Suraj Shrikrushna Sonowane (In ... vs State Of Maharashta Thr. P.S.O. ...
2017 Latest Caselaw 10045 Bom

   Apeal 132.17                               1
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                          CRIMINAL APPEAL NO.132 OF 2017.


   APPELLANT:                   Suraj Shrikrushna Sonowane,
                                C-4862, detained in Central Prison,
                                Amravati, aged about 22 years, R/o
                                Bhatmarg, Tq.Babhulgaon, Distt.Yavatmal.

                                            : VERSUS :

   RESPONDENT:         The State of Maharashtra
                                     through Police Station Officer,
                                     P.S.Babhulgaon, Tq.Babhulgaon,
                                     Distt.Yavatmal.
                                  
   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.R.M.Daruwala,  Advocate (appointed) for the appellant.
   Mrs.S.V.Kolhe, Addl.Public Prosecutor for the respondent/State.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                    CORAM
                                                           :     P.N.DESHMUKH, J.

                                                     DATED:     22nd DECEMBER, 2017.

   ORAL JUDGMENT :

1. This appeal is filed against judgment and order dated 2 nd

April, 2016 passed by learned Sessions Judge, Yavatmal in Sessions

Trial No.82 of 2015, vide which appellant came to be convicted for

the offence punishable under Section 304(I) of the Indian Penal

Code and is sentenced to suffer rigorous imprisonment for ten

years and to pay fine of Rs.1000/-, in default to suffer S.I. for one

month. Appellant is acquitted of the offence punishable under

Section 201 of the Indian Penal Code.

2. Briefly, case of prosecution can be stated as under :-

On 22nd June, 2013, PW 1 Kalim Gulab Shah, brother of

deceased Jarbin Gulab Shah, lodged report, Exh.42, contending

that on that day at 10 a.m. deceased was going towards bus stop of

village Dighi on the motorcycle of one Shrikrishna Marbate when

appellant met and quarrel took place between them on transaction

of sale of cotton, during the course of which deceased had given

2 - 3 slaps to appellant. It is further case of prosecution that

deceased thereafter along with PW 5 Raju Ramuji Sidam while was

proceeding on the motorcycle, appellant met and on intercepting

them threw chilly powder on their person due to which Raju Sidam

left the company of deceased, who after alighting from the

motorcycle while was cleaning chilly powder from his face was

given a kick blow by appellant due to which he fell down on the

ground and was thereafter assaulted on his head by appellant by

means of big stone causing his death.

3. PW 1 Kalim Shah, Complainant therefore lodged his

report which was received by PW 10 ASI, Ananda Bhagat at 8 p.m.

and on the basis of same report offence vide Crime No.95 of 2013

was registered, which was further investigated by one P.I.,

Bawiskar (not examined) and thereafter by PW 11 Sugat Nathrao

Pundge, PSI who had recorded statement of witnesses on 7th

October, 2013, 8th October, 2013, 10th October, 2013 and 24th

October, 2013. Further investigation was carried out by PW 12

Chandrashekhar Panjabrao Kadu, API who during the course of

investigation, apprehended appellant from Ahemadabad and after

bringing at Babhulgaon Police Station, on 18 th April, 2014 effected

his arrest under arrest panchanama Exh.17 and sent appellant to

Medical Officer for collecting his blood sample which was seized

under seizure panchanama, Exh.19. On 20th April, 2015, he

recorded statements of PW 6 Kaushal Dhonduji Bawane, PW 9

Kamala Pandit Munjewar, PW 13 Mangesh Rajendra Chaudhari

and on 6th May, 2015 recorded statements of PW 7 Pandit

Balkrushna Munjewar and also got recorded statements of PW

Mangesh Chaudhari, PW 4 Naresh Udhaorao Raut and PW Kamala

Munjewar under Section 164 of the Code of Criminal Procedure

and on completion of investigation filed charge-sheet before the

Court of Judicial Magistrate (F.C.), Babhulgaon. In the course of

time, case was committed to the Court of Sessions for trial.

