1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.481 OF 2007 Akbar Vasant Kale Age 22 years, Occupation R/o Angar, Taluka Shrigonda, District Ahmednagar .. APPELLANT (Orig.Accused No.1) Versus State of Maharashtra ..RESPONDENT Shri Vijay Sharma, Advocate for appellant Shri V.D.Godbharle, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 12th November 2009 ORAL JUDGMENT ( PER P.V.HARDAS, J.) 1. The appellant who stands convicted for an offence punishable under Section 143, 147, 148, 225 and 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.100/- in default to undergo further simple imprisonment for six months for offence punishable under Section 302 of the Indian Penal Code and simple imprisonment for six months for offence punishable under Section 143 of the Indian Penal Code, simple 2 imprisonment for one year for offence punishable under Section 147 of the Indian Penal Code, simple imprisonment for six months for offence punishable under Section 148 of the Indian Penal Code, simple imprisonment for one year for offence punishable under Section 225 of the Indian Penal Code and simple imprisonment for one year for offence punishable under Section 353 of the Indian Penal Code with a direction that all the substantive sentences shall run concurrently, by the Ad-hoc District Judge-2 and Additional Sessions Judge, Ahmednagar, by judgment dated 28.9.2007, in Sessions Case No.118 of 2006, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.4 Police Head Constable, Prabhakar Zodge was attached to the Shrigonda police station as a Head Constable. On 22.9.2004 he recorded the complaint of P.S.I. Girme and on the basis of the said complaint registered offence vide Crime No.230 of 2004. He thereafter handed over the investigation of the said crime to P.I. Abhinkar. P.W.6 Dy.S.P. Ranjit Abhinkar was attached to the Shrigonda police station as P.I. in September 2004. On 22.9.2004, P.W. 5 Kavita had come to the police station 3 and lodged a complaint that she had been ravished by one Ankush Vasant Kale. Accordingly, on the basis of the said complaint, an offence punishable under Section 376 and 366 of the Indian Penal Code vide Crime No.229 of 2004 was registered. The aforesaid offence was handed over to P.S.I. Girme for investigation with a direction to arrest the accused with the help of the staff. At 11.25 p.m., one Police Hawaldar Dhodge gave a wireless message that the police party who had gone to arrest the accused Ankush was attacked by members of the Pardhi community and Police Naik Dhawde was injured. P.W.6 P.I. Abhinkar immediately left for the scene alongwith the staff and when they were near the railway crossing, they noticed P.S.I. Girme bringing the injured. The injured was then taken to the hospital of Dr.Munot at village Kashti. Upon examination, the Medical Officer declared him as dead. A complaint accordingly came to be lodged by P.S.I. Girme and offence came to be registered by P.W.4 Prabhakar Zodge. On being entrusted with the investigation, P.W.6 P.I. Abhinkar went to the scene of the incident and drew the scene of the offence panchnama in the presence of prosecution witnesses at Exh.30. At the scene of the offence one axe was found which was stained with blood and came to be seized. At the scene of the offence he noticed electric light which was burning. The electricity had been taken illicitly from the electric pole from the field of one Walmik Charme. The 4 injured which included P.S.I. Girme and the staff were referred to the Civil Hospital for treatment. The clothes of deceased Dhawde were produced by Constable Gaikwad which came to be seized in the presence of panchas. The pistol of P.S.I. Girme also came to be seized vide seizure memo at Exh.31. P.W.6 P.I. Abhinkar recorded the statements of witnesses and supplementary statement of P.S.I. Girme. The post mortem on the dead body of Ankush Dhawde disclosed that he had sustained four external injuries. Injuries sustained by deceased Dhawde were : (i) Compound fracture of left frontal 7 parietal bone 8” x 1” x 1” in dimensions verticle in direction, brain matter of left cerebral hemisphere protruding outside the wound, with clotted blood surrounding the edges; (ii) Incised wound 2” x 1” x 1/2” verticle in direction over left frontal region 1” lateral to injury No.1; (iii) Incised wound 2” x 1” x 1/2” over right parito occipital region oblique in direction; (iv) Compound fracture of right 4th and 5th metacarpal bones 3” x 1” x 1”. 5 As per the post mortem report at Exh.45, deceased had died as a result of injury to left cerebral hemisphere (Brain) vital organ. The seized articles were referred to the Chemical Analyzer and statements of witnesses under Section 164 of the Code of Criminal Procedure came to be recorded. The accused came to be arrested by P.W.7 P.I. Bhangare. The arrest panchnama of the accused is at Exhs.36 and 37. During custodial interrogation, the appellant Akbar is alleged to have expressed his willingness to point out the place where he had hidden the sword. Accordingly, the memorandum came to be recorded in the presence of witnesses at Exh.38 and thereafter the accused led the Police and the panchas to near a tree and produced the sword. The said sword came to be seized in the presence of panchas at Exh.39. Further to the completion of investigation a charge-sheet came to be filed against the present appellants at Exh.11. The appellant denied his guilt and claimed to be tried. We may at this juncture point out that since the appellant and the other accused who were put up for trial with him were absconding, charge-sheet had initially been filed against the other accused. The evidence was led in the first trial which ended in the acquittal of the accused. The appellant and the other accused came to be arrested subsequently and another charge- sheet came to be submitted against them. 6 3. Prosecution in support of its case has examined seven witnesses. P.W.1 Raichand, a Police Constable states about the police party going to the village for arresting one Ankush Kale accompanied by P.W.5 Kavita and her husband. He states that they had parked the jeep and P.W.5 was made to stand at some distance from the hut of Ankush Kale. The police officials went ahead and apprehended Ankush. Ankush when he was brought outside the hut raised cries for help and as a result of which people from the locality assembled. The people from the locality assaulted the police party and in order to save themselves, P.S.I. Girme open fired two rounds. Since the people assembled were not dispersing, he was required to open fire on 4/5 occasions. Thereafter the police party as well as P.W.5 Kavita and her husband ran for their lives. When they returned back to the place where the jeep was parked they found that Police Constable Dhawde was not accompanying them. They went back to village Angar and with the help of villagers searched for Dhawde who was found lying in an injured condition. Thereafter, they took injured Dhawde to the Medical Officer at Kashti who had declared him as dead. The evidence of this witness is not of much assistance as he does not identify any of the accused. P.W.2 Walmik was declared hostile by the prosecution and was cross- examined. Nothing of importance is elicited in the cross- examination to be of any assistance to the prosecution. 