1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.440 OF 2008 Balya @ Baliram Shivram More, Age 27 Years, Occ. Labour, R/o Kusumwada, Tq. Shahada, District Nandurbar (At present Nasik Road Central Prison, Nasik.) ..Appellant Versus The State of Maharashtra .. Respondent ... Smt. Manjusha Jagtap, Advocate (amicus curiae) for the appellant and Shri V.D.Godbharale, APP for the respondent. ... CORAM : S.B.DESHMUKH & S.S.SHINDE, JJ. Reserved on : June 18, 2010 Pronounced on : June 22 , 2010 JUDGMENT : (Per S.B.Deshmukh, J.) :- 1. The judgment and order of conviction of the appellant (accused) under section 302 of the Indian Penal Code ("IPC") by the learned Additional Sessions Judge, Shahada, District Nandurbar, dated 24.2.2009 in Sessions Case No.33 of 2007, thereby sentencing the accused to suffer rigorous imprisonment for life and to pay fine of Rs.500/- in default to suffer rigorous imprisonment for one month, is challenged in this appeal. 2 2. The factual matrix of the prosecution case are ; (A) Accused and victim Chaitram were brothers residing together at village Kusumwada. Complainant Bhimsing is their uncle. (B) On 26.5.2007, complainant lodged a complaint at Mhasavad Police Station alleging that the accused did not work, consume liquor and wanders in the village. That he used to demand money from the victim for consuming liquor and used to beat victim if money was not given. It is further alleged that on the day of incident at about 4.00 PM accused demanded money for consuming liquor from the victim. At about 6.00 to 6.30 PM complainant heard noise from the house of victim. He climbed on the cot and peeped into the house of the victim and saw that the victim was loudly weeping. Due to fear of the accused, the complainant kept mum. (C) Thereafter, it is alleged that the complainant heard sound of opening of the door of the house, he came out of his house and saw that the accused was forcibly pushing victim into the open portion adjacent to their house. Victim was taken in front of the house of Jairam Dattu. On receiving information, Police Patil Dharamsing arrived at the spot. Some villagers also gathered there. Victim had sustained injuries on his forehead, head, above eyes and they were bleeding. Face of victim was defaced by mud. There were not clothes on the person of victim and he was covered by quilt. According to complainant, at that time the victim 3 was alive. (D) Police Patil of the village informed the incident to Police concerned. Police arrived at the spot. Meantime the accused ran away from the spot. Victim was taken to Rural Hospital, Mhasavad, where the Medical Officer declared him dead. (E) According to complainant, he saw blood stained stone and stick lying at the spot of incident along with a blood stained shirt. The entire spot was stained with the blood. It was alleged that the victim was killed by the accused by beating him with stone and a stick. (F) On the basis of complaint, Crime No.27 of 2007 came to be registered by Mhasavad Police Station. Investigating Officer Girish Patil, Assistant Police Inspector took over the investigation. He recorded inquest panchanama. Autopsy was performed by Medical Officer. He noticed several injuries and opined that deceased had died due to cardio respiratory arrest due to hemorrhagic shock on account of rupture of spleen and head injury. (G) It is alleged that on 31.5.2007, accused, in presence of panchas made a disclosure statement. From the spot shown by him, blood stained shirt and pant came to be seized under the panchanama. Muddemal articles were sent to Chemical Analyser on 9.6.2007. Further map of the spot was also drawn by revenue authority at the instance of 4 Investigating Officer. (H) Statement of complainant Bhimsing was also recorded under section 164 of the Code of Criminal Procedure by the learned Judicial Magistrate (First Class), Shahada. (I) After completing investigation, the Investigating Officer submitted charge sheet against the accused for the offence punishable under Section 302 of IPC in the court of learned Judicial Magistrate (First Class), Shahada, who in turn, committed the case to the Court of Sessions. (J) The learned trial Judge framed charge against the accused for the offence under Section 302 of IPC. The accused denied the same and claimed to be tried. The defence of the accused is of total denial. 