Bombay High Court
Madhav Neelkanth Thombe & Anr vs The State Of Maharashtra on 17 January, 2018
Bench: T.V. Nalawade
Cri.Appeal 613/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 613 OF 2002
1. Madhav Nilkanth Thombe,
Age 28 years, Occu. Jeep Driver
and owner r/o Kanhergaon,
Taluka and District Hingoli
2. Govinda Nilkanth Thombe,
Age 32 years, Occu. Business,
r/o as above .. Appellants
Versus
. The State of Maharashtra .. Respondent
Mr Satej S. Jadhav, Advocate for appellants
Mr P.G. Borade, A.P.P. for respondent - State
Mr A.M. Kulkarni Advocate h/f Mrs M.A. Kulkarni, Advocate for
complainant
CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 7.12.2017
DATE OF PRONOUNCING
THE JUDGMENT : 17.1.2017
JUDGMENT (Per A.M. Dhavale, J.)
1. The two appellants as accused persons in Sessions Case
No.2/2002 were prosecuted for committing murder and attempt to
commit murder punishable under Sections 302, 307 read with Sec.34
of Indian Penal Code and were convicted by learned Ad hoc Additional
Sessions Judge, Hingoli by judgment dated 12.9.2002 for both the
offences and were sentenced to imprisonment for life and fine of
Rs.500/- each in default rigorous imprisonment for six months under
Section 302 of Indian Penal Code and rigorous imprisonment for five
Cri.Appeal 613/2002
years and fine of Rs.500/- each in default rigorous imprisonment for
six months under Section 307 read with Sec.34 of Indian Penal Code
with direction to run both the substantive sentences concurrently.
Aggrieved by the said judgment, they have preferred this appeal. The
special feature of this case is that they were charged for committing
murder and attempt to commit murder by deliberately dashing their
jeep to the bike of the deceased.
2. The facts relevant for deciding this appeal may be stated as
follows :
This prosecution has been initiated on the basis of Crime
No.54/1999 registered on 18.9.1999 at 12.05 midnight for offences
punishable under Sections 304, 338 of Indian Penal Code on the F.I.R.
of P.W.1 Vitthal. P.W.1 Vitthal is a retired Gramsevak. Deceased
Pandurang was his son-in-law married to his daughter Vimal about 18
years ago. On 17.9.1999, son-in-law Pandurang, resident of
Phalegaon, Taluka Washim was invited by P.W.1 Vitthal at his house at
Kanhergaon for dinner on account of Mahalaxmi festival. Son of the
deceased Pandurang by name Nitin was residing with P.W.1 Vitthal
and he had gone to Phalegaon and given message of invitation to his
parents on 15.9.1999. As per F.I.R., on 17.9.1999 at 6.45 p.m., P.W.1
Vitthal was waiting at S.T. Stand, Kanhergaon for his son-in-law and
for return of his cattle. That time, he saw Jeep bearing No.MH-7875
came from Washim side (Washim is towards North of Kanhergaon and
Hingoli is towards South). Some persons got down from the jeep and
the jeep started return journey towards Washim. Accused no.1
Madhav, accused no.2 Govinda and one more person were in the jeep.
Cri.Appeal 613/2002
The jeep was being driven by accused no.1 Madhav. Within five
minutes, at 6.50 p.m., one Madan Biyani - P.W.8 gave him message
that one bike rider had died under the jeep and on verification by him,
the deceased person was his son-in-law. There was also one person
injured and the spot was nearby. P.W.1 Vitthal along with one Vasant
Gawande P.W.3 rushed to the spot and saw that Commander Jeep MH-
22-7875 had left the road and got down the slope and his son-in-law
and his bike was under the jeep and his son-in-law was dead. One
Ananda Korde P.W.9 was there in injured condition. P.W.1 Vitthal
narrated in the F.I.R. that Rekha, sister of accused nos.1 and 2 was
given in marriage to one Dhondu and there were strained matrimonial
relations between them. She was staying at her maternal house for
fourteen months and thereafter due to intervention of the deceased
Pandurang, she was sent to the house of her husband, but thereafter
within short time, she committed suicide by consuming poison.
