1 cri.appeal 142-91 pmw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 142 OF 1991 Shankar Bhiva Kamble & Ors. ..Appellants vs. The State of Maharashtra & Anr. ...Respondents Mr. Ranjit R. Bhonsale, Advocate the Appellant. Mr. P.S. Hingorani, APP for the State. Mr. B.R. Patil for Respondent No.2. CORAM : V.M. KANADE & M.L. TAHALIYANI, JJ. DATED : 16TH NOVEMBER, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- The appellants feel aggrieved by the judgment and order dated 20th February, 1991 passed by the Additional Sessions Judge, Kolhapur in Sessions Case No.23/1985. The appellants 1 to 9 were original accused nos. 1 to 9 in the said Sessions Case. They have been convicted of the offences punishable under sections 147, 148, 302 r/w. 149 of Indian Penal Code. All of them have been sentenced to suffer 2 cri.appeal 142-91 imprisonment for life and to pay fine of Rs.1,000/- each and in default to suffer RI for six months for the offence punishable under section 302 r/w. 149 of IPC. The learned Trial Judge has not awarded separate sentences for the offences punishable under sections. 147 and 148 of IPC. 2. All the appellants are resident of village Are, Taluka-Karvir, District Kolhapur. The deceased Shamrao Patil was mainly resident of Kolhapur and used to visit village Bid Taluka Karvir in the same district to supervise the work of his agricultural field. The deceased had acquired certain land which originally belonged to persons belonging to scheduled caste/ scheduled tribes. It appears that the appellants belonged to either schedule caste/ schedule tribe. There was some dispute regarding the land earlier owned by the persons belonging to scheduled caste and scheduled tribe and later on acquired by the deceased Shamrao Patil. 3. The prosecution case is that the present incident, in which the deceased Shamrao Patil was killed, was the outcome of the dispute between the Shamrao Patil on one hand and the group of appellants and others on the other hand. It is alleged that since the appellants were not 3 cri.appeal 142-91 happy and they were aggrieved by the possession of certain land by deceased Shamrao, they had formed unlawful assembly the common object of which was to commit murder of Shamrao Patil. It is further alleged that in prosecution of common object of the said unlawful assembly, the appellants and others had committed murder of Shamrao Patil on 27.11.1984. 4. Shamrao Patil had visited his agricultural field on 27.11.1984 alongwith his son Chandrakant. The said field is known as ‘Telyacha Mal’. After supervising the work at the said field, the deceased wanted to go to his another field known as ‘Mharki Tambol’. It is the case of the prosecution that one is required to pass through ‘Thal panand’ to go to ‘Mharki Tambol’ from ‘Telyacha Mal’. 5. While the deceased was passing from ‘Thal panand’ road he was allegedly attacked by the appellants who were holding axe, sickle and sticks. One of the blow had proved to be fatal which had hit neck of the deceased. It was an axe blow. It is the case of the prosecution that Appellant No.5 Gautam and Appellant No.7 Rangarao were holding one axe each and others were holding sticks. Nephew of deceased by name Trimbak Patil was eye-witness to the incident. He is also complainant/ 4 cri.appeal 142-91 first informant in the present case. The son of the deceased namely Chandrakant had also reached the spot after hearing shouts of his father and he had seen some of the appellants running away from the spot. Employee of Chandrakant namely Ravindra Gore is third eye witness in the case. 6. In brief, it is the case of the prosecution that the deceased was assaulted by appellants by means of above described weapons and one of the injuries caused to the deceased on neck had proved to be fatal. The deceased had died due to shock due to massive haemorrhage and spinal cord injury. According to the medical officer the injury described above sustained by the deceased on the neck was sufficient to cause death in ordinary course of nature. The complainant, son of the deceased and employee of son of the deceased were the eye witnesses. Clothes of the accused were seized. Clothes of the deceased were also seized. Some of the weapons were recovered at the instance of the appellants, particularly axes were recovered allegedly at the instance of Appellant No.5 Gautam and Appellant No.7 Rangarao. Seized property was sent to Chemical Analyzer. The Chemical Analyzer reported that blood group of the deceased was “O”. Some of the weapons and clothes of some of the appellants were found to be stained with blood of group 5 cri.appeal 142-91 “O”. As such the prosecution case is based on the eye witnesses, recovery of weapons and medical evidence. Appellants had pleaded not guilty to the charge framed by the learned Trial Judge. The trial therefore, proceeded further. In all 16 witnesses were examined by the prosecution in support of its case. The spot was inspected by the Trial Judge himself during the course of trial. After examination of the accused u/s. 313 of Criminal Procedure Code, the impugned judgment and order was delivered. 