4. Charge, Exh.3 was framed against the appellant for the

offence punishable under Sections 302, 201 of the Indian Penal

Code to which he denied and claimed to be tried. The defence of

appellant is of total denial and false implication.

It is his case that at the time of incident, on some

transaction he was to receive some amount from deceased and for

that reason alone he is falsely implicated in this case. Appellant,

however, has not examined any witness in support of his case.

5. To establish the Charge framed, prosecution in all

examined fourteen witnesses and commenced its evidence on

examining PW 1 Kalim Gulab Shah, brother of the deceased who

lodged report, Exh.42, PW 2 Jagdish Sureshrao Wadafale, spot

panch who has established spot panchanama, Exh.48 and seizure

panchanama of stone, Exh.49, PW 3 Ganesh Ganpat Bagade on the

incident of earlier assault by appellant on deceased, PW 4 Naresh

Uddaorao Raut, PW 5 Raju Ramuji Sidam on the case of

prosecution of appellant throwing chilly powder on deceased prior

to assault, PW 6 Kaushal Dhonduji Bawane, the grocery shop

owner, PW 7 Pandit Balkrushna Munjewar and PW 9 Kamala

Pandit Munjewar, PW 8 Yogesh Shrawan Ablankar, owner of pan

shop, PW 10 ASI Ananda Chandrabhan Bhagat, PW 11 Sugat

Nathrao Pundge, PSI, PW 12 Chandrashekhar Panjabrao Kadu all

Investigating Officers, PW 13 Mangesh Rajendra Chaudhari

another pan shop owner and concluded its evidence on examining

PW 14 Dr.Trishul Onkarrao Padole who has proved Post mortem

report, Exh.43.

6. The learned trial judge on considering evidence of above

witnesses and proved documents on record, convicted appellant for

the offence punishable under Section 304(I) of the Indian Penal

Code and has acquitted him of the offence punishable under

Section 201 of the Indian Penal Code. Hence, this appeal.

7. Heard Shri R.M.Daruwal, learned counsel for the

appellant and Smt.S.V.Kolhe, learned Additional Public Prosecutor

for the State.

8. It is submitted on behalf of appellant that though

prosecution has examined witnesses claiming to be eye witnesses

to the incident, their evidence is not convincing at all as their

evidence his full of improvements, contradictions and omissions

and is therefore not worthy to be relied upon to base conviction. It

is further pointed out as to statements of all these witnesses relied

by prosecution are recorded after many days of the incident

without any satisfactory explanation on that point and has thus,

contended that when the evidence is disbelieved, there is no other

alternative than to allow the appeal and has thus, prayed that the

appeal be allowed.

In support of his submissions, learned Counsel for the

appellant has relied upon in the case of Harbeer Singh ..vs..

Sheeshpal and ors. reported in AIR 2016 SC 4958.

9. Learned Additional Public Prosecutor, on the other hand,

has supported the impugned judgment and has contended that the

learned trial Judge has rightly evaluated the evidence on record

and convicted the appellant. It is therefore contended that appeal

be dismissed having no merit.

10. With the assistance of learned counsel of both sides,

evidence on record is evaluated. From the evidence of PW 14

Dr.Trishul Padole, it has come on record that on 23 rd June, 2013

while he was working as Medical officer, he had performed post

mortem on the dead body of deceased Jarbind Shah and had noted

following external injuries.

1. Abrasion over left frontal region of size 2.5 x 1 cm. irregular and reddish.

2. Abrasion over left cheek of size 4 x 3 cm.

irregular and reddish.

3. Abrasion over left temporal region, of size 2 x 1 cm. irregular and reddish.

4. Lacerated wound over right high parietal

region vertically placed of size 3 x 0.5 cm. into bone deep. Lower end of wound is 10 cm.

above from tip of right mastoid.

5. Abrasion over nape of neck, of size 1 x 1 cm.

irregular and reddish.

