1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 184 OF 2008 Sidarth Kacharu Salve, Age 27 yrs., Occu. Agriculture, R/o. Sakharwadi, Tq. Badnapur, Dist. Jalna. ....Appellant. Versus State of Maharashtra ....Respondent. Shri. Joydeep Chatterji, Advocate for the appellant. Shri. S.V. Kurundkar, Advocate for the respondent. CORAM : P.V. HARDAS AND R.K. DESHPANDE, JJ. DATE : 14th December, 2009 ORAL JUDGMENT : [ Per P.V. HARDAS, J.] 1. The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, to suffer further rigorous imprisonment for two months, by the Additional Sessions Judge, Jalna, by judgment dated 17.5.2008 in Sessions Case No. 149/2007, by this appeal questions the correctness of his conviction and sentence. 2. Such all the facts as are necessary for the decision of this appeal 2 may briefly be stated thus :- P.W. 1 Vijaysingh Bahure, Head Constable attached to Police Station Badnapur, was asked by the P.S.O. to go to village Sakharwadi as a complaint had been received against the appellant. P.W. 1 Vijaysing Bahure went to village Sakharwadi and reached the village at about 7.15 p.m. They searched for appellant/accused and also P.W. 2 Vaishali. They accordingly arrested the accused and they noticed Vaishali, keeping the dead body of her one and half year old son Bhayya on her laps and weeping. Accordingly, the appellant, P.W. 2 Vaishali and dead body of Bhayya were brought to the police station. P.W. 1 Vijaysingh accordingly lodged his first information report at Exh. 19, on the basis of which an offence punishable under section 302 of the Indian Penal Code came to be registered vide Crime No. 127/2007. Investigation of the said crime, therefore, came to be entrusted to P. W. 7 P. I. Anil Sanap. He accordingly, drew the enquest panchanama of dead body, Exh. 11, in presence of the panch witnesses. The scene of offence panchanama, Exh. 23, came to be drawn in presence of P.W. 4 Kundlik. The dead body had been referred for post mortem examination and post mortem of the deceased came to be conducted by medical officer attached to the Rural Hospital at Badnapur. Cause of death was found as due to intra carnial hemorrhage secondary to multiple fracture to skull bone due to head injury. In column No. 18 of the post mortem report, on palpation - depressed fracture of skull vault was noted. In column No. 19, multiple fractures 3 under the skull vault have been noted. The post mortem report came to be admitted by the accused in response to notice under section 294 of the Code of Criminal Procedure and the post mortem report is at Exh. 15. Thereafter, statements of witnesses came to be recorded. The clothes of deceased came to be seized under panchanama at Exh. 35 in presence of witnesses. The clothes of the accused also came to be seized under panchanama at Exh. 36. The Circle Inspector, by letter at Exh. 37, was requested to draw the sketch of scene of offence. The Revenue Circle Inspector accordingly, drew the sketch of the scene of offence at Exh. 38. After completion of investigation, charge-sheet against the appellant/accused came to be submitted. 3. On committal of the case to Court of Sessions, the trial Court vide Exh. 6 framed charge against the appellant for the offence punishable under section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 10 witnesses. P.W. 2 Vaishali, the mother of deceased Bhayya, P.W. 3 Varsha, cousin of deceased Bhayya and P.W. 5 Raju did not support the prosecution and were declared hostile. The conviction came to be based on the testimonies of P.W. 8 Raju, P.W. 9 Ram and P.W. 10 Janardhan. The defence of the appellant/accused is that P. W. Nos. 8, 9 and 10 were quarreling with him and in the quarrel, his son Bhayya, who was at his waist, fell down on the road and sustained injuries. The trial Court repelled the defence and convicted and sentenced the appellant 4 as aforesaid. 4. Before we advert to the submissions of the learned counsel for the appellant and Shri. Kurundkar, the learned A.P.P. for State, it would be useful to refer to the evidence of eye witnesses. P.W. 2 Vaishali, the mother of deceased Bhayya, did not support the prosecution and was declared hostile. She was confronted with portion marks "A, B and C" from her previous statement, which she denied to have stated. In the cross examination on behalf of the accused, she has admitted that P.W. 8 Raju had confined her in a room so that she could not disclose the fact about the incident that child Bhayya had fallen on the road from the waist of the appellant. She has admitted, as true that these three witnesses had conspired for lodging a false case against the appellant. P. W. 3 Varsha, cousin of deceased Bhayya, also did not support the prosecution and was declared hostile. She was confronted with portion marks "A and B" from her statement which she declined to have stated. P.W. 5 Raju also did not support prosecution and was declared hostile and was contradicted with portion mark "A" which he declined to have stated. In cross examination, he has admitted that since he was not resident of village Sakharwadi, he did not know the names of the persons/residents of village Sakharwadi. 