C.A. No. 237/11 in Cri. Appeal No.175/2011. 1 Judgment IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 237 OF 2011 IN CRIMINAL APPEAL NO. 175 OF 2011. State of Maharashtra, through Police Station Officer, Police Station, Digras, District Yavatmal. ....APPELLANT. // VERSUS // 1] Jaynarayan Thakurlal Jaiswal, aged about 56 years, 2] Sau. Shakuntala @ Sushila Jaynarayan Jaiswal, aged about 46 years, 3] Sandip Jaynarayan Jaiswal, aged about 25 years, 4] Ravi Ramprasad Jaiswal, aged about 25 years, 5] Satish Sukhlal Jaiswal, aged about 25 years, 6] Prakash Jodhlal Jaiswal, aged about 30 years, C.A. No. 237/11 in Cri. Appeal No.175/2011. 2 Judgment 7] Uttam Jodhlal Jaiswal, aged about 39 years, All R/o Sakhara, P.S. Digras, District Yavatmal. ....RESPONDENTS. -------------------------------------------------------------------------------------------- Mr. T.A. Mirza, Additional Public Prosecutor for Appellant. Mr. S.V. Sirpurkar, Advocate for Respondents. -------------------------------------------------------------------------------------------- CORAM: MRS. V.K. TAHILRAMANI & M.L. TAHALIYANI, JJ. DATED : JUNE 29, 2011. JUDGMENT (PER M.L. TAHALIYANI, J.) 1] This is an appeal against the judgment and order of acquittal passed by the learned Additional Sessions Judge, Darwha on 17.8.2010 in Sessions Trial No. 28/05. The respondent nos. 1 to 7 were the original accused in the Sessions Trial. They were tried for the offences punishable under Sections 147, 148, 323, 452, 506 II and 307 read with S. 149 of the Indian Penal Code. As far as offence punishable under Section 323 of Indian Penal Code is concerned, the said charge was framed only against the respondent C.A. No. 237/11 in Cri. Appeal No.175/2011. 3 Judgment nos. 1 to 3. Rest of the charges were framed against all the respondents. 2] After a full-fledged trial, the impugned judgment was delivered by the learned Additional Sessions Judge acquitting all the respondents for the offences punishable under Sections 147, 148, 307 read with Section 149 of the Indian Penal Code. The respondent nos. 1 to 3 have been convicted for the offence punishable under Section 323 read with Section 34 of Indian Penal Code. The respondent nos. 1 to 7 have been convicted for the offences punishable under Sections 452 & 506 Part II read with Section 149 of Indian Penal Code. Different sentences have been imposed on them following the convictions. However, the details of the sentences are not necessary to be stated here as there is no appeal by the State for enhancement of the sentence. The State feels aggrieved only by the judgment of acquittal of the respondents for the offence punishable under Section 307 read with Section 149 of Indian Penal Code. Before we proceed further, it may be noted C.A. No. 237/11 in Cri. Appeal No.175/2011. 4 Judgment here that the respondents have also filed appeal against the conviction, which is pending before the appropriate Bench. 3] As far as the present appeal of the State is concerned, Mr. T.A. Mirza, the learned Additional Public Prosecutor is heard on behalf of the Appellant and Mr. S.V. Sirpurkar, learned Advocate is heard on behalf of the Respondents. 4] Mr. T.A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the appellate/State, has submitted that the judgment of the learned trial Court suffers from serious infirmity. It is submitted that the learned trial Court has erroneously disbelieved the material witnesses, which has resulted into the order of acquittal of the respondents for the offence punishable under Section 307 read with Section 149 of Indian Penal Code. 5] Before we advert to the arguments of Mr. T.A. Mirza, the learned Additional Public Prosecutor on behalf of the Appellant and C.A. No. 237/11 in Cri. Appeal No.175/2011. 5 Judgment Mr. S.V. Sirpurkar, learned Advocate on behalf of the Respondents, it will be apt to state, in brief, the facts of the case so that the arguments can be appreciated in the right perspective. The complainant Geetabai Sheshrao Malve and her family members have an agricultural field at village Sakhara, Tq. Digras, District Yavatmal. The respondent Jaiswals have their agricultural field adjoining the field of the complainant. The first incident in which the respondent nos. 1 to 3 were involved and for which they have been charged for the offence punishable under Section 323 read with Section 34 of Indian Penal Code had occurred on 13.12.2004 at about 4 P.M. It is alleged that two calves of Jaiswal family had entered the field of complainant. The respondent no.1 Jaynarayan Jaiswal was present. It was impressed upon him that he should take care that his cattle did not enter the field of complainant and cause damage to the crop. However, the respondents did not pay any heed to the complaint of the complainant. The similar incident was repeated. At that time, the respondent nos. 1 to 3 Jaynarayan, Shakuntala @ Sushila and Sandip had assaulted Ulhas, the son of the complainant. This C.A. No. 237/11 in Cri. Appeal No.175/2011. 