Yogesh @ Balya S/O Gajanan Dubey vs State Of Maharashtra
2017 Latest Caselaw 1703 Bom

 CRI. APPEAL NO.256.02.odt                    1


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      CRIMINAL APPEAL NO.256 OF 2002



 Yogesh @ Balya s/o Gajanan Dubey,
 Aged about 25 years,
 Occupation-Labourer,
 R/o. Itwari, Nagpur.                              ..               APPELLANT


                               .. VERSUS ..


 The State of Maharashtra,
 through P.S.O. Lakadganj
 Police Station, Nagpur.                           ..           RESPONDENT



                     ..........
 Shri R.K. Tiwari, Advocate for Appellant,
 Ms. T.H. Udeshi, APP for Respondent-State.
                     ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 13, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 10.5.2002 passed by the learned Additional

Sessions Judge, Nagpur in Sessions Trial No.110 of 1998

thereby convicting appellant-accused no.1 of the offence

punishable under Section 304-II of the Indian Penal Code

and sentencing him to undergo rigorous imprisonment for

five years.

2] For the sake of convenience, appellant shall be

referred in his original status as an accused as he was

referred before the trial court.

3] Prosecution case which can be revealed from the

chargesheet and connecting papers thereto may be stated

as under :

(a) Geeta Subhedar was resident of Nikalas

Temple, Joshiwadi, Itwari, Nagpur. Accused were

her neighbours. On 29.5.1997 at around 2.30 pm,

complainant asked accused no.3 Gajanan to

remove bicycle parked by them in front of her

house. That time, accused no.1 Balya alias Yogesh

came there and attacked on the informant. He

abused and threatened to kill the complainant.

She then went inside the house.

(b) On the same day at 5.30 pm, accused

nos.1 to 3 rushed to attack the complainant.

Accused nos.1 and 2 were armed with knives in

their hands. Vitthal Sitaram Subhedar and his

brother Ramaji Sitaram Subhedar intervened to

safeguard complainant Geeta from the attack.

According to prosecution, accused nos.1 and 2

Balya and Raja assaulted Vitthal Subhedar and

Ramaji Subhedar with knives. The blows were

given on chest, abdomen and thigh of Vitthal.

Geeta intervened and she also received injury to

her middle finger of right hand. Both Vitthal and

Ramaji received grievous injuries. They were

admitted to Mayo Hospital. Vitthal succumbed to

the injuries and died.

(c) At around 6.00 pm, Geeta lodged report

with Lakadganj Police Station. Crime No.272/1997

was registered against the appellant for the

offence punishable under Section 307 read with 34

of the Indian Penal Code. Later on, after the death

of Vitthal, offence under section 302 of the Indian

Penal Code was added. Initially, investigation was

conducted by PW-11 PSI Raosaheb Vaidya and then

was handed over to PSI Bendre. Investigating

Officer visited the place of occurrence and

recorded spot panchanama. Earth mixed with

blood and simple earth came to be collected and

seized from the spot. Injured were referred to the

hospital. On 30.5.1997, PSI Vaidya recorded

statement of injured Vitthal.

(d) It appears from the chargesheet that on

30.5.1997 PW-10 Executive Magistrate Ku. Asha

Bodhale was summoned to record dying

declaration of Vitthal. She visited the hospital and

ascertained from the Medical Officer fitness of

patient to give his statement. After doctor

certified, she recorded dying declaration of Vitthal.

Vitthal implicated the accused in the commission

of act of assault. On 31.5.1997, Vitthal died.

                Accused         were      arrested.      The         statements         of

                witnesses were recorded.                 On death of Vitthal,

inquest panchanama was drawn. Dead body was

sent for postmortem. PW-14 Dr. Vipul Ambade

performed postmortem and opined cause of death

as shock due to peritonitis due to complication of

stab injury to abdomen.

                (e)            During   investigation,        blood        stained

                clothes        of victim were seized.            Weapon was

recovered at the instance of accused under Section

27 of the Evidence Act. The said weapon was sent

to Medical Officer for opinion. Seized muddemal

was forwarded to chemical analyser. After

completing investigation, chargesheet was

submitted to the court of Judicial Magistrate, First

Class, Nagpur, who in turn, committed the case for

trial to the Court of Sessions.

4] On committal, charge came to be framed by the

trial court vide Exh.7. They pleaded not guilty and claimed

to be tried. Their defence was of denial and false

implication. They also raised a specific defence that Vitthal

Subhedar and his brother attacked the accused with a knife

and in that attack, there was a scuffle between injured and

the accused and Vitthal received injuries. Accused also

submitted that due to dispute over construction of a latrine,

they were falsely involved.

