1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.50 OF 1997 Dattu s/o Deoram Akhade, Age : 37 years, Occupation Agriculture, resident of Sangamner, Taluka Sangamner, District Ahmednagar ..APPELLANT (Orig. Accused No.2) VERSUS The State of Maharashtra ..RESPONDENT Mr N.K. Kakade, Advocate for the appellant; Mr K.G. Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 13th November, 2009 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant/original accused no.2, who stands convicted for an offence punishable under section 307 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.1,000/-, with a default stipulation of undergoing further R.I. for three months in the event of non payment of fine, by the 2nd Additional Sessions Judge, 2 Ahmednagar, by judgment dated 22.1.1997 in Sessions Case No.32 of 1991, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.14 A.S.I. Trimukhe was attached to police station, Sangamner, Taluka and District Ahmednagar. On 25.7.1990 offence vide Crime No. 149 of 1990 was registered in the police station and on 3.8.1990 P.W.14 A.S.I. Trimukhe was handed over the investigation. He accordingly searched for the accused. P.W.16 C.P.I. Shelke had registered the offence vide Crime No.149 of 1990 on the basis of the report of P.W.1 Bebi at Exh.21. He had thereafter referred the injured to the hospital at Sangamner along with the requisition at Exh.13. He had thereafter gone to village Karule and had drawn the scene of the offence panchnama at Exh.62 in the presence of panch witnesses. He then recorded the statements of the witnesses and arrested accused Dnyaneshwar and Thamaji Ganpat Akhade from their house. On 27.7.1990 blood stained clothes of Shobhachand Akhade and Bhika Laxman Akhade came to be seized vide seizure memo at Exh.11. The blood samples came to be drawn on the basis of the requisition at Exh.14. Thereafter investigation came to be handed over to A.S.I. Trimukhe - P.W.14. During custodial interrogation accused Dnyaneshwar had expressed his willingness to 3 produce the sword concealed by his father and accordingly memorandum at Exh.24 came to be drawn in the presence of panch witnesses. Accused Dnyaneshwar thereafter led the police and the panch to village Karule and had produced a sword which had been concealed beneath a bush on the banks of a rivulet. The said sword came to be seized vide panchnama at Exh.25. The said sword is Article No.12. Investigation thereafter was reverted back to P.W.16 C.P.I. Shelke. P.W.16 C.P.I. Shelke forwarded the seized articles to the Chemical Analyser at Aurangabad along with the requisition at Exh.15 and thereafter had requested the Tahsildar, Sangamner for drawing the sketch of the scene of the offence. Accused no.3 Dattu came to be arrested by P.W.17 P.S.I. Borashe and during custodial interrogation accused no.3 Dattu (appellant) had expressed his willingness to produce the sword concealed by him. Accordingly, memorandum at Exh.34 came to be drawn in the presence of panchas. The accused led the police and the panch to his house and produced a sword which came to be seized vide seizure memo at Exh.35. The said sword is Article No.13. Since the other accused have been acquitted and no appeal has been preferred by the State questioning their acquittal, the evidence in respect of the recovery of the articles at their behest is not adverted to. Further to the completion of investigation a charge-sheet against the appellant and other accused came to be filed. 4 3. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed a charge against the appellant and other accused for offence punishable under section 143, 147, 148, 307 read with sec. 149 of the Indian Penal Code, 135 of the Bombay Police Act and in the alternative under section 307 read with sec. 34 of the Indian Penal Code and simpliciter charge under section 307 of the Indian Penal Code against original accused no.3 Gorakh. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 17 witnesses. Upon appreciation of the evidence of the prosecution, the Trial Court convicted and sentenced the appellant as aforestated while acquitting the other accused of the offences with which they were charged. 4. In order to deal effectively with the contentions advanced before us by Shri N.K. Kakade, learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution has examined P.W.1 Bebi, who is an injured witness and the first informant. P.W.1 Bebi states that she is resident of village Karule, Taluka Sangamner, District Ahmednagar. Her husband was residing at Karule as well as at Nashik while her brother in law Shobhachand resided at Karule. She states that her family was owning about 25 Acres of land in that village. The agricultural land of the accused was adjacent to her land. She states that the relations between 5 her family and that of the accused were strained on account of land dispute. She states that a day prior to the incident, she and her husband had gone to village Karule in Taluka Kopargaon for meeting her daughter. They had thereafter returned from Nashik in the evening and had gone to their agricultural land at about 9.00 to 9.15 a.m. She had noticed accused Dattu grazing his bullocks in the standing crop of Bajra. Her husband, therefore, had driven away those bullocks and had abused accused Datta. She along with her husband then