Bombay High Court
Jaipal Bhimrao Meshram & Another vs State Of Mah.Thr.P.S.Adyal on 21 August, 2017
Bench: R. B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.37 OF 2002
1 Jaipal S/o. Bhimrao Meshram,
aged about 22 years,
R/o. Tirri,
Tah. Pauni, Dist. Bhandara
2 Subhash S/o. Maroti Safekar,
aged about 30 years,
R/o. Tirri,
Tah. Pauni, Dist. Bhandara ....... APPELLANTS
...V E R S U S...
The State of Maharashtra
Police Station Adyal
District. Bhandara ....... RESPONDENT
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Mr. A.R. Kaplay holding for Shri. A.M. Quazi, Counsel for
Appellants.
Mrs. Mayuri Deshmukh, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
21 AUGUST, 2017.
ORAL JUDGMENT
1 The appellants seek to assail judgment and order
dated 7.1.2002 in Session Trial 94 of 1998 delivered by the 2 nd
Adhoc Additional Sessions Judge, Bhandara by and under which
the appellants are convicted for offence punishable under section
307 of the Indian Penal Code and sentenced to rigorous
imprisonment for three years and are additionally directed to pay
fine of Rs. 3,000/-.
2 The case of the prosecution as has unfolded during
the course of trial is thus:
Disha, the daughter of Namdeo Rangari (PW1) was studying
in the 9th standard, in Prakash School, at village Adyal and was
residing at Parvatabai hostel. Jaipal, accused 1 allegedly
attempted to send a message to Disha through the daughter of one
Akre to come and meet him. The prosecution case is blurred on
the aspect of the genesis of the incident. However, what can be
culled out is that the alleged misconduct of Jaipal was conveyed
by Disha to her father Namdeo and brother Manoj Rangari. It is
the case of the prosecution that on 22.3.2008 Manoj confronted
Jaipal and asked him as to why he had contacted Disha.
According to the prosecution, there was an exchange of words
between Manoj and Jaipal and one Nashik Humne intervened and
pacified both Jaipal and Manoj, who then went to their respective
homes.
3 The case of the prosecution further is that on the said
day i.e. on 22.3.1998, at 7.00 pm, accused 2 Bhimrao started
abusing the family of Disha in filthy language. Manoj Ranjari
confronted Bhimrao and asked him as to why he was abusing his
family. A quarrel ensued between Bhimrao - accused 2 and Manoj
Rangari. It is alleged that accused - 1 Jaipal arrived at the spot
and assaulted Manoj Rangari with the blade of scissor while
Subhash / the accused 3 held his hair. Accused - 2 Bhimrao
allegedly assaulted Manoj with a stick. Manoj Rangari sustained
bleeding injury on the right and left side of the abdomen and
collapsed on the spot. One Rajkapoor Humne and Vijay Gajbhiye
arrived on the spot and took injured Manoj to the bus stop. PW 1
Namdeo Rangari went to Adyal Police Station and lodged oral
report exh. 17 on the basis of which the printed first information
report exh. 18 was drawn. Manoj Rangari was medically
examined, his dying declaration was recorded, alongwith
appellant Jaipal Bhimrao Meshram, the father of Manoj was also
arrested. At the instance of Bhimrao, the scissor allegedly used as
a weapon of assault was recovered from the house of Bhimrao and
further investigations were undertaken. The completion of
investigations culminated in the police presenting charge-sheet in
the Court of Judicial Magistrate First Class, Pauni who committed
the case to the Sessions Court.
4 The learned Sessions Judge framed charge at exh. 10
under section 307 read with section 34 of the Indian Penal Code.
The accused pleaded not guilty and claimed to be tried. The
prosecution examined 11 witnesses. The defence of the accused,
as is seen from the statement recorded under section 313 of
Criminal Procedure Code is of total denial and false implication.