5] To substantiate the alleged guilt of accused,

prosecution examined in all 14 witnesses. Accused also

examined one defence witness. On scrutiny of evidence

adduced by the parties and taking into consideration

statements made on their behalf, trial court came to the

conclusion that offence under Section 304-II of the Indian

Penal Code has been proved against accused no.1, though

offences for which accused were charged with were not

established by the prosecution. In consequence thereof,

accused no.1 was convicted as stated hereinabove and

accused nos.2 and 3 were acquitted of the offences. Being

aggrieved by the judgment and order of conviction and

sentence, original accused no.1-appellant has preferred this

appeal.

6] Heard at length Shri Tiwari, learned counsel for

appellant and Ms. Udeshi, learned Additional Public

Prosecutor for respondent-State.

7] Learned counsel for appellant vehemently

contended that evidence of prosecution witnesses is at

variance with the case set out in first information report. It

is submitted that complainant, injured witness and

eyewitnesses have given contrary version to the case

projected in first information report and in such situation,

evidence of prosecution witnesses should not have been

believed by the trial court. Learned counsel submits that

first information report being first version of incident has to

be given due weightage. In this connection, reliance is

placed on the decision of the Hon'ble Supreme Court in

Kalyan and others .vs. State of U.P. (AIR 2001 SC

3976).

8] The next contention of learned counsel is that

evidence of PW Nos.1, 2, 3, 5 and 9 materially differs not

only from First Information Report, but also from dying

declaration recorded by Special Executive Magistrate. On

the basis of evidence of these witnesses, trial court has

acquitted accused no.2 to whom similar role is attributed in

First Information Report and wrongly convicted accused

no.1. Learned counsel submits that evidence of injured

witness is taken as a gospel truth by the trial court. In fact

in law, while appreciating the evidence of injured witness,

unless the court is satisfied that evidence is truthful, no

reliance can be placed even on testimony of injured witness.

According to appellant, there is inordinate delay in

recording statements of material witnesses. Since delay has

not been satisfactorily explained, it raises a serious doubt

about credibility of the witnesses and also the prosecution

case. In this connection, learned counsel relied upon State

of U.P. .vs. Madan Mohan and others (AIR 1989 SC

1519) and the State of Maharashtra .vs. Shivaji

Shivram Tambe and another (1997 Bom CR (Cri) 897.

9] The third contention on behalf of appellant is that

medical evidence is in conflict with oral evidence and it

renders the prosecution case doubtful. Learned counsel

points out that in postmortem report, nine injuries have

been shown by PW-14 Dr. Ambade. Injury nos.2 and 4 are

stab wounds over chest and abdomen respectively, whereas

injury no.6 is incised wound over left chest. The rest of the

injuries are abrasions. It is submitted that, according to

prosecution, appellant gave two knives blows, one on chest

and another on abdomen. Prosecution witness did not

explain rest of the injuries.

10] Another contention regarding medical evidence is

that evidence of PW-14 Dr. Ambade would indicate that

injury no.4 mentioned in column no.17 of postmortem report

was sufficient to cause death. Accused had caused damage

to large intestine known as sigmoid colon which ultimately

resulted into death of the deceased. In cross-examination,

Dr. Ambade admitted that injury no.4 could not have caused

damage to sigmoid colon and the same was damaged due

to some other reason. In view of this conflicting version of

the medical officer and for non explanation of other injuries

found on the person of deceased Vitthal, submission is that

prosecution has suppressed the truth and could not prove

the guilt of accused beyond reasonable doubt. In support of

the submission regarding deficiencies in medical and oral

evidence, learned counsel placed strong reliance on State

of Madhya Pradesh .vs. Surbhan (AIR 1996 SC 3345)

and Ganpat Kisan Giri alias Nadiwala .vs. State of

Maharashtra (1995 (4) Bom CR 128).

11] It is then contended on behalf of appellant that

accused examined one witness in support of his defence.

Trial court totally ignored the evidence of defence witness,

though evidence of defence witness has to be treated in law

at par with the evidence of prosecution witness. Factum of

long enmity between appellant and prosecution witnesses is

also properly not considered by the trial court which was the

ground to wreak vengeance and falsely implicate the

accused. In sum and substance submission is that having

regard to the circumstances of the case, trial court ought to

have given benefit of doubt to appellant, particularly when

accused nos.2 against whom similar allegations of assault

appear in first information report was acquitted of the

charge.