6 Judgment allegation has led to the prosecution of respondent nos. 1 to 3 for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. The complainant had attempted to convince the respondent no.2 that they should avoid fighting. Thereafter, she asked her son Ulhas to go home. Ulhas had reached home. His father was also at home. The complainant also reached home. 6] After sometime, all the respondents allegedly committed trespass at the house of the complainant. They were holding a torch and wanted to search son of the complainant. Ulhas apprehending danger to his life, concealed himself in a cattle-shed. It is alleged that the respondents could search him in the cattle-shed and administered insecticide (poison) to Ulhas. While leaving the place of the complainant, respondents had threatened that the complainant should not attempt to approach the police because the respondents were powerful enough to eliminate her son Ulhas. The matter was reported to police. The police had registered a FIR against all the respondents vide FIR No. 193 on 13.12.2004. Further investigation C.A. No. 237/11 in Cri. Appeal No.175/2011. 7 Judgment continued. The son of the complainant was taken to the hospital and he was treated by Dr. Trupti Joshi. Dr. Trupti had opined that Ulhas had consumed poison. She had issued a certificate to that effect. It was further stated by her that mouth was smelling poison and there were convulsions to his body. During the course of investigation, statements of the witnesses were recorded and after completion of investigation, charge-sheet was submitted in the Court of J.M.F.C. The case was committed to the Court of Sessions for trial according to law. 7] During the course of trial, the prosecution has examined in all 8 witnesses in support of its case. PW.1 Shankar Rathod was examined, as he had worked as an Interpreter during the course of recording of evidence. Most of the witnesses were of Banjara community and, therefore, they did not know Marathi. PW.1 who was working as Peon in Court had assisted the Court as Interpreter. PW. 2 is the victim Ulhas himself. He has stated in his evidence that there was a quarrel in the field on account of calves of the respondents C.A. No. 237/11 in Cri. Appeal No.175/2011. 8 Judgment entering the field of Ulhas. As far as the main incident of administration of insecticide is concerned, it is stated by this witness that he returned home at about 6 P.M. His mother was with him. He was narrating the earlier incident to his grandfather Chunilal. All the respondents entered the house of Ulhas. Apprehending danger from the respondents, Ulhas had concealed himself in the fodder room. The respondent Jaynarayan who was holding a torch could search him and started assaulting Ulhas. It is stated by him that the respondent no.4 Ravi and respondent no.5 Satish caught hold of his legs. The respondent no.6 Prakash and respondent no.7 Uttam caught hold of his hands. The respondent no.1 Jaynarayan sat on chest of Ulhas PW.2 and administered poison to him. It is stated that the poison/insecticide was lying in the fodder room. The respondent no.2 Sushilabai during the course of incident had inflicted blows on PW.2 Ulhas. PW.2 lost his consciousness due to the alleged administration of poison. He regained consciousness next day in the hospital at Yavatmal. He was an indoor patient in the hospital for about 5 to 6 days. C.A. No. 237/11 in Cri. Appeal No.175/2011. 9 Judgment 8] PW.4 Geetabai is mother of PW.2. She has more or less described the incident in the manner described by PW.2. This witness had not herself seen the respondents administering poison to PW.2. She, however, has stated that the PW.2 came out of fodder room shouting that he had been administered poison by the respondents. PW.2 was taken to hospital by his father. Initially he was taken to Darwha hospital and from there he was shifted to Yavatmal. The report was given at Digras Police Station by PW.3 Bharat Pawar vide Exh.29. PW.5 Kavita Malwe is wife of PW.2. Her evidence is more or less similar to the evidence of PW.4 Geetabai. She also does not appear to be eye-witness to the incident of administration of poison. PW.6 Umraosing Thakur Police Constable No. 1333 had registered offence on the basis of report Exh.29 given by PW.3. The printed FIR is at Exh.37. 9] PW.7 is Dr. Trupti Jagannath Joshi. It is stated by this witness that Ulhas Malve was an indoor patient at District Hospital, Yavatmal from 13.12.2004 to 17.12.2004. According to this witness, C.A. No. 237/11 in Cri. Appeal No.175/2011. 10 Judgment Ulhas Malve had consumed poison. She had seen Ulhas Malve vomiting. She had also recognized smell of poison emanating from mouth of Ulhas Malve. The witness has further stated that there were convulsions to the body of Ulhas Malve. 