The learned Sessions Court was pleased to convict accused 1
Jaipal and accused 3 Subhash for offence punishable under section
307 of the Indian Penal Code. Accused 2 Bhimrao is, however,
acquitted.
5 Heard Shri. A.R. Kaplay, learned counsel for the
appellant and Smt. Mayuri Deshmukh, learned Additional Public
Prosecutor for the respondent. Shri. Kaplay, learned counsel for
appellant would urge that judgment and order impugned suffers
from glaring errors and fails to consider that the evidence on
record was grossly inadequate to bring home charge under section
307 of the Indian Penal Code. Shri Kaplay invites my attention to
the oral report lodged by PW 1 Namdeo Rangari and the printed
first information report (exh. 17 & exh. 18 respectively) on
22.3.1998. The oral report and the first information report (exh.
17 & exh. 18) make an interesting reading. There is not even a
whisper in the first information report that either accused 1 Jaipal
or accused 3 Subhash stabbed Manoj. On the contrary, role of
inflicting stab injury is attributed to accused no 2 Bhimrao who is
acquitted by the learned Sessions Judge. He would further invite
my attention to the cross examination of PW 1 Namdeo in which
Namdeo admits that when the incident took place, he was tying
bullocks and when he went to the spot, the injured Manoj was
lying on the ground. The learned counsel would urge, and in my
opinion rightly, that either the first information report is a piece of
deliberate and malicious falsehood or Namdeo Rangari is clearly
not a witness to the incident. The learned counsel would contend
that the evidence of PW1 Namdeo does not take the case of the
prosecution any further. Shri. Kaplay, the learned counsel then
contends that two independent witnesses touted as eye-witnesses
PW 2 Vijay and PW 3 Rajkakpoor Humane were declared hostile
and cross-examined by the prosecution to no avail. The cross-
examination of PW 2 and PW3 has failed to bring on record any
material supporting the prosecution. PW 4 Usha, according to the
learned counsel for the accused, is not, on her own admission, a
witness to the incident of assault. PW 4 Usha admits that it was
dark and that she did not venture out of the house when the
alleged incident of assault on Manoj occurred. Manoj, who is the
injured victim, is examined as PW5. His testimony is subjected to
scathing criticism by the learned counsel for the accused. I would
advert to the testimony of PW 5 Manoj at a later stage in the
judgment since he is the only person who is in a position to depose
as to what exactly happened on the date of incident. PW1
Namdeo Rangari who is the father of Manoj and PW 4 Usha who is
the sister of Manoj are not eye-witnesses to the alleged assault on
Manoj. Two independent witnesses who were examined as eye-
witnesses PW 2 Vijay and PW3 Rajkapoor have turned hostile and
there is nothing in their cross-examination which may assist the
case of the prosecution. Before I appreciate ocular evidence of PW
5 Manoj, it would be apposite to note a few striking features of the
prosecution case.
6 The investigation officer is examined as PW 10. The
investigation officer states that vide exh. 34 dated 23.3.1998, he
requested the Magistrate to record the dying declaration of Manoj
and vide exh. 35 dated 28.3.1998 renewed the request. PW 5
Manoj states in his examination in chief that his dying declaration
was recorded by the Tahsildar. Interestingly, the dying declaration
which is allegedly recorded is not placed before the Court. Neither
the testimony of PW 5 nor that of the Investigation Officer throws
any light on the circumstances in which and the reasons why the
dying declaration, if any, was suppressed during the trial. The
alleged weapon of assault is a scissor blade admeasuring 6 inches
with handle of 3 inches. The recovery is allegedly from the house
of accused 2 Bhimrao and pursuant to memorandum under section
27 of the Indian Evidence Act (exh. 28). Both the panchas to exh.
