1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 793 OF 2007 1. Dnyandeo Yadavrao Bhosale ) Age: 48 years, Occupation: Agri., ) ) 2. Balu Alias Dattatraya ) Madhurkar Bhosale, ) Age : 28 years, Occupation: Agri., ) ) 3. Madhukar Yadavrao Bhosale, ) Age: 54 years, Occupation: Agri., ) ) R/o. Undawadi, Taluka – Baqramati) Dist – Pune. ) .... Appellants. V/s State of Maharashtra ) .... Respondent. Mr. P.R. Arjunwadkar for the appellants. Mrs. P.P. Bhosale, APP for the State. CORAM: V.M. KANADE, J. DATE : 30TH APRIL, 2010 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the appellants and the learned APP for the State 2 Appellants have been convicted for the offence punishable under section 304 part -II read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 500/- and in 2 default of payment of fine to suffer rigorous imprisonment for one month. 3. Prosecution case is that on 29/6/2008 the father of Ankush Bhosale (P.W.1) left the house at about 4.00 a.m. in the morning for answering the nature’s call. In the FIR which was recorded, he has stated that his father Sadashiv Bhosale, aged 65 was mentally ill and in the fit of madness, he used to roam around the village and he also used to go to village called as Undavadi Supe which was about 3 to 4 kilometers from their house. He has stated in the FIR that after his father left the house at 4.00 a.m., he returned and again went out. At 5.30 p.m., he received a phone call and he was informed by the police constable that his father was detained near the house of Dnyandeo Gavali and he had asked him to go there for taking him away. Accordingly, P.W.1 with P.W.4 went there on motor-cycle and found that his father was tied to the telephone pole and that he was injured. He requested him to release his father and, at that time, he informed him that his father had gone to Dhaba and had assaulted workers working at Dhaba. Thereafter, again P.W.1 requested him to release his father and, accordingly, his father was released and he noticed that there were injuries on the hands and feet of his father. He was thereafter taken to the hospital. Dr. Bhapkar, upon examination, informed him that his father has died. 4 In his statement, P.W. 1 stated that his father informed 3 him that the present appellants had assaulted him with sticks. The accused were arrested and, thereafter, investigation was made by the Investigating Officer and charge-sheet was filed. The accused were charged for the offence punishable under section 302 read with section 34 of the Indian Penal Code. 5. Prosecution examined in all 12 witneses. P.W.1 was the complainant Ankush Sadashiv Bhosale, son of the deceased. P.W.2 - Jeevan Mohanrao Gaikwad was the panch witness who had prepared panchanama of seizure of clothes. P.W. 3 – Eknath Mahadeo Jagtap also was the panch witness in respect of spot panchanama. P.W. 4 – Sunil Suresh Valkudre was the friend of P.W.1. P.W. 5 - Lahu Sadashiv Bhosale was the brother of P.W.1. P.W. 6 – Dattatraya Santu Khomane, again, was the panch witness in respect of recovery of nylon rope. P.W. 7 – Dr. Dattatraya Babasaheb Bankhande was the Medical Officer who performed postmortem. P.W. 8 – Narayan Laxman Madane was the constable who had produced the station diary. P.W. 9 – Nilesh Madhuram Chandgude was the a another witness who, however, turned hostile. P.W. 10 – Suryakant Raghunath Gaikwad was the police constable and who was carrier of the articles which were taken to Chemical Analyser. P.W. 11 – Prabhakar Mahipati Shinde was the Investigating Officer. P.W. 12 – Dilip Nivrutti Sonwane was the Police Naik who had taken viscera to the Office of Chemical Analyser, Pune. Defence examined one witness 4 D.W. 1 – ASI Anil Pansare. 6. The Trial Court, after having appreciated the evidence which was brought on record, convicted the appellants for the offence punishable under section 304 Part-II read with section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 10 years and also imposed fine of Rs 500/- and in default they were directed to suffer simple imprisonment for one month. 7. I have heard the learned Counsel appearing on behalf of the appellants and the learned APP appearing on behalf of the State at length. 8. In the present case, admittedly, there was no eye witness to the said incident. The prosecution case solely rests on the oral dying declaration given by the deceased to P.W.1, P.W.4 and P.W.5. The prosecution has also relied on the recovery of Nylon rope and stick at the instance of the appellants. Further, they have relied on C.A report in respect of the clothes of the deceased and clothes of the accused. According to the prosecution, motive for commission of the said crime was that one of the appellants had a fight with the Manager of the Bank and, at that time, complainant’s father had made a statement against him as a result of which he was arrested and prosecuted. The said incident had taken place about one and half years before the said incident and, therefore, according to the prosecution 5 there was a motive for assaulting his father. 