3. To bring home the guilt, prosecution has examined in all eight witnesses. PW 1 is Mahesh, panch of the seizure panchanama of blood stained clothes (Exhibit 13). PW 2 is Bhimsing - complainant (Exhibit 19). PW 3 is Dharamsingh - Police Patil (Exhibit 21). PW 4 is Jugal - a panch of the spot panchanama (Exhibit 22). PW 5 is Rafik - a panch of the disclosure statement made by the accused so also of recovery of blood stained shirt and pant pursuant to the said disclosure statement at the instance of the accused. PW 6 is Banobai - an eye witness (Exhibit 28), who resides adjacent to the house of victim and accused (Exhibit 28). PW 7 is Dr. Pawar, who performed post mortem on the dead body of victim 5 (Exhibit 29) and prepared post mortem notes (Exhibit 30). PW 8 is Girish Patil - Investigating Officer (Exhibit 31). 4. The learned trial Judge, after taking into consideration the evidence adduced by prosecution, statement of accused under section 313 of the Code of Criminal Procedure and after hearing arguments of respective counsel, as said earlier, convicted and sentenced the accused for the offence punishable under Section 302 of IPC. The appellant / accused aggrieved by the said decision has preferred the present appeal. 5. We have seen the charge framed by the learned trial Judge against the accused. The learned Judge has framed three points for determination in view of the charge Exhibit 3. In paragraph Nos.9 and 10 of the judgment, the learned trial Judge, after referring to the evidence of Medical Officer PW 7 Dr. Pawar has considered the post mortem report and inquest panchanama and recorded a finding that death of Chaitram is neither suicidal nor accidental and is homicidal alone. This finding of the learned Judge, in our view, is supported by the oral as well as documentary evidence led on behalf of the prosecution. 6. The most contiguous issue amongst the parties is as to who committed crime in question i.e. murder of Chaitram ? Smt. Jagtap, learned Advocate for the accused took us through the entire evidence on record. According to her, there is absolutely no evidence brought on record by the prosecution to prove the guilt, allegedly committed by the 6 accused, punishable for the offence under section 302 of IPC. She contended that PW 2 Bhimsing and PW 6 Banobai cannot be said to be eye witnesses to the occurrence alleged by the prosecution If evidence of these two witnesses is not believed, learned counsel for the accused contended that the accused cannot be convicted on the basis of the report of Serologist and alleged discovery of the stone and stick. She commented upon the judgment of the trial court with a prayer to quash and set aside the judgment and order of conviction passed against the accused. 7. Shri Godbharale, learned APP on behalf of the State has submitted that it is a case of substantive evidence against the accused. In his opinion PW 2 Bhimsing is real uncle of the accused, next door neighbour and has witnessed the incident in question. Evidence of PW 2 Bhimsing, according to him, has been corroborated by OPW 6 Banobai, who is also an eye witness to the incident. He submitted that distance between the house of PW 2 Bhimsing and place of offence is only 5 feet. House of PW 6 Banobai, according to him, is 25 feet away from the place of offence. Both these witnesses are independent and have given the account of crime committed by the accused. There is no reason to disbelieve the evidence of these two witnesses. He further submitted that evidence of these two witnesses has been corroborated by the report of the Serologist in relation to the blood stains, weapons used in the offence i.e. stone and stick and clothes which were on the person of accused at the time of commission of crime. According to him, eye witness account 7 of PW 2 Bhimsing and PW 6 Banobai has been dully corroborated by the evidence of expert. The trial Court has taken into account the material brought on record and justifiably convicted the accused. He prayed for dismissal of the appeal. 8. The entire case of the prosecution thus rests on the evidence of PW 2 Bhimsing and PW 6 Banobai. There is no dispute amongst the parties regarding relationship of accused and victim being real brothers. PW 2 Bhimsing, indisputably, is real uncle of accused and victim. First information report is lodged by PW 2 Bhimsing. It is on record at Exhibit 20. In this report, it has been made clear by PW 2 Bhimsing that he was having four brothers. Elder brother Shivram is no more. Appellant and deceased are sons of Shivram. Apart from appellant and deceased, Shivram has one daughter namely; Vasubai. Wife of appellant died two years back. Daughter of Shivram, namely; Vasubai is residing with mother