1 Criminal Appeal No.171 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.171 OF 2009 1. Suresh S/o.Magan Mali,po Age-19 years, Occu-Agriculturist, 2. Ganesh S/o. Magan Mali, Age-21 years, Occu-Agriculturist, R/o.Shivajinagar Pachod, Tq.Paithan, Dist. Aurangabad. APPELLANTS VERSUS The State of Maharashtra, Through Police Station Pachod, Ta.Paithan, Dist. Aurangabad RESPONDENT Mr.A.R.Borulkar h/f.Mr.R.N.Borulkar, learned counsel for the appellants. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 13/12/2010 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. Original accused no.1 Suresh, who stands convicted for an offence punishable u/s. 302 of The IPC and sentenced to imprisonment for life and to pay fine of Rs.500/- in default of which to undergo SI for one month and original accused no.1 and 2, who 2 Criminal Appeal No.171 of 2009 stand convicted for an offence punishable u/s.323 r/w. 34 of the IPC and sentenced to suffer SI for 15 days and to pay fine of Rs.200/- each, in default of which to undergo SI for 15 days, by the Ad-hoc Additional Sessions Judge, Aurangabad, by judgment dated 12/12/2008, in Sessions Case No.114/2008, 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.No.2 Ramanna Shinde, a Police Head Constable, who was attached to Pachod Police Station, on 22/12/2007 recorded the complaint of P.W.No.3 Hirabai at Exh.24. On the basis of the said complaint, he registered an offence vide Crime No.I 146/2007 u/s. 302, 323, 504, r/w. 34 of The IPC. Investigation was handed over to P.W.No.7 Laxman Katkar. P.W.No.7 Laxman Katkar, who was also attached as P.S.I., to the Pachod Police Station, received the papers of the said crime. He accordingly proceeded to the Rural Hospital at Pachod and drew the inquest panchnama of the dead body of deceased Subhash at Exh.22 in the presence of P.W.No.1 Devidas. Thereafter, he visited the scene of the offence and drew the scene of the offence panchnama at Exh.37 in the presence of P.W.No.6 Santosh. From the scene of the offence, he seized samples of blood mixed soil and controlled soil and also seized the stones which were found stained with blood. The accused came to be arrested on 22/12/2007 and the arrest panchnama of the accused came to be 3 Criminal Appeal No.171 of 2009 drawn at Exh.39 and 40. The clothes of the accused came to be seized vide seizure memos at Exh.29 and 30. Further investigation thereafter came to be handed over to P.W.No.8 A.P.I. Anil Jadhav. P.W.No.8 A.P.I. Anil Jadhav took over the investigation and forwarded the seized property to the Chemical Analyser alongwith requisition dated 20/01/2008 at Exh.43. Post mortem on the dead body of deceased Subhash had been conducted by P.W.No.5 Dr.Sanjay Gore. P.W.No.5 noticed following external injuries on the dead body of deceased Subhash. 1. Contused abrasion at right side forehead 10 x 10 cm. 2. C.L.W. beyond right ear, size 9 x 3 x finger deep obliquely directed irregular margin. 3. C.L.W. right ear lower third size 3 x 1 x 1 cm. obliquely directed with irregular margin. 4. C.L.W. Right parietal bone posterior lateral aspect size 6 x 2 x finger deep. 5. C.L.W. right parietal posterior superior aspect size 6 x 2 x finger deep traverse directed with irregular margin. 6. Contused abrasion over right shoulder superior lateral aspect size 6 x 4 cm obliquely directed. 7. Contused abrasion over left zygomatic area of 4 x 4 cm. size. 8. Contused abrasion over middle and lateral aspect on forehead size 8 x 4 cm. 9. Contused abrasion over left arm lower third lateral aspect size 4 x 3 cm. 10. Contused abrasion over left forearm upper third 6 x 4 cm. 4 Criminal Appeal No.171 of 2009 lateral aspect. 11. Contused abrasion over left knee anterior aspect 4 x 4 cm. 12. Contused abrasion over left thigh medial aspect upper 1.3rd size 6 x 6 cm. 13. Contused abrasion over right finger index, middle ring and little finger, posterior aspect lower third size 2 x 2 cm. each. 14. Contused abrasion over between inter scapular region of 8 x 2 cm. size. On internal examination, he noticed the following injuries. 1. Fracture over right parietal bone. 2. Fracture over right occipital bone. 3. Fracture over right clavicle. 4. Fracture over right and left frontal bone. 5. Fracture over left zygomatic bone. 6. Fracture over left humerus left radius ulna. 7. Fracture over right index middle ring middle finger. 8. Fracture over right mandible. 9. Fracture of basal bone of skull right side fracture vertebra 7 x 2 10. In the brain collection of blood and blood clot seen underneath cerebral covering of about 250 ml. 11. Cerebral laceration of size 7 x 2 x 2 cm bleeding ++. The post mortem report is at Exh.35. He opined that cause of death is due to hemorrhagic shock, secondary due to head injury with multiple fracture of skull bone, humerus mandible and zygomatic process. Further to the completion of investigation, a charge sheet against the accused came to be filed. 5 Criminal Appeal No.171 of 2009 3. On committal of the case to the Court of Sessions, Trial Court vide Exh.16 framed charge against both the appellants for an offence punishable u/s. 302, 323, 504, 506 r/w. 34 of The IPC. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 8 witnesses. The Trial Court accepted the evidence of P.W.No.3 and accordingly convicted and sentenced the appellants. 