7 4. Prosecution has examined P.W.3 Hanmant Girme the first informant. He too speaks about going for arresting accused Ankush Kale accompanying by the Police staff and P.W. 5 Kavita. He states that they had apprehended Ankush Kale in the hut and thereafter he started shouting in Pardhi language. Ankush came out of the hut and thereafter Ankush started running. Thereafter about 8 to 10 men and women had attacked the police party with iron rod, stones and sticks. He states that he had informed the mob that they were police officers but the mot did not relent. As a result, he was required to fire his revolver. He states that they realised that Dhawde was not with them and, therefore, had returned back to the village and with the help of villagers had found Dhawde who was lying in an injured condition. The Medical Officer had declared Dhawde dead on examination. He states that the names of the members of the mob who had attacked the police party were disclosed by P.W.5 Kavita. He states that on the basis of that he had lodged his complaint in the police station. In cross-examination he states that complainant P.W.5 Kavita and others were towards the rear of the hut. He states that towards the rear of the hut there was darkness but there was light in front of the hut. 5. P.W.5 Kavita states about accompanying the police 8 for arresting Ankush Kale. She states that the jeep was stopped on the road and her husband and the driver stayed back int he jeep while she alongwith the police alighted from the jeep. She states that the police had asked her to stand at some distance and accordingly was standing at a distance of 25 feet from the house of the accused Ankush Kale. Police entered the house of Ankush and apprehended Ankush. Ankush thereafter raised cries for help and hearing of his shoutes the accused including the present appellant arrived there. She states that she saw them in the light of the electric bulb. She further states that the present appellant was armed with an iron rod. She further states that all of them attacked Constable Dhawde and P.S.I. Girme fired one bullet. She then states that she alongwith the police ran towards jeep but since they did not notice Constable Dhawde they went to village Angar and collected the villagers and thereafter returned back to the scene of the offence. There they had noticed Dhawde lying in an injured condition. Dhawde was thereafter declared dead by the Medical Officer. In the cross-examination she has admitted not to have stated in her previous statement about the present appellant being armed with an iron rod. She has further admitted that in her 164 statement she had stated that accused Lavya and Vashya had assaulted Dhawde with sword. 6. Recitals of the F.I.R. clearly indicate that Ankush Kale 9 on being apprehended by the police party had managed to extricate from the clutches of police and ran to a distance of 40 meters from the hut. Ankush thereafter raised cries and the residents of that area had gathered there in his support. The Police had chased Ankush to the distance of about 40 meters and thereafter the Police party was assaulted. Evidence of P.W.5 Kavita in clear terms indicates that she was made to stand 20 feet away from the hut towards the rear of the hut. The electric light was burning on the front of the hut while there was darkness towards the rear of the hut. Obviously, P.W.5 Kavita was made to stand in darkness so as not to be visible to Ankush Kale when he was apprehended. Be that as it may, there is no evidence to indicate that at the scene of the offence where the police party was actually assaulted by the villagers, there was any electric light. Witnesses have deposed about having witnessed the electric light in front of the house of Ankush Kale. The extent of the illumination and as to whether illumination was adequate at the site where the police party/Dhawde was assaulted is not clear from the evidence of the witnesses. Moreover, evidence of P.W.5 Kavita is extremely omnibus as she states that the entire mob assaulted Dhawde. Obviously, the assembly which had gathered there at that time was not an unlawful assembly as there was no previous meeting forming common object to assault members of the police party. It is no doubt true that common object can 10 develop on the spur of moment. Obviously, someone from the assembly assaulted Constable Dhawde. As to exactly who was the assailant is not deposed by the witnesses. Obviously, seeing the attack on the police party, the police party as well as P.W.5 Kavita and others took to their heels. Apart from the fact that there was darkness at the scene of the offence, according to us none of the prosecution witnesses had actually witnessed the assault on Dhawde. In such circumstances, therefore, according to us no reliance can be placed on the solitary testimony of P.W.5 Kavita. It is no doubt true that the conviction can be based on the solitary witness. Law does not require quantity of evidence but insists on quality. However, in order to base a conviction on the testimony of a solitary eye witness, the testimony of the eye witness should be of sterling quality. A reference in this behalf may usefully be made to the judgment of Supreme Court in Shivaji Sahebrao Bobade vs. State of Maharashtra, AIR 1973 SUPREME COURT 2622. Upon perusal of the testimony of P.W.5 Kavita, we find that her evidence is not of such high quality as to inspire the confidence of the Court for its acceptance. Since there is no other evidence which would corroborate the evidence of P.W.5 Kavita, according to us, the appellant is entitled to be given the benefit of doubt. 11 7. Accordingly, this criminal appeal is allowed and conviction and sentence of the appellant is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal481.07)