of complainant PW 2 Bhimsing. According to him, appellant is neither in the employment nor working even as a labourer. He is addicted to liquor. There are complaints made by villagers of assault by the appellant and alleged threats given by the appellant. Some offences against the appellant are also registered with Police Station concerned. According to him, appellant used to demand money from deceased only for consumption of liquor. In case he could not get the money from deceased, he used to beat him. Because of the terror of appellant in the village, people in the vicinity are afraid of him. The date of incident, according to first information report is 26.5.2007. The time alleged by 8 the complainant PW 2 Bhimsing is between 6 to 6.30 PM. This report has been lodged by the complainant with the Police Station Mhasavad on 26.5.2007. Based on this report Crime No.27 of 2007 has been registered for the offence punishable under section 302 of IPC. We have seen Exhibit 20 - reported lodged by complainant in its entirety 9. Substantive evidence of PW 2 Bhimsing is important from the view point of status claimed by the prosecution of this witness as an eye witness. We have carefully gone through his evidence. There is no dispute that his house is adjacent to the house of the accused - place of incident. The distance in between these two houses is 5 feet, according to the substantive evidence of PW 2 Bhimsing. In the first information report, this distance is claimed by him at around 9 feet. suffice to note that houses of accused and deceased as well as PW 2 Bhimsing are adjacent. According to PW 2 Bhimsing in his house itself and more specifically in the front portion of his house, he runs a grocery / provisional shop. Backside of the said portion is being used by him for residential purposes. On the day of incident, he was in his shop. One Mangaram, resident of the same village was sent in search of deceased, who ordinarily works as a labourer in the village. Mangaram had gone to the place of one Dhanaraj in search of deceased. However, he returned and informed that deceased was not there. It was 3 to 3.30 PM according to this witness. Material evidence of PW 2 Bhimsing starts from this point of time. According to PW 2 Bhimsing at about 6 to 6.30 PM he heard 9 sound of "Dhap - Dhap" ( sound like assault ) from the house of the accused. On hearing the sound, he climbed on the cot in his house and peeped in to the house of accused. He saw that appellant was snatching hairs of deceased. The accused pushed deceased upto the house of one Jairam House of Jairam is situated behind the house of the accused. After this part of the evidence, PW 2 Bhimsing states that thereafter, Police Patil came there and saw the victim and then came to him and asked him to give a telephone call to the Police Station and informed that Chaitram was killed by accused. This part of evidence, according to learned APP is core part of the evidence. PW 2 Bhimsing has seen the act of snatching hairs of deceased by the accused and pushing him towards the house of Jairam According to the evidence of this witness, thereafter, Police reached at the spot at around 8.30 PM. He has further stated that when he saw dead body of Chaitram he came across the injury above the right eye, forehead and near right ear. Thereafter, Chaitram was rushed to the hospital at Mhasavad and declared dead by the Medical Officer. This witness does not forget to state before the Court that when he saw the incident, stone and stick were lying there. He has identified those articles were before the Court and shown to him by the learned Public Prosecutor. He has also shown spot of incident to police to draw the spot panchanama. While concluding his evidence, in examination in chief, he stated that at the time of incident, Chaitram was donned with green colour baniyan. He has identified the same article, which was shown to him. He also claimed that when he saw dead body of Chaitram, there was bleeding from the injuries, blood stains were found spilled from the spot 10 of incident. Learned counsel for the appellant points out cross examination of this witness. 