1 cr-apeal-626-04 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 626 OF 2004 1. Ankush Shankar Kale, Age 50 years ] Resident of Umrad, Taluka Karmala ] (at present in Yerawada Jail) ] ] 2. Dhananjay Vasant Kale ] Resident of Hiware, Tal. Karmala ] (at present in Dhule District Jail ) ]..Appellants [Ori. Accused 1 and 2] Vs. The State of Maharashtra ] Through A.P.P. High Court, Mumbai ]..Respondent .... Mr. D.G.Khamkar Advocate with Mr. D.J.Deshmukh Advocate for Appellants Mr. K.V. Saste A.P.P. for the State .... CORAM : P.V.HARDAS AND M.N.GILANI, JJ. DATED : MAY 02, 2011 2 cr-apeal-626-04 ORAL JUDGMENT [PER P.V.HARDAS, J.]: 1 The appellants who stand convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 2000/- each in default of which to undergo further R.I. for six months, by the 1st Ad-hoc Additional Sessions Judge, Solapur by judgment dated 24th March, 2004, in Sessions Case No. 306 of 2003, by this appeal questioned the correctness of their conviction and sentence. 2 Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W. 7 Mohan Vidhate, Police Inspector who was attached to Karmala Police Station as Police Inspector on 8.3.2003 recorded the complaint of P.W.3 Thoya Kale at Jeur outpost. The aforesaid complaint was forwarded to the police station for registration of the offence and accordingly offence vide Crime No. 102 of 2003 was registered against the accused for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The investigation of the said crime came to be entrusted to P.W. 7 Police Inspector Vidhate on 9.7.2003 at about 00.30 a.m. past midnight. Accordingly an inquest panchnama came to 3 cr-apeal-626-04 be drawn in the presence of P.W.1 Sarang Dhumal and another panch at Exh. 11. In the morning at about 9 a.m. the scene of the offence panchnama came to be drawn in presence of two witnesses at Exh. 20. From the scene of offence, one stone which was stained with blood, one white colour cap, ordinary mud and mud mixed with blood were seized under the said panchnama. The scene of the offence was beneath a railway bridge which was at a distance of about approximately 3 to 4 kms. away from the place of the residence of P.W.3 Thoya. The statements of witnesses came to be recorded and the seized property came to be forwarded to the Chemical Analyzer through police constable P.W.2 Satish Inde for examination. The reports of the Chemical Analyzer are at Exhs. 30, 31 and 33. Postmortem on the dead body of deceased Gandya Kale came to be performed by P.W. 6 Dr. Khot. Dr. Khot noticed following external injuries: 1) CLW 3” x 2” upto bone deep on right side of forehead at obliquely. 2) CLW 1” x 1/2” x 1/2” on below left eye 3) Incised injury 3” x 1” x 1/2” on front of left elbow joint. 4) CLW 2” x ½” x2” on left wrist joint. 5) CLW 1/2” x 1/4” x 1/4” on left palmer aspect of hand. 6) Fracture of right middle finger at apex. 7) Incised injury 1” x 1/4” x 1/2” on left side of abdomen. 4 cr-apeal-626-04 8) CLW 3” x 2” x 1” on right side and below ribs. 9) Contusion blue and abrasion mark on right knee joint. 10)Contusion on right thigh, size 1” diam. On external examination, Doctor noticed the following injuries: 1) Fracture size 2” x 1” on right temporal bone. 2) Membrane lacerated, haemorrhage on right side of forehead. 3) Haemorrhage 1” dia. on right temporal brain, red coloured, brain congested. Rig Mortis was well marked in whole body and there was presence of postmortem lividity on liver back. 3 P.W. 6 Dr. Khot therefore opined that cause of death was due to shock and haemorrhage due to fracture of skull and head injury. The postmortem report is at Exh. 25. The advance death certificate is at Exh. 26. Further to the completion of the investigation a charge sheet came to be filed against the two appellants. The other two accused were absconding and therefore they came to be arrested subsequently. One of the accused was arrested and was put on trial. The trial Court had acquitted the absconding accused on the ground that the eye witnesses viz. P.W. 3 Thoya and P.W. 5 Rakhi wife of the deceased Gandya did not support the prosecution and were declared hostile. Similarly, in the trial of 5 cr-apeal-626-04 the other accused also these two witnesses did not support the prosecution. With the result that out of the four accused named in the F.I.R. two stand acquitted while the present two appellants stand convicted. 4 The trial Court vide Exh. 3 framed charge against the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Prosecution in support of its case examined eight witnesses. The trial Court upon appreciating the evidence of the prosecution witnesses convicted and sentenced the appellants as afore stated. 5 In order to effectively deal with the submissions advanced before us by the learned Counsel for the appellants and the learned A.P.P. it could be useful to refer to the evidence of the prosecution witnesses. The entire prosecution case revolves around the testimony of P.W. 3 Thoya, P.W. 5 Rakhi and P.W. 8 Subhash who are said to be the eye witnesses. 