10] PW.8 API Suresh Bodkhe had carried out further investigation. He had visited spot of the incident. One tin of poisonous medicine (insecticide) (as described in the evidence) was seized. The spot panchnama was drawn vide Exh.72. On the same day, accused persons, except accused no.7 were arrested and arrest panchnamas Exhs. 73 to 78 were drawn. Statements of the witnesses were recorded on 19.12.2004. After completion of investigation, he has filed a charge-sheet in the Court of J.M.F.C., Digras. During the course of trial, the prosecution had examined as many as 8 witnesses in support of its case. 11] As already stated in this application for leave to appeal, the only issue involved is whether the State shall be granted leave to C.A. No. 237/11 in Cri. Appeal No.175/2011. 11 Judgment appeal against the judgment and order passed by the learned trial Judge acquitting the respondents for the offence punishable under Section 307 read with Section 149 of the IPC. 12] The whole case of the prosecution, as far as attempt to commit murder is concerned, rested upon the evidence of PW.2 Ulhas, his mother PW.4 Geetabai and his wife PW.5 Kavita. We have carefully examined the evidence of these 3 witnesses. As far as Geetabai and Kavita are concerned, they were not present when the poisonous substance was allegedly administered to Ulhas. Ulhas has stated in his evidence that poisonous substance was administered to him by the respondent no.1 Jaynarayan. The other respondents had caught hold of him. The poisonous substance was lying in the fodder room where the incident occurred. Ulhas has also stated that while the poisonous substance was being administered to him, it had spilled over his mouth and eyes. It, therefore, follows that it must have spilled over the floor also. The Investigating Officer has not collected any sample from the floor. No attempt has been made C.A. No. 237/11 in Cri. Appeal No.175/2011. 12 Judgment to ascertain whether the poison had spilled over the floor. The bottle containing the said poison was already lying in the fodder room. It was not the case of prosecution that the poison was brought by the respondents. The seizure of bottle from the spot was in fact not as important as recovery of poisonous substance from the floor was important. At the same time, it was equally important to ascertain whether there was poisonous substance in the vomit of the victim and the intestinal fluid. Dr. Trupti Joshi PW.7 has categorically stated in her cross-examination that she had not collected intestinal fluid. She had also not collected vomit of the victim Ulhas. She has further admitted that smell of turpentine is similar to smell of poison. Though she has not admitted that Doctor cannot give definite opinion without report of Chemical Analyser in respect of intestinal fluid or vomit sample, however, this opinion of doctor is not acceptable, inasmuch as she herself has stated that smell of turpentine is also like the smell of poison. In the circumstances, how can one rule out the possibility of the PW.2 not consuming turpentine. It could be smell of turpentine also. It is well-known that turpentine is used by many C.A. No. 237/11 in Cri. Appeal No.175/2011. 13 Judgment villagers nowadays as intoxicant in case liquor is not available. In any event, it was for the prosecution to establish that the poisonous substance was administered to Ulhas by the respondents. 13] The conduct of PW.2 is also not free from doubt, inasmuch as why did he conceal himself in the fodder room when his family members were present at home. Similarly, the conduct of other witnesses is also strange, inasmuch as they did not bother to follow the respondents, knowing well that respondents were in search of PW.2 Ulhas. In fact, in normal course, all the family members including mother and wife of Ulhas should have followed the respondents when they knew that the respondents were determined to cause harm to Ulhas. The evidence in this regard of all the witnesses, therefore, is not reliable. 14] Since the evidence of witnesses is found to be unreliable and since evidence of Medical Officer does not help the prosecution in any manner, we do not find any fault in the judgment of the learned C.A. No. 237/11 in Cri. Appeal No.175/2011. 14 Judgment trial Court. The C.A. report in respect of contents of the tin seized from the fodder room does not help the prosecution in any manner. It is also not the case of prosecution that the respondents carried poison bottle (insecticide) with them. We do not find any substance in the application. 15] The application for grant of leave to appeal stands dismissed. The Criminal Appeal be shown as disposed of accordingly for statistical purpose. JUDGE JUDGE J.