1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO. 328/2004 Vilas Puri s/o Keshaopuri Gosavi R/o: Amani, Tah: Malegaon, District: Washim. ... Appellant. VERSUS The State of Maharashtra, through Police Station Officer, Malegaon, Distt. Washim ... Respondent .... Mr. R.R.Shrivastav, Advocate (appointed) for the petitioner. Mr. S. Doifode, A.P.P. for the respondent. .... CORAM : A.P. LAVANDE & PRASANNA B. VARALE, JJ . DATE OF RESERVING JUDGMENT : 16/06/2009 DATE OF PRONOUNCEMENT : 23/06/2009 JUDGMENT : (PER A.P.LAVANDE,J) By this appeal, the appellant takes exception to the Judgment and Order dated 28th January, 2004 passed by the 2 Ad hoc Additional Sessions Judge, Washim in Sessions Trial No. 113/2002 by which the appellant (“the Accused” for short) has been convicted for the offence punishable under Section 302 of the Indian Penal Code for having committed murder of his cousin brother Raju @ Rajendra on 23.7.2002. 2. Briefly, the prosecution case is as under: There was a dispute between the informant Rampuri Gosavi and his brother Keshaopuri Gosavi in respect of their ancestral property which ultimately was decided in favour of Rampuri Gosavi. Since the dispute was decided in favour of Rampuri Gosavi, the accused, the son of Keshaopuri Gosavi committed murder of Raju @ Rajendra on 23.7.2002 between 7.00 to 7.30 p.m. near Mahadeo Temple at village Amani. The report was lodged by Rampuri Gosavi (P.W.1)who had gone to the spot after coming to know that his son Rajendra was lying in a pool of blood. Pursuant to the report launched by Rampuri Gosavi investigation was taken up and the accused was arrested. After completion of investigation, charge sheet was filed in the Court of the Judicial Magistrate, First Class, 3 Washim which was committed to the Court of Sessions. In Sessions Trial No. 113/2002 before Additional Sessions Judge, Washim the prosecution examined 16 witnesses and produced several documents. The defence of the accused was of denial and false implication. The learned Additional Sessions Judge after appreciation of the evidence held that the offence was proved beyond reasonable doubt and consequently convicted and sentenced the accused to suffer imprisonment for life and to pay a fine of Rs. 10,000/- in default to undergo R.I. For one year. 3. Mr. Shriwastav, the learned counsel for the accused submitted that the evidence of the sole eye witness Dhondupuri Gosavi ( P.W.12) upon which reliance has been placed by the trial Court does not inspire confidence inasmuch as according to the said witness his statements were recorded on first, second and third days of the incident whereas according to the prosecution his statement was recorded for the first time on 27.7.2002. He further submitted that the delay in recording the statement of the eye witness is 4 fatal to the prosecution case having regard to the factual situation. The learned counsel further submitted that it is difficult to believe that the eye witness was able to see beyond the distance of 10 to 12 ft and moreover since his vision was unclear during the night and the incident had taken place at 7.30 p.m. in the month of July, it is difficult to believe that he had witnessed the incident as claimed by him. The learned counsel further submitted that the other circumstances which the prosecution claims to have been proved even if taken against the accused do not prove the offence of murder against the accused beyond reasonable doubt. He, therefore, submitted that the impugned Judgment and Order deserves to be set aside and the accused deserves to be acquitted of the offence of murder. 4. Per contra, Mr. Doifode, the learned A.P.P. submitted that the trial Court has correctly appreciated the evidence led by the prosecution and has rightly convicted and sentenced the accused for the offence of murder. According to the learned A.P.P., the evidence of the eye witness Dhondupuri 5 (P.W.12) inspires confidence and there is nothing brought on record to discredit his testimony. Moreover, the prosecution has been able to prove the presence of the accused in the village Amani at the time of the commission of the offence. The learned A.P.P. further submitted that the medical evidence clearly proves that the death of deceased Raju @ Rajendra was homicidal. He further submitted that the prosecution has been able to prove that there was blood on the stone and the knife discovered at the instance of the accused and the prosecution has been also able to prove the motive for committing the offence. 5. We have carefully considered the submissions made by the learned counsel for the accused and learned A.P.P. and perused the record. 6. In order to prove the homicidal death of deceased Raju the prosecution has examined Dr. Pandurang Laxman Tandale (P.W.5) who had conducted the post mortem on the dead body of deceased Raju. The evidence of Dr. Pandurang 6 Tandale (P.W.5) who conducted the post mortem on the dead body of Raju on 24.7.2002 discloses that the deceased had following injuries on his body. 1. Deep irregular lacerated wound on frontal side on head, size 1 ½ “ x ½ “ x ¼ “ caused by hard, blunt and rough object, horizontally. Horizontal fracture of frontal bone. Size ½ “ within 24 hours. 2. Lacerated wound on left mandible, near the chin, size ½ “ x ½ “ x ½ “. 3. Lacerated wound on the chain, size ½ x ½ x ½ “. Injury nos. 2 and 3 are caused by hard, blunt and rough object. 4. Incised stab wound between 6th and 7th intercostal space, left side of the chest, below memory region, oblique indirection, 2 ½” away from sternum cutting deeply subcutaneous tissues, fat, muscle and puncturing the plurs and pericardiam of the heart, anterior wall of the heart and posterior wall of the heart, size 2” x ½ “ x 1 ½ “ deep. 5. Incised wound on left forearm below cubital fossa. Size 4” x 1 ½ “ x 1 “. 