10. In-disputably, PW 2 Bhimsing is real uncle of the appellant as well as deceased. According to his evidence, initially he heard the sound at about 6 to 6.30 PM, climbed on the cot and peeped in to the house of the accused. The distance, we have noted in between the house of the appellant and this witness is 5 feet. Story of peeping into the house of accused even if presumed to be truthful, what can be gathered from the core part of the evidence of this witness is that he has seen the appellant while snatching hairs of deceased and pushing him to the house of Jairam In our view, the use of the alleged weapons - stone and stick for hitting any part of the body of deceased is neither witnessed by PW 2 Bhimsing nor he has stated on oath before the Court. Even if the evidence of this witness is accepted, without reading the cross examination, it can be said that PW 2 Bhimsing has seen only the act of snatching hairs by appellant of deceased Chaitram and pushing him towards the house of Jairam These acts cannot be said to be offence of murder within the meaning of Section 300 punishable under section 302 of IPC. 11. We have our own reservations for the evidence of PW 2 Bhimsing. Other part of his evidence in the examination in chief, after witnessing the act of snatching hairs of deceased by the appellant with his heirs and pushing him towards the house of Jairam, Police Patil came at 11 the spot of incident and saw Chaitram and thereafter, he came to PW 2 Bhimsing and asked him to give a telephone call to Police Station concerned informing the killing of Chaitram by the appellant. This part of the evidence we shall consider along with evidence of Police Patil Dharamsingh, who is PW 3 (Exhibit 21). He states in his evidence that since 1984, he is working as a Police Patil, knows the accused who used to wander or roam in the village under the influence of liquor, does not work and used to extend threats to villagers for no reasons. According to him, appellant used to demand money from villagers to satisfy his lust of liquor. Regarding the incident in question, this witness claims in his examination in chief that it has taken place on 26.5.2007 at about 6.30 PM. Most important statement made by this witness, in his examination in chief is; " I came to know about the incident at about 7.30 PM. from Rakhamabai, grand mother of accused. She informed me about the incident. According to him on perception of the incident, he went to the spot of incident and saw Chaitram. He found Chaitram breathing little, meaning that he was alive. He noticed injuries on the person of Chaitram i.e. on eyes, forehead, chest, abdomen and head. He further claimed that thereafter, he telephonically informed Mhasavad Police Station. Police reached to the spot within 15 minutes and Chaitram was rushed to the Government Hospital Mhasavad. Thereafter, he states; " Immediately after the incident Bhimsing disclosed me that accused Baliram killed Chaitram by weapons stone and wooden stick." Thus, PW 2 Bhimsing, regarding his knowledge of death of Chaitram claims that it was informed to him by Police Patil. Not only that but we 12 may recall that PW 2 Bhimsing has claimed in the words, "Thereafter, Police Patil came there, saw Chaitram and then came to him and asked him to give telephone call to the Police Station and informed that Chaitram was killed by accused Baliram." Thus, murder of Chaitram was committed by the appellant was the information, according to PW 2 Bhimsing supplied to him by the Police Patil PW 3 Dharamsing. Contrary to this, PW 3 Dharamsing claims that PW 2 Bhimsing disclosed him that the appellant killed Chaitram by weapons - wooden stick and stone. Such contradictory evidence, that too in the examination in chief of two alleged eye witnesses PW 2 Bhimsing and PW 3 Dharamsing leads us to a conclusion that both of them must not have witnessed the occurrence / crime i.e. killing of deceased Chaitram by the appellant. We have noticed and also mentioned in the foregoing paragraphs that this evidence of these two witnesses has been accepted by the learned trial Judge to record a finding that these two are the eye witnesses and their evidence clearly and completely implicate the appellant for the offence punishable under section 302 of IPC. We may remind one more thing that in the cross examination of PW 3 Dharamsing omission / contradiction in the evidence of PW 3 Dharamsing has been brought on record, which pertains to the information of incident received by PW 3 Dharamsing from Rakhamabai as claimed by him in the examination in chief In the cross examination, he admits; "I did not state in my statement that Rakhabai told about the incident." Apart from this, we have noticed admission of this witness in the cross examination which is vitally important. We are recording the text from 13 the cross examination of this witness - "I did not witness the incident. I came to know about the incident from