had gone to the other land and accused Dattu and accused Devram had come there armed with swords and had assaulted her husband with swords. She states that she was also assaulted by accused Devram by a sword on her left hand just above the wrist. She states that she was also assaulted by accused Dattu and Devram. She states that she had fled from the spot on sustaining the injury to her left hand and had raised cries for help. She claims to have informed the persons who had met her on way to the village and on reaching the village had informed her brother-in-law P.W.4 Shobhachand about the incident. She states that on reaching home she had also informed her other brother-in-law P.W.11 Shivaji. She claims to have informed the Police Patil about the assault on her husband P.W.2 Baburao. She states that her husband was placed in a jeep and taken to the hospital at Sangamner and thereafter she had gone along with her husband to the police station and had lodged her report. In cross- examination she has admitted to have reached the hospital at Sangamner at about 10.30 a.m. to 11.00 a.m. She states that she was not aware if 6 the accused had also been brought to the hospital in an injured condition. She has stated that she could not state if a Special Magistrate had recorded the statement of her husband and his brothers. She has admitted as true that her husband was shifted to Nashik in an ambulance. She does not know if accused Devram had also been shifted to Nashik in an ambulance and does not know if Devram had succumbed to his injuries on that day in the hospital at Nashik. The Trial Court has recorded the demeanour of this witness in declining to answer the question as to whether she along with others were facing trial for the murder of the accused Devram. Ultimately she answered in the affirmative. Omission has been duly proved that she had not stated in her previous statement that accused Dattu was grazing bullocks in her land. Omission has been duly proved that she had not stated in her previous statement that she had informed the Police Patil about the incident. She has admitted to have witnessed two blows being dealt by a sword to her husband and claims that thereafter she was assaulted by a sword and then she had fled towards the village. She has admitted not to have been admitted in the hospital. She also states that her clothes were not seized. She has denied the suggestion that she along with 7 to 8 others had gone to the residential house of the accused and had assaulted the accused in which accused Devram had succumbed to his injuries. 7 5. Prosecution has examined P.W.2 Baburao, husband of P.W.1 Bebi. He also states that on the day of the incident at about 9.00 in the morning he along with his wife P.W. 1 Bebi had gone to his agricultural land and had noticed the bullocks and cow of the accused grazing in his agricultural land. He states that he had accordingly driven away those cattle and had abused accused Dattu. He states that accused Dattu returned accompanied by his father Devram and both of them were armed with swords. Accused Devram had then dealt a sword blow on his face, while accused Dattu grabbed his beard and had dealt a blow of the sword on on the side of his face i.e. on the neck. He states that his wife started shouting and had tried to intervene and the accused had also assaulted her on her left hand. He states that his wife had rushed towards the village and thereafter the accused had assaulted him with sword. He states that accused Gorakh, Dnyaneshwar, Thamaji, Dropadabai had also arrived there and they had also assaulted him. He states that his brother P.W.4 Shobhachand had tried to intervene but he too was assaulted by accused Dattu. His brother P.W.11 Shivaji had also been assaulted by the accused. He states that thereafter he was placed in a jeep and brought to the hospital at Sangamner and thereafter the police had recorded his statement. He states that his statement had also been recorded by the Special Executive Magistrate. In cross- examination he has admitted as true that in the ambulance in which he was taken from Sangamner to Nashik, accused Devram had also been taken in the same ambulance. He has admitted as correct that accused 8 Devram had succumbed to his injuries at Nashik. He has feigned ignorance as to whether he had named accused Dattu and Devram while his statement was being recorded by the Magistrate. He has denied that he along with his wife and others had stormed the house of the accused and had attacked them. He has stated that he does not know if accused Devram had died because of the injuries sustained in the assault. He has admitted that accused Dattu had also sustained serious injuries and had been admitted in the hospital for 22 days. He gives a contradictory answer subsequently when he states that he cannot state if Devram had travelled in the same ambulance to Nashik along with him. Omission has been duly proved that he had not stated in his previous statement that accused Dattu was grazing cattle in his agricultural land. Similarly, omission has been duly proved that he had not stated in his statement that accused Dattu had caught his beard and thereafter had assaulted him. Omission has been duly proved that thereafter the accused had come to the agricultural land armed with weapons. Omission has been proved in respect of the other acquitted accused. 