7 6. Incised wound between 2nd and 3rd intercostal space on right side, lateral to the sternum vertically. Size 1 ½ “ x ½ “ x 1” deep to muscle, caused by hard and sharp object. 7. Incised wound below right axilla on the chest. Size 2” x ½ “ x ½ “ caused by hard and sharp object. 8. Incised wound on right inguinal, mid point, size about 1 ½ “ x 1/2” x 1” caused by sharp object. 9. Incised wound on right thigh medially, size 1/4th “ x 1/4th “ x 1/4th “, caused by sharp object. 10. Incised wound medical to the right thigh, in the centre, size 1” x 1/4th “ caused by hard and sharp object. 11. Abrasion below right knee joint. 12. Incised wound on left lubber region, back side. Size 1” x ½ “ x 1 ½ “ deep caused by sharp object. 13. Incised wound on left buttock, size 2” x 1 ½ “ x 2” deep, caused by sharp object. 14. Abrasion on right lumber region, caused by hard and rough object. 8 The injuries were caused within 24 hours and were antemortem . He also found the following internal injuries. i) Lacerated wound, irregular in centre over frotal side of head, caused by hard and blunt and rough object. ii) Fracture of frontal bone, horizontally. Size 1 ½ “ caused by hard and blunt and rough object. Iii) Intracrenial haemorrhage in frontal area of brain, caused by hard and rough object. iv) Punctured stab wound between 6th and 7th intercosatal space cutting subcutaneous tissues, muscle, plura, hearts anterior and posterior walls of ventrical, Caused by sharp object. v) Highler region, left lung, punctured by stab injury, caused by sharp object. He deposed that all the internal injuries were corresponding to external injuries. He identified his signature on post mortem report Exh. 25. He further stated that the weapon was referred to him by the investigating officer on 30.7.2002 and he had opined that the injuries could have been 9 caused by sharp weapon. He identified his signature on Certificate Exh.26 issued by him. The probable cause of death was haemorrhagic shock due to multiple grievous injuries to the vital parts of the body like heart and brain. He further deposed that he had also examined the accused on 24.7.2002 and he found the following injuries on his person. 1. Linear redish, bluish injury at the base of right index finger on the palm. Size 1”. 2. Old injury of deep bruise on the hill medically of the right leg. Size 1/4th “ x 1/4th “ caused by hard and blunt object. The injuries could have been caused by hard and blunt and rough object. The injuries were simple in nature and were caused within 12 hours. He identified his signature at Exh. 27. Nothing tangible has been brought in the cross- examination of the witness to discredit his testimony. The evidence of this witness, therefore, proves that the death of deceased Raju @ Rajendra was homicidal. 10 7. To prove the case against the accused, the prosecution has examined one eye witness viz. Dhondupuri Gosavi (P.W.12) who claims to be an eye witness. He deposed that he knew the accused as well as the deceased Raju who was his nephew. Rajupuri and his father were residing at Malegaon whereas Vilaspuri and his father were staying at village Amani. There was a dispute regarding the agricultural property for about 7 to 8 years. He further deposed that on 23.7.2002 in the evening he was sitting in front of Mahadeo Temple at Amani. About 50 persons were present for hoisting a saffron flag in front of the temple. He saw deceased Rajendrapuri and the accused Vilaspuri passing along the wall of the temple and going behind the temple. Both of them had come from the house of accused. Immediately the accused Vilas came back and entered in his house. Again he got out of his house and went near the temple. Thereafter, Rajendrapuri came running from behind the temple shouting “Bachav Bachav”. His leg slipped in one corner of Mahadeo Temple and he fell down. The accused started inflicting knife blows on Raju. Nobody went to rescue the accused. Thereafter, the 11 accused lifted a stone and threw on the head of Rajendrapuri on account of which he sustained bleeding injuries on head. His head was lying in the pool of blood. The people gathered in front of the temple went away from the spot and accused also ran away from the spot. The accused picked up 3-4 stones and ran towards village Amani. From there he went to Malegaon. Witness was confronted with the police statement in which the witness has not stated that Rajendrapuri had come there behind the temple. He could not give any reason as to why he had not stated so in his police statement. He further deposed that the police had come to village on the day of incident, on the next day and also on 3rd and 4th day of the incident. He further deposed that he had given intimation of the incident to the police on 1st, 2nd and 3rd day of the incident and on each day his statement was recorded by the police. He categorically deposed that the police did not record his statement on 27.7.2002 but he claimed that on 4th day the police had obtained his signatures on some documents. He denied the suggestion that accused was not a party to civil dispute. He admitted that he was able to see up to a distance 12 of 10 to 12 feet and that at night his vision becomes somewhat unclear. He denied the suggestion that he had not witnessed the incident and that he was deposing falsely. 