Accused nos.1 and 2 and their maternal uncle held deceased
Pandurang responsible for death of their sister and prosecuted him
along with husband and matrimonial relations of Rekha. Since then
both the accused were threatening deceased Pandurang to kill and
P.W.1 Vitthal was trying to convince him. P.W.1 Vitthal alleged that
accused nos.1 and 2 deliberately gave dash to the bike on which his
son-in-law Pandurang was travelling and thereby they killed his son-in-
law and seriously injured pillion rider Ananda. On th basis of such
F.I.R., crime was registered at C.R.No.54/1999 under Section 304, 338
of Indian Penal Code. During investigation, the police seized clothes
of the deceased and inquest panchnama was drawn and autopsy was
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conducted. The post mortem notes disclosed eleven injuries on the
deceased out of which three fractures were on the skull. The offence
was investigated into by A.P.I. Ankushkar P.W.18. He recorded
statements of material witnesses. Injured Ananda was sent to Civil
Hospital, Washim and thereafter to District Hospital, Akola. His
statement came to be recorded after three months. As per his
statement, after the accident, both the accused had inflicted blows of
iron bar and sticks on the skull of deceased Pandurang and on him as
well. He was unconscious for two months. The accused were arrested
and after recording statements of material witnesses and sending the
articles to the Chemical Analyst, the charge-sheet was submitted in
the Court. It is relevant here to record that the jeep in question was
seized and accused no.1 as a registered owner obtained its interim
custody from the Court.
3. After commission of the case, the learned Additional Sessions
Judge, Hingoli framed charge at Exh.29 under Section 302/34 and
307/34 of Indian Penal Code. The accused pleaded not guilty. Learned
Additional Sessions Judge, Hingoli convicted accused nos.1 and 2 as
referred above and acquitted accused no.3 Arjun (jeep driver) of
offences with which he was charged and tried.
4. Mr Satej Jadhav, learned Advocate for the appellants has taken
us through the evidence on record. He argued that the prosecution
witnesses completely changed the story. The initial story was only
death by deliberate accident, but the prosecution witnesses
introduced story about assault by accused nos.1 and 2 by crow bar
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and sticks after the accident. He argued that it was a pure case of
accident and there is no material to show that it was deliberate
accident. There is no reliable material to show that accused no.1 was
driving the jeep. There is no material to show that accused nos.1 and
2 have assaulted the deceased with sticks and bars. The statement of
P.W.9 Ananda was recorded after three months. There is no material
to show that he was seriously wounded and was not in a position to
speak for such a long time. There was no motive for the accused to
commit the crime. As per prosecution case, accused no.3 Arjun was
driving the jeep. The jeep was belonging to accused no.1 but the
prosecution did not produce R.C. Book and other documents about
ownership. There are material contradictions in the evidence of
witnesses including P.W.9 Ananda and the learned trial Judge erred in
relying on the evidence. It is a case of accident due to negligence of
deceased Pandurang. At the most, there may be some negligence on
the part of the jeep driver, but accused no.1 cannot be held guilty for
murder and attempt to commit murder. No role has been assigned to
accused no.2. Therefore, the conviction of the appellants is not
sustainable. Hence, the appeal be allowed and both the accused be
acquitted.
5. Per contra, learned Advocate Mr A.M. Kulkarni holding for Mrs
Kulkarni for the informant and learned A.P.P. Mr Borade for the State
supported the judgment of the trial Court. They argued that the jeep
had passed barricades erected by the police to some distance from
the spot. The jeep had gone completely on the wrong side and
dashed the bike and had pushed it down the road. The accident
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shows that as deposed by P.W.9 Ananda, it was a deliberate accident.
There was previous enmity. Accused nos.1 and 2 had grudge against
deceased Pandurang, as he was mediator in resuming cohabitation by
Rekha which led to commission of suicide by Rekha. The deceased
was prosecuted by the accused for offence punishable under Sections
498A and 306 of Indian Penal Code along with husband and maternal
relatives of the deceased Rekha. The evidence on record shows that
accused nos.1 and 2 while travelling in their jeep had seen deceased
Pandurang travelling on bike and they immediately returned from
Kanhergaon with sole intention to give dash to the bike. It was not a
case of accident. Subsequent to the accident, both the accused have
assaulted both the injured persons and it is ensured that Pandurang
should die on the spot. Delay in recording the statement of Ananda is
not suspicious, as he was taking treatment at Washim, Akola and then
Nagpur. The learned trial Judge has properly appreciated the
evidence and no interference is called for in the conviction and
sentence.
