Narayan Sadanand Rakshe vs The State Of Maharashtra
2022 Latest Caselaw 792 Bom

                      rpa                          1/16                    1 apeal 701 1998.doc


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION


                                   CRIMINAL APPEAL NO.701 OF 1998


                      Narayan Sadanand Rakshe                        .. Appellant
                             Versus
                      State of Maharashtra                           .. Respondent

                                                   ......
                      Mr.Shantanu R. Phanse, Appointed Advocate for the Appellant.
                      Mr.R.M. Pethe, APP for the Respondent - State.
                                                    ......


                                        CORAM : PRAKASH D. NAIK, J.

                                        RESERVED ON : SEPTEMBER 3, 2021.

                                        PRONOUNCED ON : JANUARY 20, 2022.


                      JUDGMENT :

The appellant has preferred this Appeal under

Section 374 of Cr.P.C., challenging the judgment and order dated

25th August, 1998, passed by learned Additional Sessions Judge,

Ratnagiri, in Sessions Case No.5 of 1993, convicting the appellant

for the ofence punishable under Section 307 of IPC and

Digitally sentencing him to sufer rigorous imprisonment for a period of signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER four years and to pay fne of Rs.500/-..

AHER     Date:
         2022.01.20
         12:30:38
         +0530
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2            The prosecution case is that the accused and injured

are residents of village Kalambaste. The injured had provided

fnancial assistance to accused. Hee weas cultivating agricultural

land of injured. She weas demanding repayment of amount given

by her to accused. She had taken over the cultivation of land from

accused. Ornaments of the injured and her sister weere given to

accused for meeting his fnancial need. Even on demand, the

accused weas not returning the ornaments. Heence, the relations

betweeen accused and the injured weere strained. On 23 rd February,

1992, injured and her sister weere proceeding by road of village

Kalambaste for attending marriage ceremony. When both of them

weere near school building on the said road, accused suddenly

came there and assaulted injured Anusaya weith knife causing

several injuries on her person. At the time of assault, the person

by name Gangaram from the same village weas proceeding by the

road. Hee sawe the assault. Hee weent to the residence of Anusaya.

Hee informed her family about the incident. Heusband and sons of

Anusaya came to the spot of incident. Anusaya weas lying on the

ground weith bleeding injuries. She weas taken to hospital at

Chiplun. Heer complaint weas reduced into weriting. Crime weas

registered against the accused. During the course of

investigation, spot panchanama weas recorded. Accused weas rpa 3/16 1 apeal 701 1998.doc

arrested. Knife, clothes weith blood stained weere seized from the

accused. Clothes of injured weere also seized under panchanama.

Statements of weitnesses weere recorded. Seized property weas sent

for chemical analysis. C.A. report and injury certifcates weere

received. On completing investigation, charge-sheet weas fled

against the accused.

3 Charge weas framed against the accused for the

ofence punishable under Section 307 of IPC by order dated 17 th

November, 1995. Accused pleaded not guilty and claimed to be

tried.

4 The prosecution examined seven weitnesses. P.W.1

Mrs.Anusaya Bhuvad, is the complainant/injured weitness, P.W.2

Santosh Ghadashi is panch for spot panchanama, P.W. 3 Keshav

Badde is the panch for seizure of clothes of injured, P.W.4

Gangaram Bhuvad is eye weitness to the incident, P.W.5

Ramchandra Sakharam Shigvan is the panch weitness for seizure

of clothes of injured, P.W.6 Dr.Prakash Gangadhar Patankar is the

medical oficer attached to Cottage hospital, Chiplun, P.W.7

Mrs.Rukmini Metkar is the eye weitness to the incident.

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5           P.W.Nos.3, 5 and 7 did not support the prosecution

case. They weere declared hostile.



6           The prosecution has relied upon the C.A. report

relating to blood of the injured, blood of accused, blood scrapings

on knife, full pant, Baniyan, Sari and blouse.

7 The trial Court convicted the accused for the ofence

punishable under Section 307 of IPC and sentenced him to sufer

imprisonment.

8 Learned appointed advocate representing the

appellant submitted that there are serious discrepancies in the

evidence. The beneft of doubt ought to have been given to the

accused. There weas no sealing of samples, panch weitnesses have

not supported prosecution case. Investigating oficer is not

examined. There is nothing on record to showe wehen and howe the

accused is arrested. Knife, clothes samples weere not sealed. The

relationship betweeen the accused and the complainant weas

strained. The complainant has not given particulars of the

ornaments and not disclosed the date on wehich the ornaments

weere handed over to the accused. Witness Ghadshi is not rpa 5/16 1 apeal 701 1998.doc

trustweorthy. P.W.1 has not referred to presence of any other

person at the time of incident. Witness Gangaram cannot be

believed, as he is closely acquainted weith the complainant. Heis

statement weas recorded after seven days from the date of

incident. There are no independent weitness. The weitness has not

described the clothes in the statement before the police. Non

examination of investigating oficer has caused prejudice to the

defence. The contradictions and omissions could not be proved.