12] Per contra, learned Additional Public Prosecutor

strongly supports the judgment and order of conviction and

sentence. She submits that so far as assault on abdomen

of Vitthal by means of knife is concerned, evidence is

consistent throughout. She submitted that first information

report only sets the criminal law into motion and during

investigation it was revealed that assault was by accused

no.1. Learned Additional Public Prosecutor further submitted

that enmity is double edged weapon and it is also possible

that accused to take revenge assaulted the deceased with a

sharp weapon with an intention to cause his death. It is

submitted that trial court has properly appreciated the

evidence of prosecution witnesses and as such no

interference is warranted in this appeal.

13] With the assistance of the learned counsel for the

parties, this court has carefully scrutinized the evidence of

prosecution witnesses and a defence witness. On

meticulous evaluation of evidence of complainant, injured

and taking into consideration the defence raised by the

accused, supported by the defence witness, this court, for

the below mentioned reasons, is of the opinion that

prosecution could not establish charge against accused

beyond reasonable doubt.

14] PW-1 Geeta Subhedar, PW-2 Ramaji Subhedar, PW-

3 Manohar Subhedar, PW-5 Indira Subhedar and PW-9

Sitabai Bhanarkar are the star witnesses for the prosecution.

PW-1 Geeta is sister-in-law of the deceased and she is the

complainant-first informant. She states that on 29.5.1997

at around 2.30 pm, accused Raju and Balya kept bicycle in

her door and she requested the accused to remove bicycle

as it was causing inconvenience to her. She states that on

that accused started abusing in filthy abuses in obscene

language. Evidence of Geeta shows that her brother-in-law

Vitthal came there to feed birds. He gave an understanding

to accused not to abuse Geeta. Then her brother-in-law

lifted the bicycle and kept by the side. All accused

threatened Vitthal that they would see him. Mother of

accused also gave them understanding not to do anything.

In her further evidence she deposed that at around

5.30 pm, Vitthal again came to feed birds. Accused were in

search of Vitthal. They were armed with weapons. Vitthal

asked accused why they were staring at him angrily. That

time accused Raja with leg caused Vitthal to fall down and

when Vitthal tried to stand, accused Raja and his father

caught hold Vitthal and Balya and present appellant ran

towards his house, Balya brought a knife from his house

and started assaulting Vitthal by means of knife at his

abdomen and stomach. She stated that, that time Ramaji

and she herself tried to intervene. Accused Balya deliver

knife blows on the hip of Ramaji. She stated that she also

received knife blow by Balya on finger of a right hand and

received injury. Accused then fled away from the spot. She

went to Lakadganj Police Station and lodged report. The said

report is at Exh.40.

In the cross-examination, Geeta admits that their

relations with the accused were strained since before 15

days of the incident. She also admits that before three

weeks, accused had constructed house. They also

constructed a latrine at the distance of 4 ft. from the house.

The dispute over construction is not seriously denied. So far

as the first phase of incident is concerned which occurred at

2.30 pm, admittedly no report was lodged by Geeta or

anyone else on her behalf. The report relates to the incident

which allegedly occurred at 5.30 pm.

15] The omissions elicited in the extensive cross-

examination of Geeta are (i) threats were given by Raja and

Balya, (ii) occurrence of incident at 2.30 pm, (iii) Vitthal

came initially and then his wife Indira came and (iv) Raja

with his leg caused Vitthal to fall down the victim, when he

tried to get up. In addition to these omissions, Geeta also

admitted in her cross examination that she stated before

police that accused Balya went to the house, brought a knife

and gave blows of knife to the victim. This fact does not

appear in first information report. She never stated to police

that accused Balya and Raja brought knife from the house

and both assaulted Vitthal. In fact, this fact find place in

first information report. The evidence of Geeta and first

information report Exh.40 clearly indicate that genesis of the

prosecution case, as reflected in first information report, is

denied by Geeta in her evidence and whatever is stated by

Geeta in her testimony is missing in first information report.

As rightly pointed out by the learned counsel for the

appellant, first information report being the first version of

the complainant due weightage is to be given to first

information report. If due weightage is given then

discrepancies between first information report Exh.40 and

the evidence of Geeta would be fatal to the prosecution case

as Geeta has changed the entire manner of incident in her

evidence. In this background, the evidence of Geeta cannot

be relied upon.

16] PW-2 Ramaji is another important witness. He is

an injured. He states that at 5.30 pm, Vitthal asked the

accused to remove bicycle which was kept by them. If

evidence of PW-1 Geeta is looked into, she stated that

incident of removal of bicycle took place at 2.30 pm and not

at 5.30 pm. It means, according to Geeta, in two parts

incident took place, first at 2.30 pm and second at 5.30 pm.