6. The points for consideration with our findings are as follows:
(I) Whether deceased Pandurang met
with a homicidal death ? ..Not proved
(II) Whether accused no.1 Madhav
along with accused no.2 Govinda
drove the jeep deliberately so as
to give dash to the bike driven
by deceased Pandurang on which
P.W.9 Ananda was sitting as a
pillion rider ? ..Not proved
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(III) Whether accused nos.1 and 2 had
given blows of crow bar and sticks
on the skull of deceased Pandurang
and P.W.9 Ananda ? ..Not proved
(IV) Whether the accused nos.1 and 2
have committed offence punishable
under Sections 302, 307 r/w 34 of
Indian Penal Code ? ..In the negative
(V) What order and sentence ? ..The appeal is
allowed. Conviction
and sentence of both
the accused are set
aside
- REASONS -
7. In the present case, there is no dispute that on 17.9.1999
deceased Pandurang was travelling on his bike from Washim side
towards Kanhergaon (from North to South). That time, P.W.9 Ananda
was sitting on his bike as a pillion rider. That time, jeep bearing MH-
22-7875 came from Kanhergaon side and it gave dash to the bike of
deceased Pandurang. There is evidence of witnesses and
documentary evidence to show that the jeep has gone on wrong side
and dashed the bike and pushed it down the road and it had left the
road. The photographs Articles A to I disclose that the jeep has left
the road and the bike is exactly at the center of the front wheels of
the jeep. It is on its wrong side, i.e it has crossed the lane meant for
vehicles coming from opposite direction and gone beyond and down
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the road. It is also not disputed that deceased Pandurang died on the
spot, while P.W.9 Ananda, who was a pillion rider was seriously
wounded. There is evidence of Ananda to that effect supported by
other witnesses. Therefore, both the facts that deceased Pandurang
died due to dash to his bike and P.W.9 Ananda seriously wounded due
to the accident are not disputed.
8. It is, however, contention of P.W.9 Ananda that accused nos.1
and 2 had also given blows of iron bar and sticks on the skull of
deceased Pandurang and P.W.9 Ananda. The prosecution story is that
it was a deliberate dash with intention to cause death followed by
assault with iron bar and sticks. Whereas, according to the accused, it
is a case of accident. It was suggested that accident took place due
to rash and negligent driving by deceased Pandurang. The evidence
on record shows that the bike was proceeding from Washim to
Kanhergaon (North to South), whereas the jeep was proceeding from
Kanhergaon to Washim i.e. from South to North. The jeep was
expected to be on the left side of the road from South to North, i.e. on
the Western side. Whereas, the bike was expected to be on the
Eastern side. The evidence on record and the photographs disclosed
that the jeep has crossed its lane, gone in the wrong lane and then
left the road. In that case, there cannot be any rashness and
negligence on the part of the bike rider. It may be a deliberate
accident or gross negligence of the jeep driver or failure of brakes of
the jeep. In view of above facts, the issue whether it is homicidal
death or not and whether the accused have committed murder and
attempted to commit murder or not will have to be decided together.
Cri.Appeal 613/2002
9. The prosecution has examined eighteen witnesses, which can
be grouped along with the relevant documents as follows :
Main witnesses : P.W. 9 Ananda - the pillion rider injured eye
witness.
P.W.1 - Vitthal, father-in-law of the deceased, who has visited
the spot immediately after the accident and has deposed that accused
no.1 Madhav was driving the jeep and accused no.2 Govinda was
sitting in the jeep along with third person when it left Kanhergaon at
6.45 p.m. for proceeding towards Washim.
P.W.4 Datta who was also called along with deceased
Pandurang for meals for Mahalaxmi festival at the house of P.W.1
Vitthal has posed himself as an eye witness to the accident as well as
assault by accused nos.1 and 2. His evidence shows that he is having
extremely weak eye sight almost near to the blindness and he has
been disbelieved by the learned trial Judge.
P.W.5 Shaikh Naeem, who runs a garage of removing of
punctures at Kanhergaon. As per prosecution case, he had seen
accused no.1 driving the jeep towards Washim, but has turned hostile
and not supported.
P.W.6 Nandu Bhagat is having his house by the side of the road
near the spot. The prosecution claimed that he had seen the
deliberate accident, but he has turned hostile and not supported the
prosecution at all.
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P.W.8 Madan Biyani is running a pan shop at Kanhergaon. He
learnt about the accident and death of Pandurang. According to
prosecution, he had seen accused no.1 Madhav travelling the jeep at
high speed towards Washim, but he has not supported the
prosecution.
P.W.11 Madan is a cow boy and according to prosecution, he
had seen the accident, but he has turned hostile.