others." In our opinion, if the evidence of PW 2 Bhimsing and PW 3 Dharamsing is appreciated in its proper perspective, only logical conclusion can be drawn that neither PW 2 Bhimsing nor PW 3 had witnessed the killing of Chaitram either by stone or by stick at any point of time by the appellant. Both of then cannot be said to be the eye witnesses. Not only this but both of them are just referring each others as a source of information. PW 3 Dharamsing, apart from PW 2 Bhimsing claims that he has received the information regarding incident from Rakhabai, grand mother of the appellant. Thus clear admission by PW 3 Dharamsing shows that source of his information regarding the incident was neither PW 2 Bhimsing nor Rakhabai but others. On the background of the case, others means any of the villagers of the vicinity. In our view, evidence of PW 2 Bhimsing, as an eye witness, needs to be discarded. Evidentiary value of the evidence of PW 3 Dharamsing, in our view is also of no importance. He has made a stray statement in his examination in chief that the accused killed Chaitram. We are not in a position to attach any importance to such a stray statement or a single line evidence. Even it is not the case of the prosecution that PW 3 was / is an eye witness to the incident. Suffice to note that even source of knowledge of the incident to PW 3 Dharamsing is different and PW 2 Bhimsing is also different. 12. Let us now turn to the evidence of another eye witness claimed by the prosecution PW 6 Banobai (Exhibit 28). Indisputably, her 14 husband is Sarpanch of village since 2003. She knows the appellant and deceased. She also claims that Chaitram was the daily wage labour, however, the appellant never worked and earned. According to her, appellant was roaming around under the influence of liquor. She claims to be neighbour of appellant / accused. From the material brought on record, it is not in serious dispute that distance in house of PW 6 Banobai and place of incident is around 28 feet. It is her claim that the incident took place at about 6 to 6.30 PM on 26.5.2007. She has witnessed the incident through window of her house. According to her, entire spot is visible from the said window. She has testified that after return of Chaitram from work to the house, accused asked him to bring the liquor. Chaitram refused. Chaitram went away and returned to the house. She further testified that on return, the appellant started beating Chaitram with stone and stick. Appellant assaulted Chaitram above his eyes, forehead and face. Entire face of Chaitram was stained with blood. Thereon, appellant pushed Chaitram out of his house by snatching his heirs. She further claimed that when she saw there were no clothes on the person of Chaitram. According to her, on earlier day, appellant had threatened Chaitram to kill if money was not given for liquor She further states that after the incident, Police Patil came there, villagers also gathered on the spot. Her husband also came there. Phone message was given about the incident and injured Chaitram was taken to the hospital. In the cross examination PW 6 Banobai admits that she was working as Anganwadi Sevika. There are about six members in her family. 15 She gave account of her daily routine and the duties which she is required to discharge as household work, service as a Anganwadi Sevika, timings of the duties, time required for cooking in the morning and evening etc. She says that there are three rooms in the house, one is meant for cooking (kitchen), another room is used for watching the television and dining. According to her house of the accused faces towards Eastern side so also her own house. What is important in her cross examination and brought on record on behalf of the defence is her admission, which we would like to record in her own words - "Nothing is visible of the house of accused from my house." In our opinion, this is a vital admission which takes away the claim of PW 6 Banobai to have witnessed the occurrence of alleged killing of Chaitram by the appellant. Another question was put to her regarding the height of window and she claimed that window was of her own height and she was able to look the house of accused from the window. We have seen the entire cross examination of this witness. A suggestion was given to her that she is deposing falsely because the appellant had made a complaint that she supplied unnutritious food to the students of Anganwadi. We have also noticed that daughter of accused was beneficiary of the Government' s scheme as a