot be said that the prosecution has proved its case beyond
reasonable doubt. The investigation as done by the authorities has
resulted in various aspects going unanswered due to which the
appellant would be entitled to the benefit of doubt. The
deposition of PW-8 Deochand is not corroborated by the other
material on record brought by the prosecution and hence the ratio
of the decision of the Hon'ble Supreme Court in Vadivelu Thevar
(supra) cannot be made applicable to the facts of the present case.
On this ground, the appellant would be entitled for benefit of
doubt and thus, would be liable to be acquitted.
Considering the manner in which the investigation was
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conducted, in the facts of the present case we deem it proper to
direct the respondent - State to take appropriate steps in the light
of directions issued by the Hon'ble Supreme Court in State of
Gujarat Vs. Kishanbhai and others (2014) 5 SCC 108. For reporting
compliance, the matter be listed on 3-4-2017.
13. In view of aforesaid, the following order is passed:
(1) The judgment dated 31-1-2014 in Sessions Trial
No.343/2012 is quashed and set aside. The appellant stands
acquitted of the offence alleged to have been committed by him.
The appellant be released forthwith if his custody is not required
in any other matter. The articles seized be destroyed after expiry
of the period of appeal.
(2) The criminal appeal stands allowed with no order as to
costs.
JUDGE JUDGE
//MULEY//
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