P.W.16 Rambhau was going on his bicycle at the time of
accident and had seen the accident. He has partially supported the
prosecution by stating that he had seen the jeep taking a turn and
thereafter resulting into accident. He deposed that water was
administered to one of the injured. With the permission of the Court,
learned A.P.P. cross-examined him. He is not supporting the
prosecution. He did not speak against the accused.
Other material witnesses :
P.W.2 Vimal is widow of the deceased Pandurang. She has
deposed about previous enmity on account of Rekha's suicide and the
threats given by the accused to her husband.
P.W.3 Vasanta is a spot panch (Panchnama Exh.54).
P.W.7 Vasanta is a shop keeper from whom deceased had
purchased pan, just before his death. The deceased had told him that
he was proceeding to Kanhergaon for meals. His evidence is not
material.
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P.W.10 Laxman is uncle of Rekha's husband Dhondu. He
deposed about the strained relations between Rekha and Dhondu and
involvement of deceased Pandurang in the said dispute.
P.W.12 - Kishan is a panch to the spot panchnama Exh.54. He
has identified the various articles seized from the spot.
P.W.13 - Shaikh Rahimoddin is Head Constable, who has carried
the viscera to Chemical Analyst's office.
P.W.14 - A.S.I. Sartaj has recorded the F.I.R. Exh.40 of P.W.1
Vitthal and registered the crime.
P.W.15 - Subhash is a photographer, who has taken
photographs of the spot articles A to I. He had also prepared video
cassette, but it is not brought on record.
P.W.17 - Dr. Santosh Sarda was Medical Officer at Washim. He
has examined Ananda and issued certificate Exh.77, but did not
specifically depose about the injuries. He stated that the contents of
the certificate are correct.
P.W.18 - Narsing Ankushrao is the Investigating Officer.
The evidence of P.W.9 Ananda, P.W.4 Datta and P.W.1 Vitthal is
very material.
The inquest panchnama of the deceased is at Exh.41. Seizure
of blood stained clothes of the deceased is at Exh.42. Post mortem
notes Exh.43 are admitted. As per post mortem notes, the deceased
had sustained following injuries :
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1) Right lower end or radius and ulna fracture;
2) Abrasion over right elbow joint 3 x 3 cm
3) Right tibia and fibula fracture at middle side, bone pieces
piercing out medially CLW 5 x 5 cm
4) Right calf rigor CLW, irregular margin 3 x 3 cm
5) Right foot dorsal aspect linear CLW 5 x 1 cm bone deep
6) U shaped CLW over right sole 1 x 5 cm x bone deep
7) Oval shaped CLW on medial side of right tibia lower end
1 x 1 cm
8) Circular CLW over medial aspect of knee joint 1 x 1 cm
9) Lt. Parietal bone fracture with CLW 4 x 3 x bone deep
10) Left temporal junction CLW 5 x 1 x 2 cm
11) Temporal bone fracture with CLW 3 X 2 X 2 cm age of
injury 24 hours
The post mortem note disclose that injury nos.1 to 8 are on the
legs of the deceased, all on right side, whereas injury nos.9 to 11 are
fracture injuries on the skull. Injury no.9 is contused lacerated wound
on left parietal region 4 x 3 cm bone deep. Injury no.10 is contused
lacerated wound 5 x 1 x 2 cm left tempo parietal region. Injury no.11
- temporal bone fracture with contused lacerated wound 3 x 2 x 2 cm.
It is obvious that injury of the size 4 x 3 cm contused lacerated wound
cannot be caused by blows of iron bar and sticks, but injury nos.3 and
4 are possible by blows of iron bar and sticks.
The evidence of P.W.17 Dr. Sarda and certificate Exh.77 of
P.W.9 Ananda show that Ananda was brought to the hospital on
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17.9.1999 at 8.15 p.m. by police of Kanhergaon naka Police Station
with history of accident. Following were the injuries on his person :
1) Cross injury, right feet fractured to tibia - mid linear - compound
open fracture to right feet below knee;
2) Lacerated wound 5 x 2 cm to right parietal;
3) CLW 5 x 2 cm oblique to forehead right side
On the backside of the certificate, radiological report of District
Hospital, Akola has confirmed the linear fracture of right temparo
parietal occipital region (Injury No.1). Dislocation of right
tarsometatarsal multiple fractures (Injury No.2) Nattalle 2 nd
metatarsal mid shaft analysis. Right toe with fracture of leg and soft
right tibia (not clearly legible). Certificate shows only one lacerated
wound of 5 x 2 cm on right parietal region, which can be caused by
blows of iron bar or stick.