9 Mr. Arjunwadkar, the learned Counsel appearing on behalf of the appellants submitted that the Sessions Court had held that motive was not established by the prosecution. Similarly, the Sessions Court did not accept the C.A. Report and the recovery of nylon rope and stick at the instance of the appellants. He submitted that, admittedly, father of the complainant was mentally ill and he used to roam in the village at night. He submitted that, therefore, on the basis of oral dying declaration alone the appellants could not have been convicted by the Trial Court. He further submitted that adverse inference ought to have been drawn by the Sessions Court for not examining Sarpanch of the village and the Head Constable who had recorded the station diary which was brought on record which established that the deceased had been detained by the Sarpanch and about 10 to 15 villagers. It is submitted that in order to protect the Sarpanch, appellants have been falsely implicated. 10. Perusal of the evidence of P.W.1, P.W.4 and P.W.5 clearly disclose that these three witnesses have made several improvements in their case and have also omitted to give evidence in respect of certain things which they had stated before the police. So far as P.W. 5 is concerned, he has stated in his examination-in-chief that he had seen the appellants assaulting the deceased with stick when he had gone there. However, as rightly submitted by the learned 6 Counsel for the appellants, his testimony cannot be relied upon, particularly because he has stated in his evidence that he has reached the place after P.W.1 and P.W.4 reached there. P.W.1 and P.W.4 in their statements do not state that they have seen the appellants assaulting the deceased. The testimony of P.W. 5, therefore, is a clear improvement and is directly contrary to what has been stated by P.W.1 and P.W.4. The evidence of this witness, therefore, is not reliable and cannot be relied upon. P.W.1 and P.W.4 also have made lot of improvements in their statements. P.W.1 has stated that his father informed him that Police have assaulted him. P.W.4, on the other hand, merely states in para 1 of his examination-in-chief as under:- 1. ............Then P.W.1 also sat on the motor cycle and we all came towards the house of P.W.1. At that time, father of P.W. 1 informed us about he had been assaulted by all the accused........” No particulars, therefore, have been given by this witness and only a vague statement is made by him that father of P.W.1 informed him that the accused had assaulted him. This witness in his cross-examination has admitted that before the incident, father of P.W.1 use to wander like insane 7 person in the village. Taking into consideration all these facts, in my view, it is difficult to rely on the statements of P.W.1, P.W. 4 and P.W.5 regarding oral dying declaration of the deceased and, even otherwise, on the basis of their testimony it is not possible to come to the conclusion that appellants alone were responsible for assaulting the deceased. The station diary which is brought on record clearly reveals that genesis of the offence has not been brought on record by the prosecution. On the contrary, attempt appears to have been made by the prosecution to suppress the fact that the deceased was in the custody of Sarpanch. The Sarpanch was, therefore, the material witness and he ought to have been examined. Non- examination of Sarpanch, therefore, creates a doubt regarding genesis of the said incident. The adverse inference, therefore, will have to be drawn against the prosecution that prosecution has not examined Sarpanch because had he been examined, the prosecution case would have failed. Similarly, it was the duty of the prosecution to examine the Head Constable Pol who had recorded the station diary entries appearing at Sr. No.4, 7, 8 and 13 out of Exhibit-94. Entry No.4 clearly reveals that on 29/06/2006 at about 5.05 a.m. Ramesh Kamble, Sarpanch of Undawadi has informed to the Police Station that he and others have apprehended one thief namely Sadashiv Bhosale i.e deceased father of P.W.1. In my view, Trial Court erred in not relying on these Station Diary entries and not drawing adverse inference for not examining the Head Constable Pol. 8 In my view, Head Constable Pol was the person who was in the Police Station and who had received the information from the Sarpanch and has also contacted P.W.1 and had informed him that his father was detained at Undawadi. It was the duty of the prosecution to examine the Head Constable Pol. An adverse inference, therefore, also will have to be drawn for not examining this witness. The Sessions Court has not relied upon the C.A. Report and on the recovery of nylon rope and stick which have been allegedly recovered at the instance of the appellants. This being the position, in my view, prosecution has not established beyond the reasonable doubt that the appellants were responsible for assaulting the deceased. The Trial Court, therefore, in my view, erred in giving a finding that the appellants were responsible for assaulting the deceased. The judgment and order of the Trial Court is, therefore set aside. 11. In the result, the following order is passed:- ORDER Appeal is allowed. Appellants are acquitted of the offence punishable under section 304 Part II read with section 34 of the Indian Penal Code. They shall be released forthwith unless they are required in any other case. 9 Since appeal itself is disposed of, Criminal Application No.1393 of 2009 does not survive and the same is disposed of accordingly. (V.M. KANADE, J.)