6. Abrasion over right forearm, lower one third on lateral aspect of size 2 x 0.5 cm. irregular and reddish.

Following internal injury were noted which were stated

to be ante mortem

1. Under-scalp contusion over right parietal region of size 7 x 4 cms. reddish and haemorrhage under both temporalis muscles.

2. Fracture of skull. Undisplaced liner fracture of anterior cranial fossa at left lesser wing of sphenoid of length 3 cm., horizontally placed, fracture margins were irregular and blood infiltrated.

3. Undisplaced linear fracture radiating from right temporal to occipital region of length 9 cm.

obliquely placed and corresponding to injury No.4 mentioned in column NO.17. Fracture

margins were irregular and blood infiltrated.

4. Brain - subdural haemorrhage was present over right cerebral lobe, thick layer, reddish in colour.

5. Subarchnoid haemorrhage over both cerebral lobe and cerebellum, thick film of blood reddish in colour. Rest of brain matter was pale and oedematous.

6. 100 ml. of blood was present in the stomach.

11. According to the Medical Officer, injuries sustained by

deceased were sufficient in the ordinary course of nature to cause

death and has opined that the death of deceased is an outcome of

head injuries sustained by him and issued postmortem report

Exh.83.

Further evidence of Medical Officer reveals that on 19th

July, 2013 one big stone was referred to him with query vide letter,

Exh.25 to opine whether the injuries sustained by deceased were

possible by stone referred to him and in his reply Medical Officer

has opined that the injuries sustained by deceased were possible by

stone which was identified by him as Article 'A'. The Medical

Officer has specifically denied that the injuries sustained by

deceased are not possible by stone and has further stated that the

injuries are even possible by single blow of stone or multiple blows.

12. Having considered evidence as aforesaid, homicidal

death of deceased Jarbin Gulab Shah has been established by

prosecution beyond reasonable doubt. However, it is to be further

ascertained whether whether appellant has caused death of

deceased by assaulting by stone as is the case of prosecution. To

satisfy on this count, evidence of PW 1 Kalim Gulab Shah, brother

of the deceased and complainant reveals that on 22nd June, 2013,

he returned back to his house after 5 p.m. and thereafter went to

village Dighi for reaching labours at their house in his vehicle

where he was informed by some boys that they had witnessed

quarrel between deceased and the appellant. Therefore,

complainant went to the house of PW 7 Pandit who used to sell

liquor and found quarrel was in progress between appellant and

deceased and as such intervened the same and requested deceased

to accompany him back to home to which he replied that he would

come later. He has further stated that at that time PW 3 Ganesh

Atram and One Purushottam Marbate (not examined) were present

with the deceased and he returned back home.

13. Considering above evidence of complainant, he does not

appear to be witness to the incident of assault but according to his

evidence he is witness of quarrel which he claims to have seen

between deceased and appellant on the day of incident after 5 p.m.

He has further deposed that after having tea in his house he visited

pan shop where he met one Salim who received telephonic

information that deceased was lying in dead condition at Chondi

bus stop and therefore accompanied him to the spot and found his

brother lying dead at the bus stop and further deposed that at that

time PW 3 Ganesh was present and was weeping who informed

complainant that appellant has killed deceased by assaulting with

stone. In the meantime, police arrived on the spot and took dead

body to the hospital and he claims to have returned back to his

house along with Salim.

14. Complainant further deposed that after he reached home

PW 3 Ganesh visited his house weeping and informed that earlier

on that day deceased along with Purushottam Marbate and

Gajanan Atram had gone to Amravati on motorcycle and returned

back after 3.30 p.m. and all of them thereafter went to the house of

liquor seller where quarrel took place between deceased and the

appellant where deceased gave slaps to appellant due to which

appellant extended threats to deceased to kill him on that day by

evening. Complainant further deposited that PW 3 Ganesh also

informed him that thereafter deceased went towards bus stop with

one Gajanan Artam and that appellant at that time threw chilly

powder on deceased due to which he fell down and went to the

nearby hand pump to clean his face. The hand pump is stated to

be at the distance of 10 to 15 ft. from the house of liquor seller and

stated that according to the further information given by PW

Ganesh after deceased returned from urination, appellant threw

big stone on his head, causing his death and on getting knowledge

as aforesaid, he went to Babhulgaon Police Station and lodged

written report, Exh.42 on record scribed by his cousin Mansoor.