28 memorandum and exh. 29 seizure panchanama have not
supported the prosecution and were declared hostile. Be that as it
may, even if it is assumed that the said recovery is of any
significance, the scissor seized was sent to the medical officer to
opine as to whether the injury suffered by Manoj could have been
caused by the scissor. The answer of the medical officer as is
evident from exh. 37 is that the injury could not have been caused
by the scissor seized. Exh. 46 Chemical Analysis Report dated
10.6.1998 would further reveal that no human blood was found
on the seized weapon. It is axiomatic from the consideration of
ocular and documentary evidence on record, that the case of
prosecution is based on the sole testimony of PW5 Manoj. The
prosecution story is not corroborated either by independent
witnesses nor by the medical evidence nor by the report of
Chemical Analyzer nor by the first information report. It would be
necessary for me now to consider the testimony of Manoj in order
to satisfy the conscious of the Court that the guilt of the
appellant/accused 1 and 3 is established beyond reasonable doubt.
7 This Court is alive to the settled position of law that
the testimony of an injured witness stands on a higher pedestal as
compared with other witnesses. The fact that the witness is
injured in the incident, lends assurance to his presence on the
spot. In normal circumstances, an injured person is not likely to
falsely implicate a person and absolve the guilty. However, it is
not an inflexible or immutable rule of evidence that the testimony
of the injured witness must be relied upon notwithstanding that
the testimony is absolutely uncorroborated and is not otherwise
found to be trustworthy.
8 I am not inclined to accept the testimony of PW 5 as reliable
and confidence inspiring. Firstly, the prosecution version is totally
inconsistent with the first information report. The first information
report alleges that Manoj Rangari was stabbed by accused 2
Bhimrao. Bhimrao is acquitted. During trial it is alleged that
accused 3 Subhash held Manoj by hair and accused 1 Jaipal
inflicted stab wound with Scissor blade. No human blood is
noticed by the Chemical Analyzer on the Scissor blade seized from
the house of the accused 2 Bhimrao and at his instance. The
medical officer has opined that the injury suffered by Manoj could
not have been inflicted by the scissor blade. There is absolutely
nothing on record for this Court to find out as to when Manoj was
admitted in the hospital, what was the treatment given and when
was he discharged. PW 11 - Medical Officer who was examined to
prove the injury certificate fairly admits that he has no idea when
the injured witness was admitted, what was the treatment given to
the injured and when Manoj the injured witness was discharged.
The injury certificate exh. 59 is pathetically lacking in particulars.
Certificate does not reveal whether the injury is simple or
grievous, whether the injury is sufficient in ordinary course to
cause death, the precise nature of the injury and whether the
injury could have been caused by any particular type of weapon.
The injury certificate exh. 59 needs consideration only for
rejection. I am convinced that PW5 Manoj is not a truthful
witness. I am further convinced that the investigation is not only
incompetently conducted, the investigation, is absolutely unfair.
The dying declaration, which PW 5 asserts is recorded, is
suppressed. The investigation officer admits to have made a
request not once but twice to the Tahsildar / Magistrate that the
dying declaration be recorded. The fact that the dying declaration
is not produced leaves this Court with only one option and that is
to draw an adverse inference against the prosecution.
9 The evidence on record is grossly insufficient to
deprive the appellants / accused 1 and 3 of their liberty. I am
unable to agree with the contention of the learned APP that the
sole testimony of the injured witness has been rightly considered
and relied upon by the learned Sessions Judge and that the
judgment impugned is unexceptional. Despite the painstaking
efforts of the learned APP to support the judgment impugned, I am
not persuaded to hold that the prosecution has proved the charge
under section 307 of the Indian Penal Code beyond reasonable
doubt.
The appeal is allowed.
The judgment and order impugned dated 7.1.2002 passed
by the 2nd Adhoc Additional Sessions Judge, Bhandara, in Session
Trial 94 of 1998 delivered is set aside.
The accused are acquitted of the offence punishable under
Section 307 of the Indian Penal Code.
Bail bonds of the accused are stand discharged.
Fine paid, if any, paid by the accused be refunded to them.
Appeal is disposed of accordingly.
JUDGE
Belkhede, PA