So far as Ramaji is concerned, he states that at 5.30 pm,

accused Balya came behind Raja and Gajanan and gave

knife blows to Vitthal. Ramaji intervened to rescue Vitthal

and that time Balya gave blows of knife on the chest of

Vitthal. As Ramaji tried to intervene, Raja delivered blow of

knife on him also. He introduces PW-3 Manohar as a witness

standing there. It is interesting to note that PW-3 is the

husband of complainant Geeta. She no where mentions that

her husband was standing there. Manohar is an eyewitness

according to the prosecution. In her entire testimony and

first information report, complainant is silent regarding

presence of Manohar.

17] It appears from the evidence of Ramaji that Geeta

prevented Manohar not to entangle with quarrel and save

him. This is conspicuously missing in the evidence of Geeta.

Ramaji admits that Gajanan had constructed a latrine in a

lane and there was a dispute between them and accused on

the same.

18] It is pertinent to note that initially this witness has

not supported the prosecution and prosecution sought

permission to cross-examine this witness. During cross-

examination by learned Additional Public Prosecutor, he

supported the prosecution, but his version is not consistent

and he has given entirely a different story than given by

PW-1 Geeta. Ramaji says that Gajanan gave a dash to

victim Vitthal, whereas PW-1 Geeta says Raja gave a dash to

victim Vitthal. He admits that he heard shouts of beating to

someone, therefore, he came out of the house and when he

came out of the house, he noticed Vitthal in injured

condition. This admission belies the evidence of Ramaji on

incident. It is further interesting to note from the cross-

examination of Ramaji that whatever family members have

stated, he informed the same to police. This makes it clear

that Ramaji is not a truthful witness. He is changing his

version from time to time. Not only this his evidence

appears to be hearsay, as at the instance of family

members, he gave information to police and on his own

admission, he did not witness the occurrence of incident, as

he came out of the house after hearing the shouts.

19] Prosecution also relied upon the evidence of PW-3

Manohar, husband of complainant Geeta. He stated that all

accused were sitting on the body of Vitthal. Gajanan and

Raja caught hold Vitthal and Balya was holding knife in his

hand. He then stated that Balya gave knife blow on the

chest of victim and also on abdomen. Thereafter, accused

left the victim and started assaulting Ramaji. He says that

accused attacked him and that time PW-1 Geeta intervened

and she gave a dash to Gajanan to save him. PW-1 Geeta is

silent and she does not state that Gajanan attacked on her

husband, she intervened and she gave a dash to save her

husband. It can be seen that Manohar made material

improvements in the course of evidence. His statement was

recorded on 31.7.1997 that is after two months of the

incident. The inordinate delay in recording statement is not

explained by the prosecution. Investigating Officer PSI

Bendre has not been examined. He conducted the

investigation in part. The reason for his non examination is

known only to the prosecution.

20] PW-5 Indira claims herself to be an eyewitness to

incident. She is wife of the deceased. She stated that on

29.5.1997 at 5.30 pm, her husband went to feed the

pigeons. When her husband was feeding pigeons, she was

cleaning utensils. She came out of the house for throwing

water and residuary food. She saw accused Gajanan and

Raja talking with her husband. The exchange of words took

place between them and accused Gajanan and Raja gave a

dash to her husband. She stated that her husband fell

down as he lost balance. Accused Raja and Gajanan again

caught hold her husband. Accused Balya went to his house,

brought knife and then gave blow of knife on the abdomen

and chest of her husband. Though in examination-in-chief,

she states that house of complainant is visible from her

house, in cross-examination she admits that house of PW-1

Geeta is not visible from her house. This creates doubt,

whether PW-5 Indira had actually seen the occurrence of

incident, as stated by her. Even if her testimony is taken

into consideration, it is not in consonance with the manner

of incident disclosed in first information report and,

therefore, her testimony is also not helpful to the

prosecution.

21] The next important witness is PW-9 Sitabai.

According to prosecution, she is an independent witness.

She is wife of PW-6 Ramesh Bhanarkar, a witness on seizure

panchanama. According to Sitabai, on the day of incident,

she had been to the house of Raju at 5.00 pm to keep her

articles. She was sitting at the house of Raju. She stated

that accused Balya with the help of knife gave blow on

abdomen of Vitthal. Remaining accused caught hold Vitthal.

She saw incident from 20 ft. and then left the place. Sitabai

no where states that knife blow was delivered by Balya on

the chest of Vitthal. She is also silent in her evidence

regarding assault on Ramaji and injuries received by Geeta.