10. The evidence of P.W.1 Vitthal shows that on that day,
17.9.1999, there was religious programme of Mahalaxmi for which
deceased Pandurang was called along with some others from Washim.
Pandurang's son Nitin, who was residing with P.W.1 Vitthal had given
message to Pandurang about two days earlier. P.W.4 Datta was also
called. The evidence indicates that they were expected for the meals
at noon time, but P.W.4 Datta alone came at 2.00 p.m. and Pandurang
did not come. On enquiry, P.W.4 Datta told him that he would be
coming shortly. He stated that he waited for Pandurang and then sent
Datta back to Washim to bring Pandurang. After sometime, Datta
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returned and informed that Pandurang had left his office. That time,
P.W.1 Vitthal was waiting at the S.T. bus stand. He told Datta to go to
his house to make preparation for 'Aarti'. His evidence shows that at
about 6.45 p.m., Madhav came near S.T. Stand with a jeep. Govinda
A-2 was in a hotel at bus stand. Govinda boarded in jeep with
something in his hand and the jeep proceeded in the direction of
Washim. It was Commander Jeep bearing registration No.MH-22-7875.
Within five minutes P.W.8 Madan came running to him. He was
making enquiry about P.W.1 Vitthal's son Bandu and then he met
Bandu and Bandu told P.W.1 Vitthal that his son-in-law was being
assaulted. P.W.1 Vitthal then proceeded in the direction of Washim.
Along with Bandu, Vasanta, Subhash, Maroti etc. There was police
tent with barricades on the road for checking the vehicles. About 100
and 150 feet away from the tent, motorcycle of his son-in-law
Pandurang was lying by the side of road along with jeep of accused
no.1. Both the vehicles were down the road. Son-in-law was lying
there with serious injuries on his body including head. One Ananda
P.W.9 was also lying there in injured condition. P.W.1 Vitthal stated
that his son-in-law had acted as a mediator to persuade Rekha to
resume co-habitation. Rekha was sister of accused no.1 Madhav and
accused no.2 Govinda. After a long stay at her maternal house, she
had resumed co-habitation and immediately thereafter committed
suicide at Phalegaon. Accused nos.1 and 2 were annoyed with
deceased Pandurang and held him responsible for death of Rekha.
He, therefore, lodged report that it was a deliberate accident
committed by accused nos.1 and 2. He has taken photographs and
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handed over those photographs to the police. His cross-examination
reveals that at the time of incident, he was unable to see the things
clearly and was wearing spects of high number of 4 to 4.5. It was not
possible for him to see anything without spects and he was almost
blind without spects. He stated that after retirement in 1997, he had
changed the spects. Still, he was unable to watch the things and for
last one year, he was not using the spects. He was not using the
spects at night time due to advise of the doctor. In the witness box,
when demonstration of his eye sight was taken, he was unable to
figure out the number of fingers shown to him from short distance and
number of persons standing at a distance of ten feet. His cross-
examination shows that the S.T. Bus stand Kanhergaon is a crowded
area, where large number of shops, vehicles are there and people also
stand. He admitted that when he was standing at the S.T. Bus stand,
there was darkness on the road. His presence on the spot itself is
doubtful. Deceased Pandurang was expected to come to him for
meals and his time of arrival was totally uncertain. Therefore, P.W.1
Vitthal could not have waited for his son-in-law at S.T.Stand.
Considering his weak eye sight, his evidence that he has seen
accused nos.1 and 2 in a jeep carrying something and returning
towards Washim at 6.40 p.m. cannot be believed. Learned trial Jude
has rightly disbelieved him on this point. We agree that evidence of
P.W.1 Vitthal deserves to be discarded.
11. P.W.1 Vitthal's cross-examination shows that the spot of
incident is 700 to 800 feet away from the bus stand and there is a
Police outpost at a distance of 100 to 150 feet from the S.T. Bus
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stand. Some drums were kept as barricades by the police for
checking the vehicle and obstructing them from proceeding in a high
speed. The "accident" took place at a short distance from the police
tent and in natural course, the police would have certainly rushed to
the spot, but not a single witness is examined, who had seen the
accident immediately after the incident.
12. Evidence of P.W.2 Vimal, widow of deceased Pandurang about
previous enmity and prosecution of her husband by accused nos.1 and
2 in a case of suicide by Rekha is not disputed, but her evidence that
accused nos.1 and 2 had given threats to her husband is not
supported by subsequent conduct of the deceased or his relatives.