7. When the appeal was taken up for final hearing, this court was informed that Appellants No.1, 4, 5 and 8 had expired. The proceedings against the said appellants were therefore, directed to be abated. 8. As far as the rest of the appellants are concerned, as already stated by me, the case is mainly based on the evidence of eye witnesses, recovery of weapons and the Chemical Analyzer Report. 9. Before we examine the evidence of eye witnesses, let it be stated here that the Learned Judge has placed heavy reliance on reports of Chemical Analyzer. It appears that the Ld. Trial Judge has read all 6 cri.appeal 142-91 the reports of Chemical Analyzer in evidence u/s. 293 of Cr.P.C. No doubt, the report of Chemical Analyzer or Assistant Chemical Analyzer can be used as evidence in the trial without examining the expert on the subject matter. At the same time, it cannot be ignored that a duty is cast upon the court to summon and examine the expert if it is thought fit in a particular case. In the present case, the only evidence with regard to forwarding of articles to the Chemical Analyzer can be found in the evidence of PW 16. Evidence of PW 16 in that regard runs as under :- “On that day I sent the seized clothes, and instruments in this crime, in sealed cover to C.A. Pune for examination, with PC Kulkarni, No.B54. PC Kulkarni is present before the court today. He cannot talk because of paralytic attack. I forwarded these articles with said Kulkarni. The office copy of the letter sent to the C.A. is on record.” 10. From the report of the C.A., it appears that the articles were received by C.A. from the police on 10th December, 1984. The articles were seized during investigation on different dates. The prosecution has not laid any evidence as to how the articles were stored and who was the custodian of articles during the period of investigation, as to when the same were collected by the Investigating Officer from the custodian and as to who had received the same in the office of C.A. and in what condition. No doubt, Section 293 permits the court to use the report of 7 cri.appeal 142-91 C.A. in evidence. However, the court cannot dispense with the vital evidence. It is necessary to ascertain as to whether the seized property was properly preserved or not. If the prosecution fails to produce such evidence, it is always advisable that the Trial Court shall take necessary steps to summon the expert and examine him as to the subject matter of his report. Trial Court shall not act as silent spectator. In fact, it is the duty of the Trial Court to participate in the trial to the extent permissible by the law. Section 293 itself permits the court to summon the expert if it is thought necessary. In the present case, in our considered opinion, considering the serious nature of charge and scanty evidence given by the police officers with regard to the collection, preservation and dispatch of the seized articles, it was the duty of the Trial Court to summon expert or at least some officer from the Forensic Science Laboratory who had received the articles for Chemical Analysis. As such, in our opinion, heavy reliance placed by the learned trial court on the report of the Chemical Analyzer could have been justified, had there been other evidence to inspire confidence that the articles were properly preserved and there was no scope for tampering with the articles. The provisions of section 293 of Cr.P.C. does not relieve the prosecution of its primary duty of establishing each and every fact beyond reasonable doubt. 