drp {1} Cri. Appeal No.284/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.284 OF 2009 Subhash s/o Mohan Pawar APPELLANT Age-27 years, Occ-Labour R/o Old Kautha, Tq & Dist-Nanded VERSUS The State of Maharashtra RESPONDENT ....... Mr.Satej S.Jadhav h/f Mrs.S.S.Jadhav, Advocate for appellant Mr.N.H.Borade, APP for respondent State ....... WITH CRIMINAL APPEAL NO.571 OF 2009 State of Maharashtra APPELLANT Through Police Station Itwara Nanded, Tq & Dist-Nanded VERSUS 1. Subhash Mohan Pawar RESPONDENTS Age-27 years, Occ-Labour R/o Old Kautha, Tq & Dist-Nanded (DELETED) 2. Ravindrasingh Kishansingh Rathod Age-19 years, Occ-Labour drp {2} Cri. Appeal No.284/2009 R/o Naginaghat, Nanded 3. Kailash Jagdish Bidhaniya Age-22 years, Occ-Labour R/o Old Kautha, Tq & Dist-Nanded ....... Mr.N.H.Borade, APP for appellant State Mrs.R.R.Mane, Advocate for respondents No.2 and 3 (Appointed) ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 19th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Appellant in Criminal Appeal No.284/2009 has questioned his conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.2000/-, in default, to suffer RI for 6 months, awarded by Additional Sessions Judge-2, Nanded in Sessions Case No.116/2007 vide judgment and order dated 02.04.2009. Whereas, the State has questioned the correctness of acquittal of original accused No.2 and 3 by the same judgment, by filing Criminal Appeal No.571/2009. As both these appeals arise out of the same judgment, they are being disposed of by this common judgment. 2. Such of the facts, as are necessary for the decision of both these appeals, may briefly be stated thus - drp {3} Cri. Appeal No.284/2009 a) Police Station Officer, Itwara Police Station, Nanded Vitthal Bhingardeo (PW-14) on the basis of complaint (Exhibit-46), lodged by PW-4 Dnyaneshwar, had registered an offence at Crime No.41/2007 against the accused persons. b) Investigation of the said crime was entrusted to Police Inspector Ramchandra (PW-17), who drew Spot Panchanama (Exhibit-44) and collected one dagger, one bicycle, blood mixed soil and plain soil from the spot. Thereafter, Inquest Panchanama (Exhibit-42) was drawn on the dead body of Vitthal, which was identified by (PW-4) complainant Dnyaneshwar-brother of the deceased. Thereafter, the body was sent for Postmortem to civil hospital Nanded. c) Dr.Nandkumar Patil (PW-13) conducted the postmortem on the dead body of deceased on 03.04.2007. While conducting the autopsy, the following external injuries were noticed- 1. Abrasion 1 cm x 1 cm on right maxilla below eyelid. 2. Stab wound 3 cm x ½ cm elliptical injury on right chest ½ inch lateral at 5th and 6th intercostal space with 6th rib cut down, vertical oblique and upward direction to left side. 3. Stab wound 3 cm x ½ cm elliptical injury on left side chest 3 cm left to 2nd injury vertical oblique and upward to lateral drp {4} Cri. Appeal No.284/2009 side direction. 4. Stab injury 3 x 1 ½ cm elliptical injury oblique 7 cm lateral to 3rd injury on 9th inter costal space region, oblique to lateral side direction. 5. Stab wound 3 cm x 1 ½ cm on left side of abdomen at mid axillary line 8 cm above from iliac chest, vertical, intestine loops come out, elliptical injury. 6. Incise wound 2 cm x ½ cm x muscle deep on right index finger, end light transverse on plummer side. 7. Incise wound 2 cm x ½ cm 3 muscle deep on 2nd digit, transverse, on plummer side of right middle finger. According to the medical officer, all the above mentioned injuries, found on the person of deceased Vitthal, were antemortem. On internal examination of the dead body, 2 litter blood was found in left pleural cavity, pleura was open below stab wound. Left lung was punctured, which was corresponding to external injury No.4. Right atrium was punctured which was corresponding to external injury No.2. Right vertical was punctured at lower side, corresponding to external injury No.3. One litter blood was found in abdomen cavity. Small intestine loop lower part of illium was punctured, corresponding to external injury No.5. The Bladder was empty. According to the medical officer, probable cause of death is hemorrhagic shock due to multiple stab injuries to vital organs. According to the medical officer, the injuries found on the person of the deceased are drp {5} Cri. Appeal No.284/2009 sufficient to cause death in ordinary course. Accordingly, Postmortem report (Exhibit-66) was prepared. It was further opined by the medical officer that external injuries No.6 and 7 can be possible due to dagger (Article-15). The medical officer had collected blood sample of the deceased, which was sent to Chemical Analyzer for examination. d) During the further investigation, statements of some more witnesses were recorded on 03.04.2007. One motorcycle, which was allegedly used for commission of offence, which was abandoned, was seized under Seizure Panchanama (Exhibit-40). On 03.04.2007, appellant Subhash and accused Ravindra were put under arrest vide arrest Panchanama (Exhibit-74 and Exhibit-75) and clothes on their persons were seized vide seizure Panchanama (Exhibit-77). On 04.04.2007, accused Kailash was put under arrest vide arrest Panchanama (Exhibit-76) and clothes on his person were seized under