{1} Cri. Appeal No.349/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.349 OF 2010 Devidas s/o Deepak Puri APPELLANT Age-30 years, Occ-Agriculture R/o Parner, Tq-Parner Dist-Ahmednagar VERSUS The State of Maharashtra RESPONDENT ....... Mr.Satej S.Jadhav, h/f Mrs.S.S.Jadhav, Advocate for appellant Mr.S.D.Kaldate, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 8 th AUGUST 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Challenge in this appeal is to the conviction of the appellant for an offence punishable u/s 302, 452 and 325 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.1000/- in default to undergo further RI for six months for the first offence, to suffer RI for 5 years and to pay fine of Rs. 1000/-, in default to suffer further RI for 6 months for second offence and the same sentence as is awarded for second offence is also awarded for the third offence, by Additional Sessions Judge, {2} Cri. Appeal No.349/2010 Ahmednagar, in Sessions Case No.216/2008, vide judgment and order dated 13.08.2010. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- a) On 13.07.2009 at 9.15 am, PW-15 Police Head Constable Shaikh Pahilwan, received a telephonic message from PW-12 Dattatraya Bedekar, PSO Parner police station informing that two persons were lying in injured condition near a temple and he was directed to verify the same. Accordingly, PW-15 visited Trimbkeshwar temple and found that PW-1 Deepak was weeping and his clothes were soaked with blood and his son and wife were lying in injured condition. The injured were shifted to Rural Hospital, Parner and after providing preliminary treatment, they were referred to Civil Hospital, Ahmednagar. b) On the same day, at about 10.00 a.m. PW-16 PSI Rajendra Mali, on directions, reached civil hospital and recorded complaint (Exhibit-36) of PW-1 Deepak. Thereafter, an offence, at Crime No.205/2008 came to be registered on the basis of complaint (Exhibit-36), against the appellants and others. c) Dr.Pravin More, PW-11 examined the injured Prashant and injured Nanda (PW-4). PW-11 Dr.More, noticed 8 injuries on the person of Prashant and 7 injuries on the person of Nanda, {3} Cri. Appeal No.349/2010 which were in the nature of contusions, CLWs and fractures. Accordingly he issued medical certificates (Exhibit-63 & Exhibit-64). During the medical examination of PW-1 Deepak, contusion over left thigh and blunt trauma to right shoulder were noticed. Accordingly, medical certificate (Exhibit-65) came to be issued. Considering the nature of injuries sustained by injured Prashant and Nanda (PW-4), they were referred to Sasoon Hospital, Pune. d) The appellant and original accused No.2 and 3 came to be arrested on 13.07.2008 and on the same day statements of certain witnesses came to be recorded. The remaining accused came to be arrested on 14.07.2008 and clothes on their person came to be seized, except the clothes of the appellant. The accused were referred for medial examination. Thereafter, Spot Panchanama (Exhibit-77) came to be drawn and one axe (Article-1), one iron rod (Article-2), two sticks (Articles 3 and 4) and sample of blood came to be seized from the spot. e) While in custody, the appellant made a disclosure statement (Exhibit-79) on 15.07.2008, which led to discovery of an axe and his clothes, which came to be seized from his house vide seizure Panchanama (Exhibit-80). Original accused No.4 Vasant also made a disclosure statement (Exhibit-81), which led to the discovery of 2 axes from the house of the accused No.4, which came to be seized vide seizure Panchanama (Exhibit-82). Clothes {4} Cri. Appeal No.349/2010 on the person of complainant Deepak also came to be seized vide seizure Panchanama (Exhibit-85). f) Thereafter, statement of injured Nanda (PW-4) came to be recorded. Injured Prashant expired on 21.07.2008. Accordingly, an offence punishable u/s 302 of the Indian Penal Code came to be added in the offence. On 22.07.2008, Inquest Panchanama came to be drawn on the dead body of Prashant and thereafter the dead body was sent for postmortem examination. g) PW-14 Dr.Ajay Tavare, performed postmortem on the dead body of Prashant. Dr.Tavare, PW-14, noticed in all 37 injuries on the person of the deceased which were in the nature of abrasions, stitched wounds, multiple abrasions, Linear abrasions and infected wounds. On internal examination Haemotoma in scalp over right front to temporo parietal region, mid parietal region posteriorly, mid occipital region superiorly bright red and left occipital region of bright red so also Suibarachnoid hemorrhage over left parieto occipital region and post contusion necrosis of right parieto occipital lobe, were noticed. The medical officer opined that the cause of death was due to complications resulting from multiple injuries. Accordingly, Postmortem report (Exhibit-73) came to be issued. According to the medical officer, injury No.3 to 9, mentioned in column No.17, are corresponding to the internal injuries found on the head. It was further opined that the injuries found on the person of the deceased are sufficient to {5} Cri. Appeal No.349/2010 cause death in ordinary course. h) During further investigation, on 13.07.2008, the seized property was forwarded to the CA. In due course the CA reports (Exhibit-84 to 93) were received. Further to the completion of the investigation, charge sheet came to be filed against all the accused before JMFC, Parner. g) On being committal of the case to the Court of Sessions, trial court framed charge (Exhibit-16) against all the accused persons, including the appellant, for an offence punishable u/s 143, 147, 148, 149, 302 r/w 149, 307 r/w 149, 323 r/w 149, and u/s 452 of the Indian Penal Code and u/s 33 (1) (3) r/w 135 of the Bombay Police Act, to which the accused pleaded not guilty and claimed to be tried. Prosecution, in support of its case, has examined in all 16 witnesses. The accused have also examined two witnesses in their defence. On appreciation of the evidence on record, trial court acquitted original accused No.2 to 7 of all the charges while convicted the appellant, as aforestated. Acquittal of the original accused No.2 to 7 has not been challenged either by the State or by the original complainant. 