8 cri.appeal 142-91 11. Therefore, the case mainly is based on the evidence of PW 11, 12 and 13. Let us, therefore, examine the evidence of eye witnesses i.e. PW 11, 12 and 13. At this stage, it may be noted here that the PW 11 is nephew of the deceased and PW 12 is son of the deceased. PW 13 is one of the employees of PW 12. It is also necessary to be noted here that according to the evidence of PW 12 he had rushed to the spot alongwith his 3 employees including PW 13. The other two employees have not been examined. There were fields on both sides of the road known as ‘Thal panand’. No independent witness has been examined. In addition to this, the evidence of PW 11 reveals that he had gone to police station accompanied by the Police Patil. It has also come in the evidence that Police Patil had also lodged the report. The Police Patil has not been examined for which there is no reasonable explanation. It is not clear as to whether report lodged by Police Patil was prior in time to the report lodged by PW 11. As such PW 11 and 12 are very close relatives of the deceased and PW 13 is the employee of son of the deceased. Considering the relation of the witnesses with the deceased and above said weak points in the prosecution case, it is necessary to examine the evidence of PW 11, 12 and 13 with great caution. 9 cri.appeal 142-91 12. PW 11 has stated in his evidence that he was returning from his field via ‘Thal panand’. At that time he heard shouts of Shamrao and rushed to the spot i.e. on ‘Thal panand’. He had seen the appellant nos.1, 3, 5, 6, 7 and 9 assaulting the deceased. He had seen that the appellant nos.5 and 7 were holding one axe each and others were holding sticks. He had seen appellant no.9 holding a spear. He shouted addressing the assailant that they should not assault the deceased. According to this witness, he had seen above stated appellants and others assaulting the deceased by means of above described weapons. The assailants had tried to make an attempt on the PW No.11 also. However, PW 11 jumped into the standing crop by the side of Panand and rushed home. He narrated the incident to his father. He visited the house of Police Patil. Police Patil was not there. After some time he went to Karvir police station alongwith the Police Patil and lodged the report. 13. PW 12 is not eye witness to the actual assault. PW 12 was in his field when he heard the shouts of his father. He had also heard PW 11 shouting. He, therefore, rushed to the direction of the shouts and found that his father was lying in pool of blood at Thal panand. He had accompanied by PW 13. PW 12 had seen the appellant nos. 1, 2, 4, 5, 7, 10 cri.appeal 142-91 8 and 9 while running away from the spot. When he reached near his father he found that his father was dead due to multiple injuries. He, therefore, went home and requested PW 11 to lodge a police report. 14. Evidence of PW 13 is very cryptic, he was accompanying PW 12 and had reached the spot alongwith PW 12. He had seen appellant nos. 1, 3 4, 5, 6, 7, 8 and 9 running away from the spot. He had seen appellant nos. 3 and 7 holding one axe each and appellant no.9 holding a spear. He had also seen the deceased lying in a pool of blood. According to him, the deceased was dead on the spot. 15. As stated earlier, the whole case is based on evidence of PW 11, 12 and 13. I have already stated that two other employees of PW 12 have not been examined. Police Patil has also not been examined. The report filed by Police Patil, when he visited police station alongwith PW 12, had not been produced before the Trial Court. In the first place, if we examine the evidence of PW 11 it can be seen that from the narration of the incident itself it was not possible for him to see faces of all the assailants. According to him, the assailants were around the victim and PW 11 was on the road known as ‘Thal Panand’. As such, he could have seen at the most faces of the assailants who were 11 cri.appeal 142-91 facing him. He could not have identified the assailants whose back side was towards the PW 11. The presence of PW 11 on the spot itself, therefore, appears to be doubtful. PW 11 has stated that there was standing crop on both sides of the panand. Whereas, it has come in the evidence of PW 2 panch witness, that there was no crop on either side of the panand at the time of panchanama. Panchanama was drawn on the next day. Moreover, PW 11 has also given admission at some stage that there was no crop on either side of the panand. He has stated in the evidence that when the assailants tried to assault him he had jumped into the standing crop. This discrepancy in the evidence of PW 11 creates doubt about his presence on the spot. Moreover, there are glaring omissions in the First Information Report of PW 11 as compared to his evidence before the Trial Court. PW 11 in his cross-examination has stated that he had stated before the police that he had gone to the house of Police Patil but he was not there and that later on he had narrated the incident to the Police Patil but he did not record. These two facts are missing from his earlier statements. He has, in his evidence stated that he had not mentioned in his FIR that there were another 5 to 6 persons apart from the accused in the present case, who were present on the spot and took part in the alleged incident. He had also not stated before that the incident had taken place at Mharki Tambul field. The 12 cri.appeal 142-91 Investigating Officer in his statement has stated that PW 11 had not mentioned anything about the Police Patil and the alleged report to the Police Patil. The Investigating Officer has stated that PW 11 had stated in his statements/ FIR that there were another 5 to 6 persons who took part in the assault and that the incident had occurred at ‘Mharki Tambol’ agricultural field. 