There weas no explanation for not examining the investigating

oficer.

9 In support of submission, learned counsel for the

appellant has relied upon the followeing decisions:

         (i)      Sahib Singh Vs. State of Punjab1;
         (ii)     Salim Akhtar Alias Mota Vs. State of U.P.2;
         (iii)    Amarjit Singh Alias Bhabbu Vs. State of
                  Punjab3;
         (iv)     Kapildeo Sinha Vs. Kirandeo Prasad and
                  Anr.4; and
         (v)      Hemant Tukaram Karande Vs. State of
                  Maharashtra5
1     (1996) 11 SCC 685
2     (2003) 5 SCC 499
3     1995 Supp (3) SCC 217
4     (2008) 14 SCC 658;
5     (2016) ALL MR (Cri) 522
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10          Learned    APP   submitted      that   the      evidence        of

weitnesses proves the charge against the accused.             There is no

dispute about the identity of the accused. The injured weitness has

attributed specifc role of assault to the accused. She has referred

to the injuries sufered by her. There are no omissions in her

evidence. She weas treated by the medical oficer. Heer version is

supported by medical evidence. C.A. report supports the

prosecution case. Non examination of the investigating oficer is

not fatal to the prosecution case. The version of the injured

weitness is supported by the medical evidence. Knife used in the

assault weas recovered during investigation. The blood of the

victim weas found on the knife and her clothes. Evidence of injured

weitness is supported by C.A. reports.

11 I have scrutinized the evidence of weitnesses. P.W.1

Anusaya Bhuvad is the injured weitness. She is complainant.

According to her, she weas proceeding alongweith Rukmini Metkar,

weife of her brother-in-lawe. Accused approached her. Hee stated

that she weould not get her ornaments. The accused assaulted her

weith knife. Blowes weere given on nose, hand, chest and abdomen.

There weas bleeding. After assault, her sons and husband came to

the spot. She weas taken to hospital. Heer complaint weas recorded.

She also stated that the accused weas at her residence 4 to 5 years rpa 7/16 1 apeal 701 1998.doc

ago. At that time, her ornaments weere taken by him on the

ground that there is japti at his residence. Hee also took

ornaments of her sister. Inspite of demand, accused weas not

returning the ornaments. In the cross-examination, she deposed

that she has stated wehile recording to her complaint that she

weore pink coloured sari and blouse. The said fact is not refected

in her complaint. She had also given description of clothes weorn

by the accused. The said fact is not refected in her complaint.

She had also disclosed to police that after assault tweo sons and

husband of the injured came to the spot. She cannot assign any

reason wehy it is not recorded in her complaint. Heer

supplementary statement weas recorded by police. The cause of

assault weas demand of ornaments by her weith accused. She had

not stated to the police that gold ornaments weere given to the

accused for marriage of his son. She cannot assign any reason

wehy it is accordingly recorded in her complaint. At the time of

incident, none weas passing by the said road. She shouted for

help. The incident had occurred near the school. She weas not

unconscious. After gathering of villagers, she weas not

unconscious at the spot of incident. She cannot assign any reason

as to wehy it is stated so in her statement dated 27 th February,

1992.

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12             From the aforesaid version of P.W.1, it can be seen

that there are omissions in her version. Although Rukmini weas

accompanying her, she has not referred to reaction of Rukmini at

the time of assault. The fact that her husband and sons came to

the spot weas not mentioned in her statement/complaint. The

particulars about the ornaments being handed over to the

accused is not mentioned in the complaint. There are

contradictions in her version before the Court and in the

statement recorded by police about the reasons for handing over

the gold ornaments to the accused.

13 P.W.2 Santosh Ghadashi is the panch weitness for the

spot panchanama Exhibit-21 and seizure panchanma of knife and

clothes of accused Exhibit-22. Hee stated that he weas

accompanied by another panch Shivgan. There weere blood stains

on the road. Samples weere collected from the spot. School

building is situated near the spot. Panchanama weas prepared at

the spot. Thereafter he visited police station. Accused weas

present at the police station. Knife weas found in his pocket. In

the cross-examination, he stated that he weas paying guest of

Rukmini Metkar. Son of complainant is his friend. Hee weas at

hospital for meeting complainant. On the day of preparing rpa 9/16 1 apeal 701 1998.doc

panchanama he weas at the residence of Raghunath (son of

complainant). After panchanma he weas at village Kambaste. Hee

weas called by police at Chiplun after tweo hours. Hee weent to the

spot wehen police had arrived. Other villagers had gathered at the

spot. Heis signatures weere obtained on the paper slip. Hee do not

remember the number of such paper slips signed by him. Hee do

not remember as to wehat had happened to the paper slips.