The matter was not reported to the police and the evidence shows
that deceased Pandurang was regularly travelling from Kanhergaon to
Washim and Washim to Kanhergaon on his bike, whereas accused
nos.1 and 2 were plying their jeep as a public carrier on the same
route. If there was any substance in the allegations of threat,
deceased Pandurang would not have taken risk of plying on the same
route by bike that too without wearing helmet.
13. The evidence of panch witnesses P.W.3 Vasant and P.W.12
Kishan is not very much material. The factual situation deposed by
them is not much in dispute. There are photographs Articles A to I on
record, which makes the position clear.
14. P.W.4 Datta is an eye witness. He stated that P.W.1 Vitthal had
called him and deceased Pandurang for meals for Mahalaxmi festival.
He is resident of Kalamba (Mahali), Taluka Washim. He stated that
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Nitin had brought the message of invitation. He contradicts P.W.1
Vitthal by stating that he and Pandurang decided to go to Kanhergaon
at 5.00 p.m. and he was at Washim in connection with his personal
work upto 5.30 p.m. He did not say that he had gone to Kanhergaon
at 2.00 p.m. and P.W.1 Vitthal made enquiry with him about deceased
Pandurang and he was sent back to Washim for bringing Pandurang.
He stated that at 5.30 p.m. he was waiting at Pusad naka for
proceeding to Kanhergaon. That time, Pandurang came on a bike
along with P.W.9 Ananda as a pillion rider. Pandurang asked him to
join them, but apprehending imposition of fine by the police, he
declined to ride the bike as a triple seat. He stated that after
Pandurang and P.W.9 Ananda proceeded on bike, the jeep bearing
registration No.MH-22-7875 came there for proceeding to
Kanhergaon, but his co-brother (P.W.1) had told him that he should
not seat in the vehicle of public carrier as it was dangerous.
Thereafter, he boarded another vehicle and was sitting on the front
side. When the vehicle crossed Painganga river, he saw Pandurang
driving his bike ahead of them. Then he saw a Commander jeep
coming from opposite side and deliberately giving dash to
Pandurang's bike. That time, his jeep was reaching the spot and he
requested the jeep driver to stop the jeep, as the vehicle coming from
Kanhergaon side had given deliberate dash to his relative's bike. He
stated that when his jeep was halted 200 feet away from the spot, he
saw accused nos.1 and 2 giving blows of iron rod on the back side of
skull of Pandurang and Pandurang lying by the side of the road. He
stated that when his vehicle reached near the spot, he saw both the
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accused giving blows of iron rod on the head of P.W.9 Ananda. He
and other passengers alighted on the spot and the three accused
persons present there ran away towards Painganga river.
15. His evidence on this point seems to be improbable. If he had
seen deliberate dash of the jeep coming from opposite side to the bike
of Pandurang, he must be within short distance from the said spot. He
could not have seen the said incident and could not have identified
the person from a long distance. His jeep was moving and by the
time, the dash was complete and the bike and jeep went down the
road, he could not have reached there. His evidence that he also saw
accused nos.1 and 2 giving blows of iron rod and sticks to Pandurang
from a distance of 200 feet and thereafter when his jeep reached the
spot, he saw both the accused giving blows of iron rod and sticks to
P.W.9 Ananda is highly improbable. Giving of dash, then getting down
from the jeep and giving of blows requires sometime. There is
limitation to the reach of eye sight of a person. If the jeep was
moving, all these things could not have happened by the time the
jeep reached the spot. Apart from it, his cross-examination shows
that his entire evidence on this point is by way of improvement. He
has not disclosed these facts before the police. The contradictions
have been duly proved. His evidence is not consistent with the
evidence of P.W.1 Vitthal. Therefore, his presence on the spot itself
becomes doubtful. P.W.9 Ananda has not deposed about presence of
P.W.4 Datta. The learned trial Judge has also doubted his evidence
and rightly so. We hold that his evidence was rightly discarded. His
evidence shows that he had taken Ananda to the hospital at Washim
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and thereafter to Akola. P.W.9 Ananda, however, stated that he
shouted for help, but nobody came there and thereafter he became
unconscious. He regained consciousness after a long time.
16. As earlier discussed, other material witnesses P.W.5 Shaikh
Naeem, P.W.6 Nandu, P.W.8 Madan, P.W.11 Madan, P.W.16 Rambhau
have not supported the prosecution.
17. P.W.10 Laxman is elder brother of Ramji, father-in-law of Rekha,
sister of accused nos.1 and 2. He deposed about the strained relation
between Rekha and her husband Dhondu and Rekha stayed at her
maternal house for thirteen months. Thereafter, Rekha had resumed
co-habitation with son Dhondu at Phalegaon. When he had gone out
of station, Rekha committed suicide. His evidence does not directly
connect accused nos.1 and 2 with the crime.