seizure Panchanama (Exhibit-78). e) While in custody, on 06.04.2007, appellant Subhash had made a voluntary disclosure statement (Exhibit-53), which lead to the discovery of knife (Article-15) from river bed, which was seized under seizure Panchanama (Exhibit-54). On 09.04.2007, the seized property was sent to Chemical Analyzer for examination, along with requisition letter (Exhibit-72). In due course CA reports (Exhibit-79 and Exhibit-80) were received. Statements of some more witnesses were recorded and it was revealed that one drp {6} Cri. Appeal No.284/2009 Narayan Nikam had also lodged a complaint against the accused persons, at Nanded Rural Police Station. On completion of investigation, charge sheet was filed against all the accused persons, before the JMFC, Nanded. f) On committal of the case to the Court of Sessions, Ad Hoc Additional Sessions Judge-2 Nanded framed Charge (Exhibit-12) against all the accused persons for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. The accused pleaded their innocence and claimed to be tried. Prosecution, to prove the charges levelled against the accused, had examined in all 17 witnesses. Defence of the accused was of total denial. On appreciation of the evidence, the trial court convicted appellant Subhash for an offence punishable u/s 302 of the Indian Penal Code whereas acquitted original accused No.2 Ravindrasingh and original accused No.3 Kailash of the offence. Correctness of conviction is challenged by appellant Subhash while correctness of acquittal of original accused No.2 and 3 is challenged by the State in these two appeals. 3. For better appreciation of the rival submissions, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. PW-4, Dnyaneshwar-brother of the deceased Vitthal, has stated in his evidence that on 01.04.2007, Narayan Nikam and drp {7} Cri. Appeal No.284/2009 one guest had been to their house. In the afternoon when they were returning from river Godavari, appellant Subhash had snatched mobile handset and cash in the sum of Rs.1782/- from said Narayan. When Narayan had questioned appellant Subhash, all the accused and one Mithun had threatened him. Thereafter, Narayan had lodged a report of the said incident in Nanded Rural police station. PW-8 Tukaram had accompanied Narayan at the time of lodging of the offence. While PW-8 Tukaram was returning after sending Narayan to another village, all the accused and their friends had threatened him on account of lodging of the report of snatching of mobile and cash. Tukaram had disclosed this fact in presence of Vitthal (deceased). When Vitthal had questioned the accused, in the evening, about the snatching of the mobile and cash, the accused had threatened him that they would see him (rqyk c?kwu ?ksow). In turn, Vitthal had disclosed the same to him. In respect of the incident dated 03.04.2007, he has stated that, in the morning Vitthal had proceeded to Nanded on his bicycle with milk Can and he had followed him. When he reached at Kavtha cross road, he stopped at a Pan stall at that time he saw that the accused were proceeding towards Nanded on a motorcycle, which was driven by appellant Subhash. He noticed that the number of the said motor cycle was 9955. One Namu had informed him that some persons had assaulted Vitthal with a dagger and Vitthal was lying near Mondha. On receipt of this information, he felt giddiness and after some time, he went to Mondha with one Gajanan where some milkmen informed him that the accused, who had came on drp {8} Cri. Appeal No.284/2009 motorcycle, had assaulted Vitthal and thereafter they ran away. Somebody had shifted Vitthal to civil hospital, where he was declared to be dead. Thereafter, he went to Itwara police station and lodged the report (Exhibit-46). 5. In the cross examination, he has stated that Namu is neither his relative nor was he resident of his village. Gajanan is his relative and from the same family. The spot, where the incident has taken place, is at a distance of about 1 km from the Pan stall. He reached at the spot within 5 to 6 minutes, thereafter in civil hospital and ultimately to Itwara police station. Omission is proved in his cross examination that he had not named accused Ravindra in the complaint. He denied that appellant Subhash had no motorcycle. He has admitted that he had no knowledge against whom the complaint was lodged by Narayan in respect of the incident dated 01.04.2007. He has admitted that the milkmen, present at the spot on 03.04.2007, had informed him that Vitthal was shifted to hospital and no other talk took place with them. He has also admitted that other than blood stains, nothing was noticed at the spot. He has also admitted that nobody from his village was present in the civil hospital. He denied that meeting was held at Kavatha where it was decided to implicate the accused in the said crime. 6. It is urged on behalf of the appellant that when the complaint was lodged, as alleged by this witness, he was not aware drp {9} Cri. Appeal No.284/2009 as to who were the assailants, then to name the accused as assailants in the complaint itself is doubtful. 