4. In order to effectively deal with the submissions advanced before us by learned counsel for the appellants and learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. The pivot of the prosecution case revolves round the testimony of P.W.No.3 Hirabai. P.W.No.3 Hirabai, in her evidence states that she knows the appellants/accused as they are sons of the brother of deceased Subhash. She has further stated that father of both the appellants had been murdered and it was rumoured that the murder had been committed by deceased Subhash. She also states that since the incident, the accused were threatening her husband. In respect of the incident, she states that on 21/12/2007, at about 9.00 p.m., both the appellants had come to her house and had demanded that P.W.No.3 should serve them dinner. P.W.No.3 Hirabai declined to serve dinner to them and thereupon both the accused were enraged and they had threatened Hirabai and her husband. The appellants had abused both of them and have told them that they would commit murder of Subhash and seek revenge of the murder of their father. P.W.No.3 Hirabai states that thereafter she alongwith 6 Criminal Appeal No.171 of 2009 her husband came out of the house and proceeded to the police station for lodging a report against the appellants. When they had reached in front of one grocery Shop of P.W.No.4 Uddhav, the appellants came there and caught her husband. Accused Ganesh gave one fist blow on the stomach of Subhash, due to which Subhash fell on the ground. The accused thereafter assaulted Subhash by giving him kicks and fist blows. When P.W.No.3 Hirabai attempted to intervene and rescue her husband, Suresh slapped her on her cheek. The accused then took one stone which was lying at the scene of the offence and threw the stone at the leg of Hirabai. The accused thereafter took another stone and threw it with force on the head of Subhash. She states that her husband sustained grevious head injury and blood started oozing and fell on her clothes as well as on the clothes of the accused. She states that she immediately went to the police station and lodged her report. When she returned back to the scene accompanied by the Police, she noticed that her husband Subhash had succumbed to injuries. 5. In cross examination, she has admitted that police have filed a charge sheet against her husband for an offence punishable u/s. 302 of The IPC by alleging that her husband had committed murder of father of accused. She has further admitted that at the time of incident, there was darkness. 6. Shri.A.R.Borulkar, learned counsel for the appellants has 7 Criminal Appeal No.171 of 2009 urged before us that the evidence of P.W.No.3 Hirabai stands falsified by the medical evidence. Thus it is urged before us that the ocular evidence is completely falsified by the medical evidence as P.W.No.3 Hirabai had stated that only one injury by a stone was caused, whereas the Medical Officer has noted as many as 14 external injuries and 11 internal injuries, out of which 9 were fractures. It is further urged before us that the Medical Officer has admitted in his cross examination that all these injuries were not possible by a single blow of stone. In that light, it is urged before us that P.W.No.3 Hirabai's evidence, being of an eye witness, is completely falsified by the medical evidence. The learned A.P.P. has urged before us that the evidence of P.W.No.3 Hirabai is reliable as she was knowing the accused and therefore the identification of the accused at the scene, can not be doubted. It is further urged before us that the FIR was lodged promptly and merely because she had not referred to the other injuries, would not be a ground for disbelieving her. 7. P.W.No.3 Hirabai is a solitary witness to the incident, on whose testimony, the conviction rests. It is no doubt true that the conviction can be based on the testimony of a solitary witness. The proviso however is that the testimony of the solitary witness should be of sterling quality that it will inspire confidence of the Court for its acceptance. A reference in this behalf may usefully be made to the judgment of the Supreme Court in Shivaji Bobade versus State of Maharashtra, AIR 1973, SC 2622. In the present case, we find 8 Criminal Appeal No.171 of 2009 that it is not a case where a witness had exaggerated the number of blows or that a witness was not able to precisely state the situs of the injuries or a weapon. In the present case, the witness has attributed only one stone being hurled at the deceased. The medical evidence completely falsifies one blow by a stone. The injuries sustained by the deceased also indicate that some sort of weapon must have been used by the assailants in the light of the fact that contused lacerated wounds were caused and contused abrasions. There is no injury alleged to have been caused either by fist or kick blows. Moreover, P.W.No.3 Hirabai, it appears was not medically examined, which would corroborate that she had sustained a injury when the accused had hurled a stone at her. Since the evidence of P.W.No.3 Hirabai is found deficient on many aspects, we find it unsafe to base a conviction on her testimony alone. In such circumstances therefore, according to us, the accused would be entitled to be given the benefit of doubt. Prosecution also could not derive any support from P.W.No.4 Uddhav as he was declined hostile. The prosecution has not been able to examine any other witness which would corroborate the evidence of P.W.No.3 Hirabai. In such circumstances, merely finding of a blood stains on the trouser of one of the accused, would not be a circumstance which would be enough to sustain the conviction of the accused. The panchnama at Exh.29 and 30 do not show that that clothes were sealed. In fact, in the panchnama, there is no reference to the sealing of the clothes. Similarly, no explanation has been given by the Investigation Officer as to why the 9 Criminal Appeal No.171 of 2009 property was not sent to the Chemical Analyser for a period of one month. Moreover, there is no evidence that the clothes of the accused were kept intact in the sealed condition. In the light of the aforesaid circumstances, therefore, according to us, the appellants would be entitled to be given the benefit of doubt. Accordingly Criminal Appeal No.171/2009 is allowed and the conviction and sentence of the appellants is hereby quashed and set aside, and they are acquitted of the offences, with which they were charged and convicted. Fine, if any paid by the appellants, be refunded to them. Since accused no.1 Suresh Magan Mali is in jail, he be released forthwith, if not wanted in any other case. Appeal allowed accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appeal 171-09