15. From this portion of evidence of complainant it is,

therefore, found that all material information deposed by him with

regard to death of deceased is received by him from PW 3 Ganesh.

Admittedly, PW 1 Kalim, complainant thus, is not an witness to the

incident of assault on deceased by appellant.

16. In that view of the matter, on perusal of evidence of PW

3 Ganesh Bagade it reveals that on the day of incident after 4.30

p.m. he along with deceased visited house of PW 7 Pandit, the

liquor seller, for consuming liquor where appellant arrived and that

though there was no quarrel between deceased and appellant,

deceased gave 2 - 3 slaps to appellant and thus appellant extended

fatal threats to deceased. He has further deposed that he had

consumed more liquor therefore he went back to his home and

while he was taking his meal, the complainant Kalim came to his

house and claims to have informed him that somebody had killed

Jarbin. In that view of the matter, it is specific evidence of PW 3

Ganesh that he had received information of assault on deceased by

someone from complainant Kalim and in total contrast of this

evidence, it is deposed by PW 1 complainant that it is PW 3 Ganesh

who had given him various details of events which took place on

the day of incident after 5 p.m. till PW 3 Ganesh had witnessed

appellant causing death of deceased by assaulting him by stone in

his presence near bus stop at Chondi. Evidence of PW 3 Ganesh,

therefore, dislodged the entire evidence of complainant as

aforesaid.

17. On considering further evidence of complainant, he

claims to have received information of assault on deceased also

from PW 4 Naresh Raut when he deposed that Naresh had also

witnessed the incident. In view of this specific evidence, on

perusal of evidence of PW 4 Naresh it reveals that same is

corroborated with the evidence of complainant when PW 4 Naresh

has deposed that at the time of quarrel at Chondi bus stop

appellant committed assault by stone on the head of deceased and

ran away from the spot due to which he sustained bleeding injury

to his head and succumbed to it. PW Naresh claims to have

witnessed the incident from the distance of 15 to 20 ft. while he

was sitting in his vehicle, however, evidence of PW 4 Naresh

appears to have material omissions when PW 11 PSI Pundge has

admitted that said witness has not stated in his statement recorded

by Police that he had witnessed quarrel between deceased and

appellant on the day of incident. Though from his evidence it

appears that the omission is only in respect to PW Naresh not

witnessing quarrel between appellant and deceased, evidence of

PW Naresh does not inspire confidence when he has deposed that

he has witnessed appellant assaulting deceased by means of stone

as it is his case that appellant in the course of same quarrel had

committed assault by stone on the deceased. It is not the case that

quarrel took place between deceased and appellant and after

sometime appellant committed assault on deceased and both these

incidents are one after another as can be seen from the evidence of

PW Naresh.

In view of above fact if PW Naresh does not find to have

witnessed the quarrel, it is difficult to rely upon his evidence to

hold that he has witnessed assault by stone on deceased at the

hands of appellant. Similarly, he has even admitted that at the

spot of incident at Chondi he had only witnessed quarrel going on

in between appellant and deceased. Even otherwise his statement

is recorded many days after the incident which took place on 22nd

June, 2013 while his statement is recorded on 10th October, 2013

though according to the prosecution case he is an eye witness to

the incident. No explanation is put forth for delay in recording

statement of material witness. In the circumstances, there appears

much substance when it is suggested to PW Naresh that he is

deposing false and has not witnessed the incident of assault on

deceased by appellant.