7. It is in the evidence of PW-8 Tukaram that he came to know about the incident dated 01.04.2007 from Narayan. He has further stated that he had accompanied Narayan to lodge the report in Nanded Rural Police Station. Thereafter, Narayan was sent back to his village. On his way back, he was intercepted by appellant Subhash and accused Kailash and they threatened him to withdraw the complaint lodged by Narayan. After he returned to his home, he informed this fact to Vitthal. In the night, he and Vitthal had approached the accused to enquire about the threats extended by them, at that time, appellant Subhash had threatened Vitthal that he would see him and kill him (rq>h eLrh ftjorks rqyk [kre djrks). He has admitted that the police has not recorded his statement in the complaint lodged by Narayan. He has not lodged any complaint about the threats extended to him by the accused. He has admitted that he had not accompanied Narayan, when Narayan had lodged report in the police station. He has also admitted that he had not talked with his brother about the incident which took place with Narayan, so also he had not taken his brother to Kavtha cross road. He has admitted that on that day Narayan had been to his house, Narayan had not visited the house of his brother neither Vitthal had visited his house during the stay of Narayan. He has denied that he had lodged report against the accused. drp {10} Cri. Appeal No.284/2009 8. PW-5, Satwaji, is the star witness of the prosecution, so far as incident dated 03.04.2007 is concerned. He has stated in his evidence that he is doing the business of milk selling at old Mondha, Nanded. The incident took place on 03.04.2007 at about 7.00 a.m. Three persons came on a motorcycle from new bridge while one person came from Mondha side towards one milkman. The milkman was Vitthal. Two persons, who had came on motorcycle, had caught Vitthal while the third, appellant Subhash, inflicted knife blows on Vitthal on his chest and ribs. Vitthal had fallen down, thereafter the assailants had fled from the spot. The persons, who were present at the spot, had shifted Vitthal to hospital. Some blood, cover of knife, milk cans and bicycle of Vitthal remained at the spot. After some time, brother of Vitthal had came at the spot, to whom he informed about the incident. In his cross examination, he has stated that at the time of incident, there was traffic on the road and the spot is surrounded by shops, which were yet to open. He had witnessed the incident from the distance of about 5 to 7 feet. The incident of assault occurred within fraction of minutes. The assailants came on motorcycle, the motorcycle was stopped, assailants assaulted Vitthal and then fled away, no talk had taken place during the incident between Vitthal and the assailants. He was unable to describe the assailants. He had not raised any alarm for help. According to him, he disclosed the incident to the brother of deceased only. He, in his police statement, has not stated that he had disclosed the incident to the drp {11} Cri. Appeal No.284/2009 brother of the deceased. Further omission is proved that he has not stated in the statement before police that appellant Subhash had inflicted knife blows on the person of the deceased. He has categorically admitted that he is relative of the deceased. He has also admitted that he had not informed the incident or discussed about the same with Dnyaneshwar, Gajanan or Namu. He has also admitted that he has not taken Vitthal to hospital or accompanied him to the hospital, however later on he went to hospital when the dead body was taken to village for cremation. On that day, at about 2.30 p.m. he went to police station to give his statement. 9. Other than the evidence of these witnesses, Panch witness (PW-3) has proved the spot Panchanama. Recitals of the Panchanama do not disclose that any milk was found spread on the road near the spot. Prosecution also attempted to prove recovery of knife (Article-15), recovered at the instance of appellant Subhash, through PW-6. 10. We have heard learned counsel for the appellant, learned APP for State and learned counsel appointed on behalf of respondent-accused. 11. Mr.Jadhav, learned counsel for appellant Subhash, has urged that the entire prosecution case rests on the evidence of PW-5 Satwaji, whose evidence is not reliable for the simple reason that he has admitted, in no uncertain terms, that he had not drp {12} Cri. Appeal No.284/2009 informed the incident to complainant Dnyaneshwar, Namu or Gajanan, which is contrary to the natural human conduct. Our attention is also drawn by the learned counsel for appellant Subhash towards the evidence of complainant Dnyaneshwar that he has not whispered in his substantive evidence that when he reached at the spot, PW-5 Satwaji was present there. On the contrary, according to Dnyaneshwar, he came to know about the incident from one Namu. Our attention is also drawn to the fact that admittedly said Namu is not examined by the prosecution before the trial court. Learned counsel for appellant Subhash has also asserted that PW-5 Satwaji is relative of the deceased and hence he is interested witnesses. It is also contended that apart from it, omission is proved in the evidence of PW-5 Satwaji that he has not stated in the statement before police that appellant Subhash had inflicted knife blows on the deceased. Further