1 Criminal Appeal No.316/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.316 OF 1998 Narendra Padamsing Girase, Age 36 years, Occupation Agriculture, R/o Rami, Taluka Shindkheda, District Dhule ... APPELLANT VERSUS The State of Maharashtra, (Copy to be served on the Additional Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri P.B. Patil, Advocate for the appellant Shri V.H. Dighe, A.P.P. for the respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 18th April, 2011. ORAL JUDGMENT : 1. Heard. The appeal was admitted on 9.10.1998. Challenge is to the conviction recorded for an offence under 2 Criminal Appeal No.316/1998 Section 304 Part II of the Indian Penal Code and Section 354 thereof, directing to undergo rigorous imprisonment for four years and three months respectively in Sessions Case No. 40/1994 of learned Sessions Judge at Dhule. 2. The complainant Nilabai (P.W.10) with her husband Baliram were engaged by the accused as agricultural labour and for that purpose, allegedly he carried the couple in a cart to his field with their belongings. Prior to that, the couple i.e. Nilabai and her husband had drinks and then board the cart. In the cart, while they were proceeding, it is alleged that the accused/ appellant misbehaved with complainant Nilabai, hence she retorted with butt of the axe, but it did not yield result in behaviour of accused. Her husband too did not find favour with such outraging behaviour of the accused/ appellant. He sermon the appellant to behave properly, not relenting, a scuffle ensued and allegedly the accused/ appellant hit with the axe to Baliram and he succumbed. 3. The affairs of assault nearby field of the accused was tried to be communicated to the villagers, however, they did not coordinate the complainant. She went to the house of one Sattarsing, however, Sattarsing or his wife for that purpose, it 3 Criminal Appeal No.316/1998 being night, did not join her. She slept in the corridor to wait till morning. Nilabai came to the house of the accused/ appellant asking to point his field, as the field could not be located by her. The accused accompanied them and at the spot, Baliram was found lying dead. Blood had oozed from his nostrills and mouth. The accused/ appellant and complainant came back to village Rami. The accused informed these aspects to the Kotwal Abhiman Koli, who in turn informed the police officer Chavan at Police Station, Dondaicha. A entry was recorded by the police officer in the station diary and the investigation commenced. Spot was verified. Dead body was verified and consequently, statement of Nilabai (P.W.10) was recorded, treated as F.I.R. The inquest, spot panchanama was drawn. Post mortem report on the dead body was drawn by P.W. 11 Dr. Jain. The incriminating articles, the stick, the apparels were sent to the Chemical Analyser for which report at Exhibit 54 was collected, blood group of accused, “B”, matching to the blood group found at several apparels belonging to the deceased as the deceased had also blood group “B”, confirmed at Exhibits 54 and 57. In the C.A. report at Exhibit 54, there is no reference of sending the axe to the office of Chemical Analyser and consequently, nothing to project of any blood stains on the axe though the investigator informed in his evidence of seizure of 4 Criminal Appeal No.316/1998 such blood stained axe. 4. After completion of investigation, charge sheet was filed. The accused did not plead guilty to the charge, claimed to be tried. His defence is of total denial. He even denied that he had engaged services of Nilabai and her husband Baliram, deceased, as an agricultural labour at his field. Taking Nilabai and Baliram with their belongings in the cart was disputed. He disputed the event in the manner or otherwise narrated by P.W. 10 Nilabai. According to him, Nilabai had come to his house in the morning at about 8.00 to 8.30 a.m., informing that her husband was dead, she did not desire to get implicated in the police case, she asked the accused to call for two persons of her community to ensure that her husband is buried in the field. He did not cringe and insisted that he will inform the police, consequently faced the buffet of prosecution. 5. To unfold the prosecution case, 12 witnesses are put in. The matter mostly revolves to the testimony of P.W.10 Nilabai, wife of Baliram, the complainant, the so called sole eye witness. P.W.8 Radha Bhil, P.W.6 Pravin Rajput, did not coordinate the events of complainant approaching them in the night as they turned hostile to the prosecution. P.W.9 5 Criminal Appeal No.316/1998 Sattarsing Rajput was examined to show that during the night Nilabai (P.W.10) had come to his house to narrate the events and plight of her husband and she slept in the terrace/ corridor of the house. He did not support version of P.W.10 in the manner she projected. P.W.5 Bhaidas Jayram Bhil and P.W.7 Abhiman were examined, P.W.5 Bhaidas did not support the prosecution. Narendra Pratap Girase is examined as P.W.1. He is panch to the spot and the inquest, however, did not support the version. P.W.3 Gorakh Mali and P.W.4 Deva Gajmal Patil did not support collecting blood stains or wooden chip from the cart belonging to the accused. P.W.11 Dr. Bhalchandra Jain, as stated earlier, carried post mortem on the dead body of deceased and medically examined the accused. P.W.12 A.P.I. Chavan carried the investigation, established the version of P.W.10 in the F.I.R. and proved portion mark ‘A’ thereof. 6. P.W.10, the prime witness in the matter, in examination-in-chief submits that accused had straight struck assault her husband on throat, mouth with the axe. In the later part of evidence, she, in the cross-examination submits that the accused had killed her husband with the part of the axe used to cut wood i.e. blade. She affirms the same and submits that she is unable to explain why it is not so supported in Exhibit 29, her 6 Criminal Appeal No.316/1998 report. 