5. P.W. 8 Raju claims to be eye witness to the incident. However, in his examination in chief itself, he states that when he had come out of 5 the house, the accused was seen with his kid at his waist. He states that he learnt that the accused had killed his son by dashing him on the road. He states that when he had returned home, the accused was abusing villagers under the influence of liquor and was pelting stones at the villagers. He states that he thereafter returned to village Dabhadi. The evidence of this witness clearly indicates that when he came out of his house on hearing some noise, he had seen the child of the accused on his waist. He does not state that he had actually witnessed the incident of the accused dashing his son on the road. He states that when he had returned home, the accused was abusing villagers under the influence of liquor. This witness, therefore, cannot be said to be an eye witness to the incident and in fact he destroys the prosecution case to which we shall advert shortly. 6. P.W. 9 Ramu, father of P.W. 8 Raju, states that on the date of incident the accused had consumed liquor and had quarreled with his wife. The accused, thereafter, snatched the boy Bhayya from his wife and had dashed him forcefully on the road, resulting in the death of the child. He states that thereafter, he had returned to village Dabhadi. In cross examination, he has admitted that Raju is his son. He also admitted that his son, P.W. 8 Raju, returned from field at about 5.30 p.m. He states that he was present at the house and after hearing shouts, he along with his son came out of the house. He then states that he was in the house and P.W. 8 Raju had gone out of the house. Curiously, P.W. 8 6 Raju, son of P.W. 9 Ramu, does not refer to the presence of P.W. 9 Ramu at the scene of offence or that P.W. 9 Ramu came out of the house along with P.W. 8 Raju. Apart from that P.W. 9 Ramu in no uncertain terms states that he remained in the house while his son Raju had gone outside the house. P.W. 9 Ramu claimed to have witnessed the incident and therefore, according to us, no reliance at all can be placed on the testimony of P.W. 9 Ramu that he had witnessed the actual incident of the accused dashing his son on the road. The prosecution has further examined P.W. 10 Janardhan. P.W. 10 Janardhan states that he was returning from his field on the date of incident and had noticed the accused creating a scene under the influence of liquor. He states that the way to his house is from the side of the house of the accused. He further states that the accused lifted the child and had dashed him forcefully on the road and thereby killed him. He states that thereafter, he had gone to village Dabhadi. In cross examination, he has admitted that P.W. 9 Ramu is related to him. He further admits that P.W. 8 Raju and P.W. 9 Ramu had reached the spot and there was exchange of abuses between him and the accused. In cross examination, a suggestion was put to him which he denied by stating that he had not stated in his previous statement that after he had returned from village Dabhadi, he had learnt that the accused had killed his son Bhayya. Unfortunately, this portion from his previous statement was not put to the witness and consequently, no contradiction came to be marked and consequently also the Investigating Officer was not questioned about this statement in the 7 previous statement of this witness. Further perusal of the evidence of P.W. 10 Janardhan indicates that he shows the presence of P.W. 8 Raju and P.W. 9 Ramu at the scene of the offence. Neither P.W. 8 Raju nor P.W. 9 Ramu refer to the presence of P.W. 10 Janardhan. In fact, P.W. 9 Ramu categorically states that he had not come out of the house. Apart from this, the Investigating Officer i.e. P. W. 7 P. I. Anil Sanap has admitted in the cross examination as "during investigation it was transpired that P.W. 10 Janardhan was not present on the spot at the time of incident". 7. Thus, from the perusal of the evidence of so called eye witnesses, according to us, none of the eye witnesses namely P.W. 8 Raju, P.W. 9 Ramu and P.W. 10 Janardhan had witnessed the incident. The accused has taken a defence that his son Bhayya, who was at his waist, had fallen on the road during the scuffle. We need not examine probabilities of the defence of the accused in the light of the fact that the prosecution has not been able to establish the offence against the accused beyond reasonable doubt. There is no iota of evidence against the accused that it was the accused, who had forcefully dashed his son on the road under the influence of liquor. There is nothing to indicate that what the accused says is highly improbable. The appellant accused, therefore, according to us, is entitled to get the benefit of doubt. 8. Accordingly, this criminal appeal is allowed. The conviction and sentence of the appellant for the offence punishable under section 302 8 of the Indian Penal Code is hereby quashed and set aside and the appellant 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. [ R.K. DESHPANDE, J. ] [ P.V. HARDAS, J.] ssc/cria184.08