18. Coming back to the evidence of complainant as well as

PW 3 Ganesh, as already mentioned aforesaid evidence of these

two witnesses are contrary to each other on material facts. PW1's

evidence also finds with full of material omissions even on the

point of PW 4 Naresh witnessing incident as stated by him, as in

his cross-examination he has admitted to have not stated in his

statement recorded by police that PW Naresh Raut has seen the

incident and is unable to assign any reason why he has not stated

so in his statement recorded police. He has further admitted to

have not stated before police that on reaching to village Dighi some

boys informed him that quarrel had taken place between deceased

and appellant and therefore he went to house of PW 7 Pandit

Munjewar. He has further admitted to have not stated before

police that when deceased proceeded on motorcycle to Chondi, one

Gajanan Atram was with him and that PW 3 Ganesh had informed

him that he had witnessed the incident of assault on deceased.

The evidence of PW 1 as aforesaid, therefore, requires to be kept

out of consideration being not convincing at all, having full of

omissions.

19. Similarly, on considering cross-examination of PW 3

Ganesh whose evidence even otherwise is not sufficient to be acted

upon, being totally contrary to evidence of complainant, same also

appears to be full of omissions when he has admitted to have not

stated in his statement recorded by police that appellant had given

fatal threats to deceased for which he is unable to state any reason.

20. Another witness whose evidence needs consideration is

PW 5 Raju Sidam, who has deposed that on the day of incident on

22nd June, 2013 at 5.30 p.m. he met deceased with whom he

accompanied on his motorcycle to visit pan shop, however, on the

way since chilly powder had gone into his eyes, they stopped their

vehicle and he went to obtain water from the house of one Dighade

to wash his eyes and in the meantime deceased had left from that

spot on motorcycle and thereafter he returned back to his home.

Evidence of PW Raju thus only establishes somebody throwing

chilly powder on deceased while he was proceeding with this

witness on motorcycle and nothing more. His evidence even

otherwise is not convincing to accept that chilly powder was

thrown upon them as in his cross-examination he has admitted that

substance which had gone into his eyes might be chilly powder he

states it to be chilly powder by imagination. There is no

investigation on this aspect.

21. With reference to above evidence, evidence of PW 6

Khushal when perused though reveals that on the day of incident

appellant had purchased chilly powder from his grocery shop, this

material piece of evidence is an omission which goes to the root of

the case when PW Khushal admits to have not stated in his

statement recorded by police, that on the day of incident appellant

had purchased chilly powder from his shop and is unable to assign

any reason why it is not so stated by him in his statement. In view

of his evidence as aforesaid having material improvements coupled

with evidence of PW 5 Raju, there is absolutely no convincing

evidence to establish that prior to assault appellant had extended

fatal threats to deceased or that there was a quarrel between them

or that appellant had thrown chilly powder upon deceased.

22. Prosecution thereafter has heavily relied on evidence of

PW 7 Pandit Munjewar and his wife PW 9 Kamala Munjewar, both

indulged in selling liquor from their house, on the point of quarrel

between deceased and appellant prior to incident whose evidence

is similar on the aspect of quarrel when it is deposed by them that

on 22nd June, 2013 after 5.00 p.m. deceased had visited their house

along with PW 3 Ganesh and one Babu Marbate when appellant

was present outside of their house and after some time quarrel

took place between deceased and appellant wherein deceased gave

one slap to appellant due to which he got annoyed and went to

nearby shop of PW 6 Khushal for purchasing chilly powder and had

attempted to throw the same upon deceased, however, due to

intervention of PW 7 Pandit he could not do the same. He further

deposed that thereafter at 7.30 he learnt about death of deceased

near bus stop at Dighi. According to evidence of PW 7 Pandit,

deceased had visited his house along with PW 3 Ganesh and one

Babu Marbate. He has further deposed that after consuming liquor

PW 3 Ganesh and Babu left his house and thereafter has deposed

about quarrel and, appellant's attempt to throw chilly powder on

deceased. However, contrary to above evidence, in his cross-

examination PW 7 Pandit admits that at the time of throwing chilly

powder PW 3 Ganesh as well as Babu Marbate were present. He

further admits that at the time of recording his statement by police

he had stated that deceased had given slaps to appellant and also

that appellant after purchasing packet of chilly powder from the

shop of Khushal, opened it, however, he cannot assign any reason

why same is not mentioned in his statement by police. Above

omissions have been duly proved by PW 12 Chandrashekhar, API,

who has recorded his statement when he has deposed that PW 7

had not stated in his statement as aforesaid.