3. Out of the 16 witnesses examined by the prosecution, PW-2 Digambar-a Pancha witness to the spot Panchanama, PW-3 Balu Aute-Pancha witness to the seizure of clothes of accused other than appellant, PW-5 Sitaram- Pancha witness to the seizure {6} Cri. Appeal No.349/2010 of clothes produced by the complainant, PW-6-Balu Kavthale Pancha witnesses to the memorandum statement of accused Pradeep and seizure of weapons at his instance, PW-7 Uttam- Pancha witness to the memorandum statement of the appellant and seizure of axe at his instance and PW-10 Chandrakant-an independent witness, have not supported the prosecution case. 4. The pivot of the prosecution case revolves round the evidence of injured eye witness PW-1 Deepak, PW-4 Nanda and medical evidence of PW-11 Dr.More and PW-14 Dr.Tavare. 5. For better appreciation of the submissions advanced before us by learned counsel for the appellant and learned APP for respondent State, it would be appropriate to advert to the evidence of material witnesses examined before the trial court. 6. PW-1 Deepak Puri, states that he was residing in a house within the precincts of Trimbakeshwar Temple at Parner along with his wife PW-4 Nanda and son Prashant (deceased). The appellant is his elder son from his first wife. Original accused No.7 Ujjwala is wife of the appellant and the other accused are close relatives of the appellant. Since two years prior to the incident there was dispute between himself and the accused over partition of the landed property belonging to the temple, as the accused were demanding share in the said property to which he was not ready. Two months prior to the incident a quarrel had taken place {7} Cri. Appeal No.349/2010 between the appellant and the deceased, however, the same was not reported to the police. On 13.07.2008, while he, his wife PW-4 Nanda and son Prashant (deceased) were inside the house, at 8.30 am. At that time the appellant, Accused No.3 Pradeep, Accused No. 2 Vilas & Accused No.7 Ujjwala who were armed with axe, Accused No.4 Vasant & accused No.5 Shobha who were armed with sticks and accused No.6 Pushpa who was armed with iron rod, entered into his house and started abusing them. He had informed the accused that it was of no use as he was not going to partition the property. Thereafter, the accused started assaulting him, his wife PW-4 Nanda and son deceased Prashant. Original accused No.4 Vasant assaulted him with stick. Original accused No.7 Ujjwala assaulted PW-4 Nanda with axe while other two lady accused assaulted Nanda with sticks and iron rod. The appellant, and original accused No.2 and 3 assaulted Prashant with axe on all over his body. Both legs and the hands of Prashant were cut. After the assault his wife PW-4 Nanda and Prashant, became unconscious and they were lying in a pool of blood. At that time some religious rituals were being performed in the grave yard and a loud speaker was also engaged for the same. He came out of the house and after sometime one policeman came there and shifted all of them to Government Hospital at Parner. He had narrated the incident to the said policeman. Thereafter they were taken to civil hospital where his complaint came to be recorded and they came to be shifted at Sasoon Hospital, Pune. Thereafter he returned to Parner. His clothes were soaked with blood. In his presence spot {8} Cri. Appeal No.349/2010 Panchanama was drawn and the weapons of assault were seized. 7, In cross examination, PW-1 states that prior to the incident appellant used to reside in one room in front of his house. The programme of religious rituals was going on at a distance of 50/60 feet from the spot. The said place is visible from the spot vis-a-vis the spot is visible from the said place. Though he admits that on hearing shouts two persons had came there, however denies that at that time he was crying inside the house. He was not able to answer as to who had informed the incident to the police. He admits that when the said two persons had came there an axe was in his hands. He admits that he, appellant and his brothers had received a notice of eviction of the said premises on 09.03.2007. He further admits that deceased Prashant had misbehaved with the wife of the appellant and hence, the appellant had left the said premises two years prior to the incident. He further admits that even thereafter also the deceased had teased the wife of the appellant. He also admits that certain crimes of theft of mobile phones and motor bikes were registered against deceased Prashant in Parner police station. Deceased Prashant was also involved in the offences of teasing and forcing women. He also admits that deceased Prashant was known in the police station due to his terrorist activities. He has categorically admitted that when the police had came to his house, his clothes were soaked with blood. Though he has denied that some persons had approached him on hearing his cries, yet the said fact found {9} Cri. Appeal No.349/2010 recorded in his complaint at portion “B”. He denied that when constable Shaikh had came to his house, he was crying inside the house and was holding a blood stained