14 P.W.3 Keshav Badde, is the panch weitness for seizure

of clothes of injured. Hee did not support the prosecution case. Hee

weas declared hostile. Hee weas cross-examined by the prosecution.

Hee denied that the clothes weere produced in his presence by

constable. Hee also denied that the clothes of the injured weere

showen to him, and, that the panchanma weas prepared for seizure

of clothes.

15 P.W.4 Gangaram Bhuvad is the eye weitness to the

incident. Hee stated that he weas proceeding toweards Bahaddur

Shaikh Naka on bicycle. Anusaya (P.W.1), and Rukmini Metkar

weere proceeding by the road and they weere near the school

building. They weere ahead of him. The accused gave 5 to 6 blowes

on the person of Anusaya by knife. Hee weent to residence of rpa 10/16 1 apeal 701 1998.doc

Anusaya and informed about the incident to her husband. Hee

came back to the spot weith husband and tweo sons of Anusaya. Hee

noticed injuries on the person of Anusaya. In the cross-

examination, he admitted that Anusaya (P.W.1) is his distant

relative. Hee is on visiting terms weith her. On the day of assault,

police came to village. On that day, he did not go to police. After

the incident for 7 to 8 days, he weas coming back to his residence

after attending weork. Sanotsh Ghadashi weas present alongweith

villagers at the spot. Injured weas taken to hospital. Hee weas not

aweare wehether accused weas giving fnancial assistance to

Anusaya. The evidence of this weitness discloses that he is related

to P.W.1. Hee is on visiting terms weith her. For a period of about 7

to 8 days, he did not approach the police. Heis presence at the

scene of ofence is doubtful. P.W.1 has deposed that at the time of

incident, no one weas proceeding from the road. Although

according to him, the accused had assaulted the injured weith

knife, he did not intervene in the assault. Hee did not try save the

injured from the assault by the accused. Although the injured weas

lady accompanied by another lady, he did not try to rescue her

from the attack by accused. According to him, he had informed

the incident to the husband and son of the complainant. Both of

them came to the spot. P.W.1 has stated that in her complaint she rpa 11/16 1 apeal 701 1998.doc

did not mention the presence of her husband and sons after the

incident of assault. She has also stated that she weas not

unconscious after the assault. Heusband and sons of the

complainant weere not examined by the police. Presence of P.W.4

at the place of incident is doubtful.

16 P.W.5 Ramchandra Shigvan is the panch weitness for

seizure of clothes of P.W.1. Hee weas declared hostile. The cross-

examination of this weitness by the prosecution weas not of

assistance to prosecution. P.W.6 Dr.Prakash Patankar had

examined the complainant. Hee has referred to the injuries

sufered by the complainant weith sharp weeapons. In the cross-

examination, it weas stated that injury nos.1 to 3 weere suficient in

ordinary course of nature to cause death. Injuries are possible by

knife (Article-3).

17 P.W.7 Rukmini Metkar has not supported prosecution

case. She stated that she knowes Anusaya, but, she is not her

relative. The incident had occurred 8/9 years ago. She is not

knoweing as to wehat had happened to Anusaya. According to

version of P.W.1, P.W.7 weas accompanying her. She weas supposed

to be the eye weitness to the incident. She weas cross-examined by rpa 12/16 1 apeal 701 1998.doc

prosecution. She stated that she knowes accused. She denied that

she weas proceeding to Dhamane for attending marriage weith

P.W.1. She denied the incident of assault.

18 The C.A. report Exhibit - 30 dated 30 th April, 1992

relates to blood of injured. The result showes it is of blood group

"A". The CA report Exhibit 0 31, relates to blood of accused.

Report of analysis is blood group "AB". CA report Exhibit 32

relates to scrappings werapped in paper, knife, manila, full pant,

Banian, saree and blouse. Blood weas noticed on articles. Exhibit 2

and 3 i.e. scrappings and knife are stained weith blood Group "A".

Blood on Exhibits 4 and 5 i.e. manila and baniyan gives "A" and

"B" blood antigens. Exhibits 5, 7 and 8 i.e. full pant, saree and

blouse reveals "A" as weell as "B" group antigens.