18. The most crucial evidence is of P.W.9 Ananda, who has been
believed by the learned trial Judge to convict the accused. He was
pillion rider with the deceased Pandurang, which is not in dispute. He
deposed that he was also proceeding for meals at the house of P.W.1
Vitthal on account of Mahalaxmi festival. He deposed that on that
day, he and deceased Pandurang saw a movie at 12.00 to 3.00 p.m.
and thereafter second movie was seen by them from 3.00 to 5.00 p.m.
and thereafter they started proceeding towards Kanhergaon. He
deposed that P.W.4 Datta met them, but he refused to accompany
them. He stated that when they reached near Rajegaon, one
Commander jeep overtook them. Thereafter there was a bicyclewala
in front of them. After sometime when they were crossing the bridge,
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a jeep was standing in cross direction on the left hand side. It
suddenly gave dash to their bike. Both of them were thrown away.
Thereafter, Pandurang was assaulted by accused nos.1 and 2 by iron
rod and bamboo stick on the back side of his head and top of his
head. His hair were caught from the front side and he was given
blows on the back side. He was shouting for help but nobody had
come there. Then he was also given blows by the accused on his
head and he became unconscious. He stated that the dash of the
jeep was on his foot and his foot was seriously injured. He stated that
he gained consciousness about 1 to 2 ½ months later. He has
identified accused nos.1 and 2 as the assailants.
19. P.W.9 Ananda stated that he was proceeding along with
Pandurang on bike for the first time. He is resident of Phalegaon
which is nine kilo meter away from Washim. The road between
Washim and Phalegaon is not pakka road and they required half an
hour to reach Washim. He stated that at the time of incident, the
headlights of the bike were not switched on and the headlights of the
jeep coming from the opposite side were also not switched on. He
stated that surgical operation was carried out on his injuries to the leg
and he might have been discharged after two months. He could not
state whether there was a police chowki or tent and barricades or
drums near the spot, but he was confronted with his previous
statement, which shows such statement for which he has no
explanation. His statement regarding a meeting of P.W.4 Datta and
his refusal to join them on the bike is also not there in the statement.
His evidence that their bike was driven from the left side is not there
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in his statement, but it is not material. His statement that he was
given blows on his head by two assailants is not there in his statement
for which he has no explanation. He stated that after the dash of the
jeep, the incident continued for 40 to 50 minutes, which is totally
improbable and contrary to the evidence of P.W.4 Datta. If he had
became unconscious immediately, he could not have stated about the
time. He denied that he and Pandurang had consumed liquor and
Pandurang was riding the bike in negligent manner by consuming
liquor. He denied that accused nos.1 and 2 had not assaulted them.
P.W.9 Ananda is most material witness. As per his evidence, his
statement was recorded by police two to four days after he returned
home and he had returned home after 2 ½ months.
20. As per evidence of P.W.16 Rambhau Bangar, at the material
time he was proceeding on his bicycle. He saw the accident in which
two persons were injured. He stated that several persons had
gathered there and one of the injured was provided water. It
indicates that injured witness P.W.9 Ananda was not unconscious and
people had gathered there. He has not supported the prosecution.
Therefore, he was cross-examined, but it was not suggested to him
that accused no.1 was driving the jeep and accused no.2 was in the
jeep. Nor it was suggested that they had assaulted deceased
Pandurang and P.W.9 Ananda by iron bar and sticks. The story
regarding assault by sticks and crow bar is clearly after thought. In
that case, P.W.9 Ananda either was not unconscious or must have
become unconscious immediately after the accident. If he became
unconscious immediately after the accident, it would have been
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shown in his medical certificate Exh.77, but it is not shown there.
Besides, he deposed that incident was going on for 40 to 50 minutes
after the dash. If he would have been unconscious, he could not have
stated it. The evidence of P.W.4 Datta shows that there were many
passengers and jeep driver in the jeep in which he was proceeding
and he had witnessed the incident. In that case, the jeep driver and
other passengers were independent and material witnesses, but none
of them has been examined. If accused nos.1 and 2 were in the jeep,
they would have been injured, but arrest panchnama does not show
that they were injured and they were immediately arrested on the
spot. The evidence shows that it was heavy traffic road and there
were several vehicles passing along the road at the relevant time.
Therefore, it is not possible to accept the evidence of P.W.9 Ananda
that he raised shouts and nobody came there.