6. P.W.4 Shobhachand, brother of P.W.2 Baburao states that on the day of the incident his brother Baburao and his wife P.W.1 Bebi had gone to their agricultural land and thereafter P.W.1 Bebi had come to the house and had informed him that accused Devram, accused Dattu, accused Mauli, Gorakh, Thamaji and Dropadabai were assaulting P.W.2 Baburao. On hearing this he had rushed to the scene of the offence and 9 had seen accused Devram and Dattu assaulting P.W.2 Baburao with sword while the other accused were instigating the accused to assault them. He states that acquitted accused Gorakh was armed with a stick. He states that he had told them not to assault his brother and thereafter accused Devram and Dattu had also assaulted him on his head. Accused Gorakh had also assaulted him with a stick on his back. He states that thereafter his brother P.W.11 Shivaji had come to he scene and he was also assaulted. Omission has been duly proved that he had not stated in his previous statement that wife of his brother had informed him about the incident at the S.T. Stand at Karule. Contradiction at portion mark "A" has been duly proved that he had stated in his previous statement that he had seen the accused assaulting P.W.2 Baburao towards the rear of the house of one Bhika Akhade. He could not explain as to how portion mark "A" was scribed in his statement. Omission has been duly proved in respect of the alleged assault by the acquitted accused. He has admitted that his brother was lying in an injured condition towards the rear of the house of one Bhika Akhade. He has denied the suggestion that he along with the others had stormed the house of the accused and had injured them. He has denied the suggestion that in the assault on the accused he and his brother and others had sustained injuries. 7. P.W.11 Shivaji, another brother of P.W.2 Baburao states that on the day of the incident his brother P.W.2 Baburao and P.W.1 Bebi had gone 10 to their agricultural land and thereafter P.W.1 Bebi had informed him that accused Dattu and Devram had tried to kill his brother. He states that he had noticed that P.W.1 had received an injury to her left hand. He states that he had accordingly rushed to the agricultural land and had seen accused Dattu and Devram assaulting his brother Baburao and Shobhachand with sword. He states that he attempted to intervene and thereafter accused Dattu and Devram had also assaulted him by a sword on his head, hands and back. He states that his father was also assaulted by the accused. In cross-examination he has denied the suggestion that the incident had occurred near the hut of one Bhimaji Akhade and not in the agricultural land. Omission has been duly proved that he had not stated in his previous statement that P.W.1 Bebi had informed him that accused Dattu and Devram had tried to kill his brother. He has admitted that a trial for murder of the accused is pending against him and others. He has admitted that on the next day of the incident he had learnt that accused Devram had died. 8. P.W.16 C.P.I. Shelke, who had arrested the accused has admitted in cross-examination that he had brought accused Devram and Dattu from their house in an injured condition. He then corrected himself to say that P.S.I. Pachundkar had brought them in the hospital. He has admitted to have made a panchnama of the house of the accused at Exh. 62. He has also admitted as true that injured Devram had been shifted to the Civil Hospital at Nashik and had died on the same day. He has 11 admitted to have filed a charge-sheet against the accused who had caused injuries to accused Dattu and Devram. 9. Prosecution has examined P.W.13 Dr. Nehulkar, who had examined P.W.11 Shivaji and had noticed the following injuries :- (1) Incised wound on the left parietal region posteriorly placed, it was of the size of 4" x 1/2" (2) Incised wound on the left wrist dorsally placed, it was of the size of 2-1/2" x 1" (3) Incised wound on the right fronto parietal region, with fracture of the outer cortex of skull, the size of this injury was 5" x 1/4" (4) Incised wound on the right thumb, its size was 2-1/2" x 1/2". The bone of the right thumb was also injured (5) Incised wound on the left hand dorsally placed. The size of this injury was 1" x 1/4" (6) Incised wound on the left forearm, dorsal aspect, the size of this injury was 1/4" x 1/8" 12 (7) Incised wound on the right forearm. This size of this injury was 1/4" x 1/8". According to him, the injuries were caused by sharp object and were grievous in nature and dangerous to life. The injury certificate is at Exh. 52. He also claims to have examined P.W.1 Bebi who had one injury :- (1) Incised wound on the left dorso lumber aspect of the left forearm, the size of this injury was 1/4" x 1/4". According to him it was simple in nature which was caused by a sharp object. He claims to have examined one Bhika, who had one injury :- (1) Incised wound on the vertex of the skull. The size of this injury was 3" x 1/4". He claims to have examined P.W.2 Baburao, who had the following injuries :- (1) Incised wound on the left cheek. The size of the injury was 4" x 1/2" 13 (2) Incised wound on the left pinna, injury to cartilage. The size of the injury was 3" x 1/2" (3) Incised wound on the