7. The evidence of P.W.10, if tested with the evidence of P.W.11 Dr. Jain, the medical officer, it blasts the case. The injuries, so called inflicted by the accused upon her husband in the night at around 9.00 to 10.00 p.m. does not match post mortem notes. On examination of the dead body by Dr. Jain (P.W.11), he did not notice any surface injury. On external examination, no injury was seen. On opening of the head meninges covering the brain were congested and discoloured, and there was blood collected on right middle cranial fossa and clotted on cerebral hemsphere. In Column No.13 it is mentioned that there was a bleeding from nostrills and right ear. This injury is connected with right cranial fossa injury. Doctor also noticed that there was consumption of liquor by the deceased soon before his death including digested food. The cause of death was cardio respiratory failure due to haemorrhagic shock due to head injury to right head by hard trauma. The post mortem notes at Exhibit 34 are established by the medical officer. He did not preserve vicera. According to him, the injuries referred above could be caused by hard and blunt object and it could have been caused by the handle of an axe if the blow was forceful. The aforesaid injury is sufficient in the 7 Criminal Appeal No.316/1998 ordinary course of nature to cause death. In the cross- examination, he accepts, if the head injury was caused, the blood oozes from nostrills, mouth and ears. According to him, the cause of death was head injury. He accepts, if a person in a drunken state, and walks in such state with unsteady gaits, if he falls forcefully on a hard substance and if the portion of head comes into contact with such hard substance, the injury of the nature was possible. He also further clarifies that no person, even if not under influence of alcohol, sustains a fall accidentally, and if the portion of his head comes in contact with hard substance forcefully, the head injury of the like nature was possible. 8. P.W.11 accepts that, if a person is hit by means of a blade of an axe on his mouth and throat, then the incised wounds will definitely be caused. The death in this case might have occurred about 2-3 hours after the last meal. If a forceful blow is given on the head with a wooden handle, a fracture of skull may occur or may not occur. 9. The learned Sessions Judge felt that, to his mind, such injury was also possible due to butt of the axe, however, he explains that being a night time, P.W.10 could not be specific to 8 Criminal Appeal No.316/1998 inform whether it was user of a butt of the axe or sharp edge of the blade. This is surmise of the learned Sessions Judge, as P.W.10 was not far away from either the deceased or the appellant in the cart. When she could herself inflict butt blow to the accused/ appellant, when accused was trying to outrage her, it cannot be digested that she did not venture whether such assault by accused/ appellant to her husband could be by butt by blade of axe. Such concession given by the learned Sessions Judge was uncalled for. 10. The conduct of the accused also calls for attention. No sooner Sattarsing or the complainant approached him, he accompanied both to field to notice the dead body. He approached the Police Patil Abhiman Koli (P.W.7) and urged him to inform the police officer. He was interrogated even by the police officer. The narration of P.W.10 in the F.I.R. though claimed to be her, it was dictated by P.W.12 Police Officer to his writer. This event has added spices to her version to ensure implication of the accused/ appellant in the manner the investigator desired as even at the time of said F.I.R., glaring loops could have been noticed by the investigator. 11. The conduct of the complainant also calls for 9 Criminal Appeal No.316/1998 consideration. She surmised that, after assault on her husband, she went to the locality Bhilati from there she went to the house of Sattarsing and slept at the corridor of house. Next morning, she went to the accused and asked him to accompany to point the spot. She did not inform these events in the long drawn period of 8-10 hours to nearby police. This blasts her version of involvement of the accused. It may be, at the instance of disgruntled elements to ensure their scores are settled, he has been falsely implicated. 12. It is settled position of law that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution and it would be difficult to convict the accused/ appellant based on such evidence. If the evidence of the prosecution witness is totally inconsistent with the ordinary evidence, this amounts to fundamental defect in the prosecution case and unless this inconsistency is reasonably explained, it would add to discredit the evidence of the prosecution and its benefit will certainly flow to the accused/ appellant. Revisiting evidence of P.W.10 and P.W.11 coupled with hostility shown to the prosecution by Sattarsing, P.W.8 Raghav adds to the miseries and an impression is generated that the accused is falsely roped in the 10 Criminal Appeal No.316/1998 matter. The death of Baliram is certain, but it more leans to an accidental death owing to fall being in a drunken condition. The prosecution tried to dismantle the plea that the deceased was in a drunken state of affair. Post mortem notes suggest the same. 13. In the result, the conviction recorded by the learned Sessions Judge, Dhule referred above requires interference. It is set aside. Appeal is allowed. The accused/ appellant is acquitted. Fine amount, if any, deposited, be refunded after three months. K.U. CHANDIWAL JUDGE