21. The prosecution ought to have produced the medical evidence
regarding admission and discharge card and the certificate of Medical
Officer as to whether P.W.9 Ananda was unconscious for such a long
time. The certificate Exh.77 does not disclose that he was
unconscious. There is no material to show that P.W.9 Ananda was
admitted in the hospital for such a long time and that he was unable
to make a statement for such a long time. The delay of more than
three months in recording the statement of most material witness is a
material lacuna in the prosecution case. Though the factum of
accident is not disputed and though the accident might be deliberate
also, the prosecution did not prove the panchnama of condition of
jeep to rule out possibility of accident due to vehicular defect.
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Besides, the evidence as to who was driving the jeep was very material
and this fact was not disclosed by P.W.9 Ananda to the police at the
earliest.
22. As per the application moved by accused no.1 and the documents
annexed, accused no.1 Madhav is registered owner of the jeep and it was
returned to him on bond. As per provisions of Motor Vehicles Act, it was
his boundant duty to inform the police as to who was driving the vehicle
at the relevant time and the factum of accident should have been
reported by him, but if he has not done so, he would be guilty only for the
offence punishable under the Motor Vehicles Act. It cannot be presumed
that he being the owner, he must have been driving the vehicle. In fact,
the prosecution had prosecuted accused no.3 on the assumption that he
was driving the jeep.
23. The evidence on record shows that the accident has taken place
near a police tent and was witnessed by several persons. The
prosecution was bound to examine them to prove as to who was driving
the said jeep. When such evidence is available and is not examined,
prosecution cannot take the help of Section 106 of Evidence Act. Shifting
of burden under Section 106 of Evidence Act is permissible only when
there is no other evidence available. In this regard, we rely on
Murlidhar & Ors. Vs. State of Rajasthan, (2005) 11 SCC 133.
24. As far as accused no.2 is concerned, no role is assigned to him.
25. The role assigned to accused nos.1 and 2 of giving blows of iron
and sticks after the incident is after thought and by way of
improvements. Except evidence of P.W.9 Ananda, there is no other
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evidence to show that accused nos.1 and 2 were travelling in the said
jeep and accused no.1 Madhav was driving the jeep. We also find that
accused nos.1 and 2 had no direct motive to commit murder of
Pandurang on account of his role as a mediator in resumption of co-
habitation by Rekha before committing suicide by her. If they had any
direct ill feelings, those would be against husband of Rekha and not
against the deceased Pandurang, who was simply a mediator. On the
other hand, inclusion of his name as accused person can be a motive
for false implication of accused nos.1 and 2 by relatives of deceased
Pandurang.
26. After considering the entire evidence on record, we find that the
learned trial Judge has appreciated the evidence properly except in
respect of appreciation of evidence of P.W.9 Ananda. He has not
given any importance to the delay in recording the statement of P.W.9
Ananda and absence of medical evidence to justify such delay. He
has also not considered the systematic efforts made by the
prosecution to change the story to the deliberate accident (+) assault
by accused nos.1 and 2. If the accident had taken place while
accused nos.1 and 2 were travelling in a jeep, the police and persons
in the near vicinity would have immediately visited the spot and the
accused could not have been escaped. The accused were not arrested
on the spot and their vehicle being used as public carrier, there is a
possibility that they must have engaged a driver. The contention of
P.W.9 Ananda that he raised shouts and nobody came there does not
appear to be probable. Besides, there is evidence on record that
P.W.4 Madan had been to the spot immediately after the incident.
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There is no witness examined who had been to the spot immediately
after the accident, who could have corroborated the evidence of P.W.9
Ananda. We, therefore, hold that the prosecution has failed to prove
the role of the accused in the entire act beyond reasonable doubt.
Therefore, the conviction of both the accused under Sections 302, 307
read with Sec.34 of Indian Penal Code is not sustainable. Hence, the
appeal deserves to be allowed. We accordingly answer the points
formulated by us and pass the following order:
- ORDER -
(I) Criminal Appeal is allowed.
(II) The conviction and sentence of both the accused for offence
punishable under Sections 302, 307 read with Sec.34 of Indian Penal
Code in S.T. No.2/2000 delivered by Ad hoc Additional Sessions Judge,
Hingoli on 11th/12th September 2002 is hereby set aside. Both the
accused are acquitted of all the charges.
(III) The appellants-accused shall furnish P.R. bond of Rs.10,000/-
with like surety each under Section 437-A of the Cr.P.C.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
vvr