23. Having considered and discussed evidence of witnesses

as aforesaid, judicial note of fact is to be taken that when an

incident is narrated by same person to different persons on

different occasions, some differences in the mode of narrating the

incident are bound to arise. However, such differences do not

militate against the truthfulness of the narration unless the

variations can be held to be so abnormal or unnatural as it would

not occur if the witness would have really witnessed what he was

narrating. From the evidence of PW 1 Kalim, complainant, PW 3

Ganesh, PW 4 Naresh Raut and PW 7 Pandit who claim to have

witnessed either incident of quarrel which according to prosecution

took place prior to assault or claim to have witnessed incident of

assault, however, do not inspire confidence at all, as same are full

of contradictions and omissions which by no stretch of imagination

can be said to be minor and as such, not material. It is settled that

the minor discrepancies, omissions made by witnesses in their

testimony and variations in earlier and later statements do not by

itself make their testimony infirm, nor when the witnesses make

improvements connected to irrelevant facts concerning relevant

details, same cannot be labelled as omissions and contradictions

but nature of evidence in the appeal in hand as discussed aforesaid

is found to be a classic example of an attempt to falsely implicate

accused, more particularly when none of the witnesses examined

by the prosecution claiming to be the eyewitnesses to the incident

are found to be reliable.

24. Similarly, another significant aspect in the appeal which

requires consideration is of delay in recording statements of all the

material witnesses though according to prosecution they are

eyewitnesses to the incident as statement of PW 1 Kalim is

recorded after four months of the incident while according to

evidence of PW 12 Chandrashekhar, Investigating Officer, he has

recorded statements of PW 8 Yogesh Shrawan Ablankar, 9 Kamala

Pandit Munjewar and 13 Mangesh Rajendra Chaudhari on 20 th

April, 2015 and of PW 7 Pandit Balkrushna Munjewar on 6 th May,

2015 while the incident is of 22nd June, 2013 i.e. almost after two

years from the date of incident for which no explanatory is on

record.

25. In a case of Harbeer Singh..vs.. Sheeshpal and ors., cited

supra, evidence of witnesses whose statements were recorded after

15 - 16 days from the date of incident was not relied upon

observing that it would cast doubt upon the prosecution.

26. In the backdrop of above facts and particularly the

omissions amounting to contradictions coupled with the delayed

statements, recorded during the course of investigation, the case of

prosecution is full of doubts, as it is a settled law that delay in

recording statement of witnesses does not necessarily discredit

their testimonies and Court may rely on such testimony if they are

cogent and credible and the delay is explained to the satisfaction of

the Court. However, in the appeal in hand, the evidence of

witnesses as discussed above is not at all creditworthy nor huge

delay caused in recording statements of material witnesses is

explained in any manner. Prosecution is thus, held to have failed

to establish its case beyond all reasonable doubts. The appeal is

therefore liable to be allowed as per following order.

-ORDER-

The appeal is allowed.

The judgment and order passed by learned Sessions

Judge, Yavatmal in Sessions Case No.82 of 2015 convicting the

appellant for the offence punishable under Section 304(I) of the

Indian Penal Code and sentencing him to suffer rigorous

imprisonment for ten years and to pay a fine of Rs.1000/-, in

default to suffer S.I. for one month, is hereby quashed and set

aside.

The appellant be released forthwith if not required in

any other crime.

Fee payable to the learned Counsel appointed for the

appellant is quantified to Rs.5000/- only.

JUDGE

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