Datta Debaji Ingle (Abated) And ... vs The Stae Of Mah.Thr.Pso Yavatmal
2017 Latest Caselaw 7783 Bom

                                        1                                          apeal647.04




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 647 OF 2004


 1) Datta s/o Debaji Ingle,                 - (Abated) 
     Aged about 38 years, 

 2) Bhiva s/o Debji Ingle,
     Aged about 43 years, 

 3) Jairam s/o Debaji Ingle,
     Aged about 46 years, 

 4) Bharat s/o Narayan Uchade,
     Aged about 38 years, 

     All R/o Shirpur, Police Station
     Mahagaon, District Yavatmal.                                  ....       APPELLANTS

                     VERSUS

 The State of Maharashtra, 
 through P.S.O., Mahagaon, 
 District Yavatmal.                                                ....       RESPONDENT

 ______________________________________________________________

            Shri K.S. Narwade, Advocate for the appellant, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM   :  ROHIT B. DEO, J.

                             DATED    :    4
                                                OCTOBER, 2017
                                             th



 ORAL JUDGMENT : 

The appellants seek to assail the judgment and order

dated 21-9-2004 in Sessions Trial 98/1996, delivered by the learned

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Additional Sessions Judge, Pusad, by and under which the appellants

stand convicted of offence punishable under Section 304 Part-II of the

Indian Penal Code and sentenced to suffer rigorous imprisonment for

three years and to payment of a fine of Rs.500/-.

2. Heard Shri K.S. Narwade, learned Advocate for the

appellants and Shri N.B. Jawade, learned Additional Public Prosecutor

for the respondent.

3. Shri K.S. Narwade, learned Advocate appearing on behalf

of the appellants (hereinafter referred to as the "accused") submits that

the entire case of the prosecution is based on the testimony of P.W.8

Charan-the brother of the deceased. Concededly, other witnesses who

is examined as eye witnesses have turned hostile. Nothing is elicited in

the cross-examination of the witnesses who have not supported the

prosecution, is the submission. Concededly, there is no corroborative

evidence available on record, is the submission. Shri K.S. Narwade,

learned Advocate for the accused would submit that the testimony of

P.W.8 Charan is unreliable and the cross-examination of the said

witness reveals that his very presence on the spot is extremely

doubtful. P.W.8. Charan is not a witness to the alleged assault on his

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own admission, is the submission. The learned Advocate for the

accused would submit that to base the conviction on the testimony of

P.W.8 Charan, who is related and interested witness, would be most

unsafe and hazardous, particularly since every other witness has

turned hostile.

4. In rebuttal, Shri N.B. Jawade, learned Additional Public

Prosecutor for the respondent would submit that a related witness is

not necessarily an interested witness. The presence of Charan on the

spot is most natural and the fact that he is the brother of the deceased

would not dilute the probative value of the evidence, is the submission.

Shri N.B. Jawade, learned Additional Public Prosecutor would submit

that since the testimony of P.W.8 Charan is confidence inspiring, it is

of no relevance that the other witnesses have not supported the

prosecution. Inviting my attention to the provisions of Section 134 of

the Indian Evidence Act, the learned Additional Public Prosecutor

would submit that ultimately evidence has to be weighed and not

counted.

5. I have given my anxious consideration to the evidence on

record and the submissions of the learned Advocate for the accused

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and the learned Additional Public Prosecutor for the respondent.

6. The learned Additional Public Prosecutor fairly does not

dispute that the case of the prosecution entirely rests on the testimony

of P.W.8 Charan-the brother of the deceased. He, however, submits

that the testimony of P.W.8 is implicitly reliable and the credibility of

the witness is not shaken, in the cross-examination.

7. Before I advert to the evidence of P.W.8, it would be

apposite to note the broad contours of the prosecution case. The

deceased is one Sanjay Vitthal Hagwane, a resident of village Shirpur,

Tahsil Mahagaon. Concededly, the deceased was a fugitive on the run

since he was charged with the homicidal death of his maternal uncle

Mahadeo Mohkar. The deceased used to hide in the forest in the day

time and visit village Shirpur after the evening hours. The deceased

used to stay at the house of one Shobha Madhav Ingale. The

relationship of the deceased with Shobha is blurred.

8. The case of the prosecution is that on 21-6-1996 at 10-00

a.m. P.W.8 heard the mother of accused Bhiva Ingale shouting that the

deceased was being beaten. The version, which is unfolded, in the

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evidence of the only witness who has supported the prosecution, is that

the accused were assaulting the deceased infront of the house of one

Tuka Borkar. The deceased was beaten with sticks and accused 4

Bharat was yielding a knife. The accused dragged Sanjay to the house

of the police patil and P.W.8 Charan and his mother followed. The

deceased was taken to the police station by the accused and at 4-00

a.m. or thereabout, Charan was informed by the police that Sanjay was

dead.

9. The english translation of the evidence prima facie

appeared to me to be incorrect. I have, therefore, scrutinized the

original record and have relied on the vernacular recording of the

evidence. In the cross-examination of P.W.8 Charan, an admission is

extracted that when he reached the spot, Sanjay was being dragged.

The other material admission which is extracted from Charan is that it

takes 15 to 20 minutes to reach the house of Tukaram Borkar by

Mahur Road. This admission is relevant since the only other way of

reaching the house of Tukaram is from the river and what is revealed

from the vernacular recording of the evidence is that Charan admits

that at the relevant time due to the river water and presence of

ipomoea carnia (beshram plant), the access to Tukaram's house

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through the river was ruled out.

The first information report which is lodged by P.W.8

Charan is not exhibited for reasons best known to the prosecution.

However, the record reveals that the contents of the report were

brought to the notice of the witness and were stated to be correct. It is

obvious, that the first information report ought to have been exhibited.

Be that as it may, since the informant states that the contents of the

report are correct, I have perused the contents of the first information

report which reveal that the evidence of Charan is at stark variance

with the first information report on material aspects. Charan is

denying any knowledge about the relationship between the deceased

and Shobha Ingale. An attempt to falsely implicate accused 4 Bharat is

also apparent. Charan has deposed that accused 4 Bharat was yielding

a knife. Apart form the fact that the version is clearly inconsistent with

the first information report, the knife was as a fact seized from the

trouser pocket of the deceased as is recorded in the inquest

panchanama. The medical evidence on record rules out the use of

knife as a weapon of assault. On an overall appreciation of the

testimony of Charan, I am not persuaded to hold that the testimony is

confidence inspiring. The witness is falsified on material aspects and

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his presence on the spot is extremely doubtful. At any rate, even on

the admission of the witness, when he reached the spot, the deceased

Sanjay was being dragged by the accused. This admission implicitly

excludes the possibility of Charan having witnessed the assault. The

topography which has come on record, and the admissions extracted

from Charan, would render it highly improbable that Charan could

have witnessed the assault. I agree with the learned Advocate for the

accused that in the absence of corroborative evidence, it would be

extremely unsafe to base the conviction on the testimony of the brother

of the deceased Charan.

10. The judgment and order dated 21-9-2004 in Sessions Trial

98/1996 delivered by the Additional Session Judge, Pusad is not

sustainable in law and is set aside. The accused are acquitted of the

offence punishable under Section 304 Part II of the Indian Penal Code.

Bail bonds of the accused shall stand discharged. Fine paid by the

accused, if any, be refunded to them.

The appeal is allowed and disposed of accordingly.

JUDGE

adgokar