19 In the case of Sahib Singh Vs. State of Punjab

(Supra), it weas observed that sealing of the arm at the spot is

serious infrmity because the possibility of tampering weith

weeapon, cannot be ruled out. In the case of Salim Akhtar Alias

Mota Vs. State of U.P. (Supra) , it weas observed that pistol weas

not sealed at the spot. It creates considerable doubt regarding

factum of recovery. In the case of Amarjit Singh Alias Babbu rpa 13/16 1 apeal 701 1998.doc

Vs. State of Punjab (Supra) it is observed that non sealing of

revolver at the spot is a serious infrmity because the possibility

of tampering weith weeapon cannot be ruled out . In the case of

Kapildeo Sinha Vs. Kirandeo Prasad and Anr. (Supra), it weas

observed that the investigating oficer weas not examined and no

reason has been indicated as to wehy he is not examined. In the

case of Hemant Tukaram Karande Vs. State of Maharashtra

(Supra), this Court had observed that the question about non

examination of the investigating oficer is a question of lawe, wehich

is required to be decided in the context of facts of each case.

Since there is no straight jacket formula that non examination of

the investigating oficer weould per se fatal to the prosecution

case.

20 The evidence of weitnesses does not inspire

confdence. The complainant (P.W.1) had dispute weith accused.

There are several omissions in her evidence. The evidence

discloses that residential chawels weere situated near place of

incident. Shops, school weas situated near spot. The incident took

place on road. There are no independent weitnesses. P.W.2, P.W.3

and P.W.5 are panch weitnesses. P.W.2 is acquainted weith family of

P.W.1. Hee acted as panch in tweo panchanma Exhibit-21 and rpa 14/16 1 apeal 701 1998.doc

Exhibit-22. P.W.3 and P.W.5 have not supported prosecution case.

P.W.4 is relative of P.W.1. Hee did not go to police. Heis statement

weas recorded after seven days. Heis version is doubtful. The trial

Court in paragraph 34 of the judgment has observed that P.W.4

has not ofered any explanation for delay in recording his

statement. P.W.7 Rukmini weas allegedly accompanying P.W.1. She

is eye weitness. She has not supported prosecution. P.W.1 has

stated that she is weife of her brother-in-lawe. P.W.7 has denied her

relationship weith P.W.1. Thus, there is no independent evidence in

support of prosecution case. It is not established beyond doubt

that appellant has assault P.W.1 Heusband and sons of P.W.1 weere

not examined. Independent weitnesses weere not examined.

21 The investigating oficer has not been examined by

prosecution. No explanation is forthcoming for not examining the

investigating oficer. In paragraph 34 of judgment, the trial Court

has observed that the prosecution has not examined investigating

oficer for explaining delay in recording statement of P.W.4.

Heoweever, the judgment is silent about efect of non examination

of investigating oficer, and, wehether any prejudice is caused to

the defence. There weere omissions and contradictions in the

evidence of weitness. The evidence discloses there weere chawels, rpa 15/16 1 apeal 701 1998.doc

shops, school near place of incident. The investigating oficer

could have been called upon to explain wehy statements of

independent weitnesses weere not recorded. Whether he had

recorded statement of husband and sons of P.W.1. The judgment

is completely silent about reason for non examination of

investigating oficer. Prosecution is silent about this aspect. The

trial Court has lightly brushed aside this circumstance. The

accused is entitled to knowe from investigating oficer wehat

weitnesses have been examined in the course of investigation,

wehether the weitnesses examined in Court weere examined by him,

wehat version weas given before him by weitnesses and wehether the

same is consistent weith the evidence given before Court. Non

examination of any weitness denies an opportunity to the accused

to prove such statements of weitnesses made during investigation.

In such a case, investigating oficer is an essential weitness and his

examination is necessary to unfold the narration of facts made

before him by the prosecution weitnesses. In this case, it is not

knowen wehy investigating oficer weas not examined.

22 Considering the aforesaid circumstances, I fnd that

prosecution has not been able to establish the charges beyond

reasonable doubt. Heence, the conviction imposed by the trial rpa 16/16 1 apeal 701 1998.doc

Court has to be set aside and the accused deserves to be

acquitted.

22           Heence, I pass the followeing order:



                           :: O R D E R ::


  (i)    Criminal Appeal 701 of 1998, is alloweed;

(ii) The judgment and order dated 25 th August, 1998,

passed by learned Additional Sessions Judge, Ratnagiri,

in Sessions Case No.5 of 1993, convicting the appellant

for the ofence punishable under Section 307 of IPC and

sentencing him to sufer rigorous imprisonment for a

period of four years and to pay fne of Rs.500/-, is set

aside and the appellant is acquitted;

(iii) Professional fees be provided to the appointed advocate

in accordance weith rules;

(iv) Criminal Appeal No.701 of 1998, stands disposed of

accordingly.

(PRAKASH D. NAIK, J.)