left hand dorsally placed. There was injury to the extensor tendon and carpo meta carpal joint of the left index finger, it was profusely bleeding (4) Incised wound on the left wrist dorsally placed. The size of this injury was 3" x 1/4". (5) Incised wound on the left elbow lateral aspect, size of this injury was 2" x 1/4" (6) Incised wound on the left knee, 3" x 1/4". Because of this injury the knee joint was lying open (7) Incised wound on the left mandible lateral aspect. The size of this injury was 2-1/2" x 1/4" (8) Incised wound on the posterior aspect of the elbow. It was right posteriorly placed. The size of this injury was 1" x 1/4" 14 (9) Incised wound on the right wrist. The size of this injury was 2" x 1/4" (10) Incised wound at the base of the right thumb size of the injury was 2" x 1/4". He claims to have examined P.W.4 Shobhachand, who had the following injuries ;- (1) Incised wound on the right parietal region of the size of 4" x 1/4". Injury was caused to the bony cortex outer table of skull (2) Incised wound on the right posterior part of parietal region. The size of this injury was 3-1/2" x 1/4". It was profusely bleeding. In cross-examination he has admitted that on the same day i.e. on 25.7.1990 he had examined Devram and Dattu and had found that Devram had sustained six injuries, which are as follows :- (1) Contused lacerated wound on the right forearm, the size of this injury was 6" x 4" (2) Contusion on the vertex of skull. The size of this injury was 6" x 4" 15 (3) Contused lacerated wound on the left little finger, size was 1-1/2" x 1/4" (4) Incised wound on the left foot distally, size of this injury was 2-1/2" x 1/4" (5) Blunt injury on the chest. There was surgical emphysema. The patient was breathless. All the ribs of the left side were fractured. Accused Dattu was also examined and was found to have sustained the following injuries :- (1) Incised wound on the right side above zygomatic process. The size of this injury was 2-1/2" x 3/4" (2) Contusion on the upper lip. The size was 3" x 1-1/2" (3) Contusion on the left forearm, size was 6" x 4" (4) Superficial abrasion on the left side of the nose, size of this injury was 1/2" x 3/4' (5) Fracture of the ulna in the left middle half region. An X ray photo this injury was obtained. Plate number was 664L 16 (6) Dislocation of metacorpo-phalangeal joint of the thumb. X ray plate number was 684 (7) Contusion on the left hand, size 3 " x 2" (8) Contusion on the right thigh, size was 6" x 3" (9) Contusion on the left thigh, it was of the size of 4" x 3" (10) Contusion on the lumber region. Size was 5" x 3" (11) Contused lacerated wound on the vertex of skull, size 5" x 1/2" (12) There was fracture of the fibula, left proxima 1/'3rd. X ray plate number was 681. He states that he had issued the certificate at Exh.58. He states that accused Devram and P.W.2 Baburao had been referred to Nashik in one ambulance. 10. Mr N.K. Kakade, learned Counsel for the appellant has urged before us that the prosecution has completely suppressed the serious and grievous injuries sustained by accused Dattu and accused Devram. 17 According to him Devram had succumbed to his injuries on that day itself and the prosecution witnesses are accused in the trial of murder of Devram. Reliance is placed by Shri Kakade, learned Counsel for the appellant on the judgment of the Supreme Court in Lakshmi Singh and others, etc. vs. State of Bihar, AIR 1976 Supreme Court 2263. The Supreme Court in the aforesaid judgment has held that non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is very important circumstance from which the Court can draw the following inferences :- (1) that the prosecution has suppressed the genesis and the original of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 11. In the present case, undisputedly the prosecution witnesses bore an animus against the accused. This is admitted by the prosecution witnesses themselves. Coupled with this we find that there is omission in 18 respect of the prelude to the incident i.e. about accused no.2 grazing his cattle in the agricultural land of P.W.2 Baburao. The prosecution does not explain as to how accused no.2 and Devram had sustained serious injuries. Both these accused came to be arrested from their house in an injured condition. In such circumstances, therefore, according to us the prosecution has not been able to establish the offence against the accused beyond reasonable doubt. The version of the accused that it was the prosecution witnesses who had stormed their house and had caused injuries to them competes improbability with the prosecution case. The very genesis of the occurrence therefore, according to us, has been suppressed by the prosecution and the non-explanation of the injuries sustained by the accused, therefore, casts a doubt upon the prosecution case. In such circumstances, therefore, according to us the accused is entitled to be given the benefit of doubt. 12. Accordingly, this Criminal Appeal is allowed and conviction and sentence of the appellant for the offence with which he was charged and convicted is hereby quashed and set aside and the appellant is acquitted of the same. Fine if paid by the appellant be refunded to him. The bail bond of the appellant stands cancelled. ( A.V. NIRGUDE, J.) ( P.V.HARDAS, J.) amj/cria50.97