The presence of this witness on the spot is not confirmed by

the injured Ramaji in his evidence. It appears from the

evidence of Sitabai that her statement was recorded on the

next day. Police papers would indicate that statement of

Sitabai was recorded on 18.6.1997 that is after 20 days.

Delay in recording statement of Sitabai is not explained by

Investigation Officer or by Sitabai. In view of unexplained

delay in recording statement of this witness, it would not be

safe to place reliance even on her testimony.

22] Prosecution placed reliance upon the evidence of

four Medical Officers. PW-7 Dr. Shafi Mohd. Khan, who

treated PW-1 Geeta, PW-12 Dr. Prakash Malsure, who

examined PW-2 Ramaji, PW-13 Dr. Bharat Deshraj, who also

examined injured Ramaji and PW-14 Dr. Vipul Ambade,

Medical Officer, who performed postmortem. It can be seen

from the evidence of Dr. Vipul Ambade that on 31.5.1997, he

was Medical Officer on duty at Mayo Hospital. He received

the dead body of Vitthal Sitaram Subhedar and conducted

postmortem between 1.40 and 2.40 pm. On external

examination, he found in all 11 ante-mortem injuries on the

person of the deceased. Injury nos.2 and 4 were stab

wounds on supraclavical region and abdomen respectively.

Injury no.6 is an incised wound. Rest of the injuries are

contusions and abrasions. It is the defence of the accused

that Vitthal was an aggressor. He tried to attack on the

accused and in scuffle, Vitthal received injuries of a knife

used by him to attack the accused. In view of the specific

defence raised by the accused, it was incumbent on the

prosecution to explain contusions and abrasions which were

found on the body of deceased at the time of postmortem.

Prosecution witnesses including eyewitnesses have not

explained rest of the injuries.

23] Another anomaly which can be noticed from the

medical evidence is brought in the evidence of PW-14 Dr.

Vipul Ambade. At one point of time, this Medical Officer

deposed that injury no.4 mentioned in column no.17 of the

postmortem report was sufficient to cause death, because

this injury had caused damage to large intestine known as

sigmoid colon which ultimately resulted into the death of

deceased. In cross-examination, Dr. Ambade admitted that

injury no.4 could not have caused any damaged to sigmoid

colon and the same was damage due to some other reason.

The admission elicited in the cross-examination of PW-14 Dr.

Ambade clearly indicates that even medical evidence is

doubtful and not above suspicion. So far as the evidence of

other medical officers is concerned, as testimonies of injured

do not inspire confidence, it would not be necessary to go

into their evidence.

24] Now remains the most crucial piece of evidence

and that is the dying declaration. Trial court has discarded

this piece of evidence and no reliance has been placed on it.

The reference to this dying declaration is necessary only

with a view to find out whether genesis of the prosecution

case which is mentioned in the dying declaration and which

is the last word of the deceased is identical to the manner of

incident disclosed in first information report and by the

witnesses in their ocular testimonies. A quick glance at the

evidence of Special Executive Magistrate PW-10 Ku. Asha

Bodhale would indicate that she recorded dying declaration

(Exh.63) as per the version of the deceased. In this dying

declaration, Vitthal had stated that father and sons rushed

on them. Both the brothers rushed on them with knives in

their hands and father possessed stones in his hand. Balya

gave a blow on his abdomen and Raju gave a blow on his

chest. Gajanan provoked them and beat him with stone and

fist blows. Again a changing version of Vitthal on the

genesis of the crime. It is not the case of prosecution that

Gajanan had a stone and he provoked accused nos.1 and 2

and beat with stone and fist blows. The story of assault

narrated in first information report is not supported by

complainant, injured and eyewitnesses. In this background

and considering the vital infirmities in the evidence, this

court is of the opinion that the conclusion drawn by the trial

court is contrary to the evidence on record. Hence,

conviction awarded to the appellant-accused deserves to be

set aside and accordingly the following order is passed :

ORDER

(i) Criminal Appeal No.256 of 2002 is allowed.

(ii) Impugned judgment and order of conviction and

sentence dated 10.5.2002 passed by the learned Additional

Sessions Judge, Nagpur in Sessions Trial No.110 of 1998 is

quashed and set aside.

(iii) Accused-Appellant is acquitted of the offence

punishable under Section 304-II of the Indian Penal Code.

(iv) His bail bonds shall stand cancelled forthwith.

(v) Fine, if paid, shall be refunded to the appellant.

(Kum. Indira Jain, J.) Gulande, PA