1 Cri.Appeal No.400 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.400 OF 2010 Rahul s/o Chandu Surwade, Age 33 years, Occu.Labour, R/o Bhim Nagar, Chalisgaon, District Jalgaon ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.J.Salgare, Advocate (appointed) for the appellant Mrs S.D.Shelke, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 5th July 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/-, in default of which to undergo further rigorous imprisonment for six months, by the Ad hoc Additional Sessions Judge-1, Dhule, by judgment dated 13.11.2009, in Sessions Case No.103 of 2009, by this appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this appeal may be stated thus. 2 Cri.Appeal No.400 of 2010 P.W.2 Nandkumar Bidwai, an A.P.I. who was attached to Mohadi Police Station, was entrusted with the investigation of a crime which was registered by P.S.O. Potdar on the basis of the complaint of P.W.1 Kaushalyabai at Exh.25. The complaint of P.W.1 Kaushalyabai was in respect of assault by the appellant on deceased Sangita at 4.30 p.m. by a pestle. Accordingly, P.W.2 A.P.I. Bidwai drew the scene of the offence panchnama at Exh.11. Inquest panchnama of the dead body of Sangita came to be drawn at Exh.12. Dead body of deceased Sangita was referred for post mortem examination and post mortem on the dead body of deceased Sangita was performed by the Medical Officer of Civil Hospital, Dhule. The post mortem report at Exh.14 has been admitted by the appellant/accused. As per the post mortem report deceased Sangita had sustained (i) contused lacerated wound on her forehead left side 3 cm x 2 cm x canty deep with fracture of the underlying bone; (ii) contused lacerated wound lateral to left eyebrow supero-lateral 2 cm x 1 cm x bone deep. Fracture of the left frontal and left parietal and nasal bone was detected. On internal examination multiple commuted fracture on the left frontal and left parietal bone was detected. The brain was exposed to exterior, cranial cavity was open. Sub dural subarachnoid haemorrhage present on left frontal, left parietal. The post mortem refers the time of death as 4.30 p.m. The appellant/accused came to be arrested and his clothes came to be seized and were referred to the Chemical Analyzer. The report of the Chemical Analyzer is at Exh.19. It shows that the shirt of the appellant was found stained with human blood though the group could 3 Cri.Appeal No.400 of 2010 not be determined. The pestle, which was seized from the scene of the offence was also found stained with human blood. Further to the completion of investigation a charge-sheet against the appellant came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.3 framed charge against the appellant for offence punishable under Section 302, 504, 506 and 323 of the Indian Penal Code. The charge specifically states that the appellant/accused had committed an offence on 11.5.2009 at around 4.30 p.m. at the residence of P.W.1 Kaushalyabai. 4. Since practically all the documents came to be admitted by the appellant/accused, prosecution chose to examine only two witnesses viz. PW-1 Kaushalyabai, the complainant and mother of deceased Sangita and PW-2 Nandkumar Bidwai the Investigating Officer. P.W.1 Kaushalyabai in her evidence states that the appellant/accused was married to her daughter about five to six years prior to the incident. She has stated that on account of arranging a religious function, she had invited Sangita and the appellant to her house. Both of them had stayed overnight. According to her the appellant did not like the request of P.W.1 to stay overnight. Kaushalyabai states that she was awakened at about 4.00 am. in the morning as she had heard some cries for help. She had noticed that the appellant was assaulting Sangita by a pestle. She states that her daughter had sustained 4 Cri.Appeal No.400 of 2010 injuries, which were bleeding. She had taken Sangita to the Civil Hospital at Dhule where Sangita was pronounced dead on admission. In cross-examination she has admitted that her other daughters and their husbands were present in the house. She has admitted that there is a platform to the house of her neighbour Bhatu Shinde, which is at a height of three feet. She has admitted that this platform is made of a stone. She has admitted about existence of stones around the platform. She has admitted that Sangita had slept on the said platform in the afternoon and some ladies were also chitchatting there. She has denied the suggestion that Sangita had fallen from the platform and had sustained injuries. The vernacular deposition of the witness is also in respect of the time of the incident being at 4.00 a.m. in the morning. 5. Though this witness had lodged her first information report at Exh.25, the Public Prosecutor chose not to confront the witness with the first information report and consequently the first information report was not proved. The said first information report came to be proved by P.W.2 Nandkumar Bidwai, who states that a report had been lodged by P.W.1 Kaushalya. 6. Mr Salgare, learned Counsel appointed on behalf of the appellant has urged before us that if the first information report and the other documents, the time of the incident is stated as 4.30 p.m. while P.W.1 Kaushalya in her evidence has stated that the time of the incident as 5 Cri.Appeal No.400 of 2010 4.00 a.m. It is, therefore, urged before us that the difference in the timings is irreconcilable and, therefore, the prosecution is trying to make out a case different from the case, which was sought to be made out during investigation. The learned Assistant Public Prosecutor has supported the findings recorded by the trial Court. 7. All the documents filed by the prosecution refer to the time of the incident as 4.30 in the afternoon. Even the charge framed by the trial Court at Exh.3 informs the accused that the offence is alleged to have been committed at 4.30 in the afternoon. The scene of the offence panchnama, the post mortem report, the inquest report and other documents refer to the incident as having occurred at 4.30 p.m. P.W.1 Kaushalya in her deposition for the first time states that she had seen the appellant/accused assaulting Sangita at 4.00 in the morning. In fact, she states that she was sleeping and was awakened at 4 O’ Clock in the morning on hearing cries of Sangita. The first information report also refers to the time of the incident as 4.30 p.m. Coupled with this P.W.1 Kaushalya has admitted that Sangita was sleeping on the platform in the afternoon. If Sangita had already been killed in the morning, we find it difficult to believe that she would be noticed sleeping on the platform in the afternoon. In such circumstances, therefore, according to us the evidence of P.W.1 Kaushalya is irreconcilable with the documents and the other evidence of the prosecution. The prosecution, therefore, according to us has attempted to carve out an entirely different case than the one in 6 Cri.Appeal No.400 of 2010 respect of which the charge-sheet was filed in the Court. In none of the documents is there any reference to an incident, which is alleged to have occurred at 4.00 in the morning. Prosecution though had cited other eye witnesses to the incident had chosen not to examine the other eye witnesses. Consequently, we find that implicit reliance cannot be placed on the sole testimony of P.W.1 Kaushalya. A conviction cannot be based on the evidence of P.W.1 Kaushalya, whom we do not find to be a witness who can be relied upon. In these circumstances, therefore, according to us benefit of doubt has to be given to the appellant/accused. 8. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine if paid by the appellant be refunded to him. Since the appellant is in jail he be released forthwith, if not wanted in any other case. We quantify the fees payable to Mr Salgare, learned Counsel appointed on behalf of the appellant at Rs.5,000/- (Rs.Five thousand). ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/400.10criapeal)