6 P.W. 3 Thoya, father of deceased Gandya states that they are Pardhis residing in the village and Gandya who was his son, used to do labour work and whenever labour work was not available, he used to take 6 cr-apeal-626-04 a cow and sheep for grazing. Thoya further states that he along with the other womenfolk in his family also used to go to labour work. He states that he has seven daughters and it appears that out of seven daughters, two daughters have been married. P.W.3 Thoya further states that deceased Gandya used to go for grazing at about 8 a.m. in the morning and used to return home at about 1 p.m. for taking his lunch and thereafter he used to go again and return back at about 3 O'clock. In respect of the incident, he states that on the day of the incident, deceased Gandya had left the house at about 8 a.m. along with one cow and sheep. Since the cow and sheep alone returned back at about 3 to 3.30 p.m. Thoya along with his daughter in law P.W. 5 Rakhi went in search of Gandya. He states that they had gone upto the railway bridge and had noticed the accused along with other two absconding accused assaulting the deceased Gandya. P.W.3 Thoya states that he had requested the accused not to assault deceased Gandya but the accused did not listen. After Gandya fell on the ground, the accused fled away from the scene. Thoya states that they descended to the scene of the incident and he requested P.W.3 Rakhi to wait for the other family members and he went for bringing his relatives and thereafter had gone to the police station for lodging his report. Similar is the evidence of P.W. 3 Rakhi. 7 At the outset, we may state that we find it incredulous that the 7 cr-apeal-626-04 assault would continue for such a long period as it would enable the witnesses to reach from their house to the scene of the incident which was at a distance of about 3 to 4 kms. Moreover, if Gandya had been alive, the cattle would not have strayed and would not have gone home. The fact that suspicion of Thoya was aroused because cattle had returned alone, would clearly indicate that deceased Gandya had already met his death before either P.W. 3 or P.W. 5 rushed to the scene of the offence. 8 In any event, evidence of P.W. 8 Subhash clearly falsifies the evidence of P.W. 3 Thoya and P.W. 5 Rakhi. P.W. 8 Subhash states that on the day of the incident he had gone for selling fish and while he was returning, he noticed beneath bridge one Pardhi boy was being assaulted by the other Pardhis. P.W. 8 Subhash has clearly admitted that accused were not acquainted with him. P.W. 8 Subhash has also not identified the accused in his evidence before the Court. He further states that on way, he had met Thoya and P.W. 5 Rakhi and had informed them about the incident. At that time, he was at a distance of about 3 to 4 kms. from the scene of the incident. This would clearly indicate that the assault was already over by the time P.W. 3 Thoya and P.W. 5 Rakhi rushed to the scene of the incident. Evidence of P.W. 8 Subhash is not helpful to the prosecution at all as he has not identified any of the accused as the assailants. It is obvious to us that P.W.3 Thoya has named the accused 8 cr-apeal-626-04 out of suspicion. He claims that the son of the appellant no.1 had died on account of a dog bite and appellants had suspected that P.W.3 Thoya was instrumental in his son's not disclosing about the dog bite to anyone. Thoya further states that the appellants had demanded compensation and had also threatened to him that in the event compensation was not paid to the appellants, the appellants would cause harm to P.W.3 Thoya. P.W.3 Thoya in his cross-examination has admitted that he had not informed the police about the incident. Moreover, he has admitted that the assault lasted for about 2 to 3 hours and we find it highly incredible that assault would continue for 2 to 3 hours and that the witnesses would get opportunity of seeing the incident. Moreover, omission has been proved from the evidence of P.W. 8 Subhash that he had not stated in his previous statement that he had met P.W.3 Thoya and P.W. 5 Rakhi on his way to the village and had informed them about the incident. 9 As pointed out by us above, the other two absconding accused came to be acquitted in the present case because P.W.3 Thoya and P.W. 5 Rakhi had turned hostile as they had not supported the prosecution case. We thus find upon overall appreciation of the evidence of three eye witnesses that the evidence of the witnesses does not inspire confidence of the Court for its acceptance. 9 cr-apeal-626-04 10 Criminal Appeal is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if any, paid by the appellants be refunded to them. Since the appellants are in jail, they be released forthwith, if not wanted in any other case. [ M.N.GILANI, J. ] [ P.V.HARDAS, J. ]