16. Apart from this, it may also be noted here that PW 12 had not seen PW 11 on the spot. PW 12 claimed that he had heard shouts of PW 11 and he rushed to the spot. However, he had not seen PW 11 running away from the spot. There was no discussion of the incident between PW 11 and 12 even after return of PW 12 to his house. It therefore, appears that PW 11 and 12 both were not present on the spot of the incident. If the incident had occurred on ‘Thal panand’ and if PW 11 had seen the incident, it was impossible for PW 12 to hear the shouts as it has come in the evidence that the place where PW 12 was present in his filed was about 2½ miles (approximately 3 km.) away from ‘Thal Panand’. The distance of 2½ miles is stated by PW13 who is employee of the PW 12. 13 cri.appeal 142-91 17. If one examines the evidence of PW 12 carefully, it can be seen that PW 12 could not have seen the faces of the assailants. It has come in the cross-examination of the PW 12 in the last paragraph of his evidence that the assailants and PW 12 both were running in same direction after the incident. As such the back side of the assailants was towards PW 12. PW 12 had not seen the assailants while assault was going on at ‘Thal Panand’. What appears from the cross-examination is that PW 12 could not have seen face of even a single assailant. 18. Evaluation of evidence of PW 3 indicates that he is a tutored witness and he has given evidence as per the direction of his employer PW 12. Since, he was accompanying PW 12, it followed that he had also seen the back side of the assailants. 19. Careful examination of evidence of PW Nos.11 and 12 would show that both the witnesses most probably were not present at the spot. They had reached the spot after getting intimation of assault on the deceased and after witnessing the dead body, the matter was reported to the Police. In normal course, PW-12 should have picked up his father in injured condition with the help of three employees who were accompanying him and should have rushed to the hospital. It is 14 cri.appeal 142-91 normally seen that despite knowing that the close relative is dead, one does not miss the chance of rushing to the hospital or calling a doctor immediately. PW Nos.11 and 12 on the contrary were leisurely engaged in Police formalities rather than taking care of the deceased. This indicates that both of them received intimation after the incident was over. Both of them had not seen the assailants. Possibility of implicating appellants in a false case due to the dispute in respect of landed property cannot be disputed. It is admitted position that the deceased had purchased or acquired land belonging to the members of the Backward Community and there was a dispute between the members of Backward Community on one hand and the deceased on the other hand. It is admitted position that the appellants belong to the Backward Community and they were aggrieved persons. As such, though the cause of death is proved, participation of the appellants in the alleged incident is not proved. We have serious doubt about the truthfulness of evidence of PW 11, 12 and 13. In view of our findings in respect of the evidence of PW 11, 12 and 13 it was not necessary to examine other evidence with regard to the seizure of clothes and the C.A. Reports. However, we have given our findings in that regard also in the earlier part of the judgments. It is, thus, abundantly clear that the evidence adduced from the prosecution before the Trial Court lacked the degree 15 cri.appeal 142-91 of certainty required to prove a criminal charge. In our opinion, the appellant nos.2, 3, 6, 7 and 9 are entitled to be acquitted to the charges framed against them. The appellant nos. 1, 4, 5 and 8 are already dead. The appeal filed by them stands abated. We, therefore, pass the following order :- (1)Appellants 2, 3, 6, 7 and 9 are acquitted of the offences punishable under section 147, 148, 302 r/w. 149 of IPC. (2)Their bail bonds shall stand cancelled. (3)The appeal filed by the deceased appellant nos. 1, 4, 5 and 8 stands abated. Appeal accordingly stands disposed of. (M.L. TAHALIYANI, J.) (V.M.KANADE,J.)