omission is brought to our notice that PW-5 had not disclosed the incident to Dnyaneshwar. Learned counsel for the appellant Subhash further asserted that conduct of PW-5 appears to be unnatural, for, though he is relative of the deceased, yet he had not shifted him in the hospital. Thus, according to learned counsel for appellant Subhash, all these aspects indicate that PW-5 Satwaji was not present at the spot and he is a got up witness and hence his evidence cannot be relied upon. 12. Learned counsel for the appellant further urged that from the evidence of PW-13 Dr.Patil, it is clear that the time of drp {13} Cri. Appeal No.284/2009 death of Vitthal cannot be determined, so also the injuries found on the person of the deceased are independent injuries coupled with the fact that recovery of clothes on the person of the deceased is not proved. Therefore, it is urged to allow the appeal against conviction and acquit appellant Subhash 13. Learned APP, appearing on behalf of the State, has urged that the evidence of PW-5 is reliable and CA report (Exhibit-79) clearly indicates that blood found on the clothes of the deceased and accused is of the same group and the blood found on the knife was human blood and hence the appellant is rightly convicted and sentenced by the trial court, which need not be interfered by this Court and thus, requested for dismissal of the appeal against conviction. 14. Considering the evidence on record and the rival submissions, according to us, the evidence of PW-5 Satwaji does not inspire confidence and as such not reliable and, therefore, evidence of PW-5 Satwaji requires to be discarded. So far as recovery of clothes of appellant Subhash is concerned, the same is not proved, as the recovery Panchanama has not supported the prosecution case. Even the evidence of IO does not whisper that after recovery of clothes, they were properly sealed and packed and were handed over to CA for chemical examination, in the same condition. Similar is the case with the knife. Seizure Panchanama regarding knife and clothes are silent on the point of sealing of the drp {14} Cri. Appeal No.284/2009 said articles. Apart from it, CA report, (Exhibit-80), indicates that the blood group of appellant Subhash is “A” and that of accused Kailash is “O” and the blood found on the clothes of the deceased as well on the clothes of accused Kailash was of “A” group. In view of this, the CA report is not helpful to the prosecution to link any of the accused with the alleged offence. Ultimately, careful perusal of the evidence of Complainant Dnyaneshwar, indicates that neither he was aware about the names of the assailants at the spot nor at the hospital he was informed by anybody the names of the assailants, then how he has named the accused in the complaint, in absence of any specific knowledge. All these aspects are sufficient to draw an inference that the prosecution has failed to prove the charge against the accused persons, beyond reasonable doubt. In the premise, appellant Subhash is entitled for benefit of doubt, which we accordingly, grant him. Therefore, the appeal against conviction ought to succeed. 15. While arguing the appeal against acquittal, learned APP vehemently urged that the evidence on record, against accused Ravindra and accused Kailash is not properly appreciated by the trial court while acquitting them. Therefore, learned APP requested to allow the appeal against acquittal. 16. Per contra, Mrs.Mane, learned counsel appointed on behalf of respondent-accused, urged that name of accused Ravindra is not reflected in the complaint. It is further urged that drp {15} Cri. Appeal No.284/2009 the entire prosecution case rests on the evidence of PW-5 Satwaji and the evidence of PW-5 Satwaji is not reliable and if the evidence of PW-5 Satwaji is discarded, there is nothing on record to show the involvement of the respondent accused in the present offence. Moreover, even PW-5 Satwaji has not attributed any specific role to respondent-accused nor has he identified these accused nor any identification parade was ever arranged. 17. In the light of these submissions, once again we have gone through the impugned judgment and we do not find any perversity in the reasoning of the trial court while acquitting respondent-accused. According to us, the view taken by the trial court while acquitting the respondent-accused, is a possible view to be taken on the basis of evidence on record. Apart from it, we have already concluded, in above paragraphs, that the evidence of PW-5 Satwaji cannot be relied upon. In this view of the matter, there are no merits in the appeal preferred by the State challenging the acquittal of the respondent-accused and hence the appeal against acquittal ought to fail. 18. Consequently, Criminal Appeal No.284/2009 is allowed and the conviction and sentence of the appellant 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. drp {16} Cri. Appeal No.284/2009 19. Criminal Appeal No.571/2009 is dismissed, confirming the acquittal of the respondents and their bail bonds stand cancelled. Fees, payable to Mrs.R.R.Mane, learned counsel appointed on behalf of respondents No.2 and 3, quantified at Rs. 5000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel284-09