8. The investigating officer Ajabrao Avchar (P.W.18) in his cross-examination stated that he did not record the statement of Dhondupuri (P.W.12) on 25.7.2002 and on 26.7.2002. The prosecution claims that the statement of Dhondupuri (P.W.12) was recorded, for the first time, on 27.7.2002. The evidence of P.W. 12 Dhondupuri has to be appreciated in the context of the categorical statement by the investigating officer that his statement was recorded on 27.7.2002. Since the witness himself states that his statements were recorded on the day of the incident and on the next three days and not on 27.7.2002 as claimed by the prosecution we find it extremely difficult to rely upon the evidence of Dhondupuri as an eye witness to the incident. In case the version of the witness that his statements were recorded on all these four days is accepted, the only inference which has to be drawn is that the prosecution has suppressed these 13 statements and has come out with the case that the statement of the witnesses were recorded, for the first time, on 27.7.2002 which is denied by the witness. Moreover, the witness has also deposed that he was able to see only up to the distance of 10 to 12 feet. There is evidence on record that there was no light at the time of the incident at the spot and incident had occurred in the month of July when ordinarily sun sets before 7 p.m... In this factual background, we find it extremely difficult to place reliance upon the evidence of Dhondhupuri that he was an eye witness to the incident. If we accept the version of the investigating agency that his statement was recorded , for the first time, on 27.7.2002 then the delay in recording the statement would be definitely fatal having regard to the categorical statement of the witness that he was present and the police came to village on the day of the incident and for a period of three days thereafter. In the case of Balakrushna Swain vs. The State of Orissa (AIR 1971 Supreme Court, 804, the Apex Court held that the unjustified and unexplained delay on the part of the investigating officer in recording the statement of the material eye witness renders 14 evidence of such witness unreliable. The ratio laid down in the said case would be squarely applicable in the present case. We, therefore, find it difficult to accept the testimony of this witness and in our considered opinion the trial court was not justified in placing reliance upon the testimony of this witness in support of the prosecution case. 9. The prosecution has also relied upon the circumstantial evidence to prove the case against the accused. The circumstance proved by the prosecution that in late evening on 23.7.2002 the accused was found in the village Amani would not be a circumstance against the accused inasmuch as the accused hails from Aman and, therefore, he does not owe any explanation for his presence in the village. The next circumstance relied upon is that since the property dispute was decided in favour of the father of the deceased the accused took revenge by killing his son. No doubt motive is a relevant fact in criminal trial but mere presence of the motive by itself is not sufficient to prove the offence against the accused. The next circumstance relied upon by the 15 prosecution is discovery of stone at the instance of the accused. We fail to understand as to how stone could have been discovered at the instance of the accused when it was lying on the spot of incident itself. At the most it can be taken as the seizure of stone from the spot which can not be the circumstance by itself which can be used against the accused. In so far as the recovery of the knife at the instance of the accused is concerned, there is absolutely no other evidence on record that knife was used in the commission of the offence since we have already disbelieved the version of Dhondupuri (P.W.12). Moreover, Dr. Pandurang Tandale (P.W.5), in his cross-examination, has admitted that the length of all the injuries was different and that except injuries 1 and 4 rest of the injuries may have been caused by the weapons of different lengths and breadths. He further admitted that all the injuries mentioned in column no. 17 of the report were straight line injuries and could not have been caused by the bent knife Article A which was shown to him. He further stated that all the injuries were having different breadth, length and depth and, therefore, there was possibility of use of more than one 16 weapon for assault. Thus, the medical evidence also does not establish the case of the prosecution that number of injuries were caused to the deceased by the knife Article A. Therefore, this circumstance also does not advance the case of the prosecution. Therefore, even if the circumstances proved by the prosecution are taken cumulatively, they do not lead to the only conclusion that it is the accused and accused alone who committed the murder of deceased Raju. Applying the principles laid down by the Apex Court in the case of Sharad Birdichand Sarda .vs. State of Maharashtra (AIR 1984 Supreme Court, 1622), we are of the considered opinion that circumstantial evidence does not lead conclusively to the only inference that it is the accused who committed murder of deceased Raju @ Rajendra. 10. For the reasons aforesaid, we find that the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code cannot be sustained. Consequently, the appeal is allowed. The impugned Judgment and Order dated 28.1.2004 passed by the Ad hoc Additional 17 Sessions Judge, Washim convicting and sentencing the appellant- accused for the offence punishable under Section 302 of the Indian Penal Code is quashed and set aside. The accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code. The accused Vilaspuri Keshaopuri Gosavi is ordered to be released forthwith, if not required in any other case. 11. Fees payable to Advocate Mr. R.R. Shrivastav are quantified at Rs. 2500/- ( Rs. Two thousand five hundred only). JUDGE JUDGE patle