axe in his hands. He admits that the deceased and he himself used to drink liquor but denied that on the day of the incident they had consumed liquor and quarrel had taken place between them on account of Prashant teasing the wife of the appellant and in a hit of anger both of them had assaulted each other and had sustained serious injuries. He also denied that during a scuffle between himself and the deceased, PW-4 Nanda had intervened and hence sustained serious injuries and he has implicated the accused in a false case to save themselves. PW-1 Deepak further admits that deceased Prashant was not doing any work, however asking him to give money for his ill-habits of drinking liquor. At times, the deceased used to assault him on his refusal to part with money and there were frequent quarrels between them due to the said behaviour of the deceased. Omission is proved in his cross examination that it does not find place in the complaint that after the incident he had came out of the spot and had sat on the platform. He had alleged in the complaint that hands and legs of the deceased were cut during the assault. 8. Our attention is drawn by learned counsel for the appellant towards the fact that though PW-1 had not sustained any bleeding injury, yet when police had arrived at the spot, clothes of PW-1 were soaked in blood and he was holding axe, {10} Cri. Appeal No.349/2010 which was stained with blood. It is further brought to our notice that the said axe was not seized by the police and consequently was not sent for chemical examination. Learned counsel for the appellant further brought to our notice that PW-1 has not stated in his evidence as to when he had collected clothes of his wife PW-4 Nanda. We would discuss the effect of the evidence of PW-1 in the later part of the judgment. 9. PW-4 Nanda, states in respect of the incident, on the similar lines as stated by PW-1 Deepak. However, she is specific to the extent that the appellant had assaulted Prashant with axe and had cut his legs so also the accused had assaulted Prashant on his head. She states that due to assault on her, she became unconscious and regained the same in Sasoon Hospital, Pune. In cross examination she states about dispute over the property. Though her husband PW-1 Deepak has categorically stated about the criminal background of Prashant, yet she denied about any criminal antecedents of the deceased. She further admits that her husband had contacted her in Sasoon Hospital, Pune, before her statement came to be recorded by the police. She further admits that PW-1 Deepak, her husband had informed her about lodging of complaint by him and the contents therein. Omission is duly proved in her cross examination that she had not disclosed in her police statement that the appellant had cut legs of the deceased. 10. Learned counsel for the appellant, by pointing out the {11} Cri. Appeal No.349/2010 evidence of PW-4 Nanda, has urged that evidence of PW-4 is not in consonance with the evidence of PW-1. It is further urged that PW-4 has not stated in her evidence that she was shifted to Ahmednagar from Parner and from Ahmednagar to Pune. She has also not stated that her clothes, which were stained with blood were handed over by her to PW-1 to deposit the same with police. 11. PW-15 Shaikh Pahilwan states that after receipt of information from PSO Parner police station, he had visited the place of incident and when he had reached there it was noticed that PW-1 Deepak was weeping inside his house and clothes on his person were soaked with blood so also deceased and PW-4 were found lying in injured condition and they had sustained bleeding injuries on hands and legs. He further states that while the injured were being shifted to hospital, PW-1 Deepak had informed him as to how the incident has occurred. In cross examination he states that if names of accused are known then it is imperative to inform the same immediately to the police station. He states that though he had not given report about his visit to the spot, yet he had orally informed the police station. He denied that when he reached at the spot he had noticed PW-1 Deepak on a platform and he was crying and at that time he was holding an axe in his hands and some weapons were lying there. 12. Our attention is also drawn towards the evidence of PW-12, Bedekar, who was PSO on 13.07.2008. He admits that {12} Cri. Appeal No.349/2010 entries at serial No.15 and 16 dated 13.07.2008 (Exhibit-68 and 69) were in his handwriting. He states that he had directed PW-15 Shaikh to go to the spot. He further states that PW-15 Shaikh had informed him about the incident and station diary entry No.16 has been effected to that effect. 13. Though prosecution has not examined all the witnesses as per the list of witnesses, yet the defence has examined two of them in their defence, who have not supported the prosecution case. 14. We have heard learned counsel for the appellant followed by learned APP for respondent State. Learned APP supported the findings recorded by the trial court while convicting the appellant. 15. Learned counsel for the appellant at the outset, draw our attention to station diary entry No.15 (Exhibit-68), which states that it was informed by one Auti on phone that one male and one female were lying in injured condition and it is necessary to shift them to hospital. This entry further discloses that immediately PW-15 was directed to proceed to the spot. PW-15 had informed what he learnt from PW-1 Deepak and entry of the same was taken at Entry No.16 in the station diary. Learned counsel for the appellant urges that Station Diary Entry No.16 was recorded immediately on receipt of information by PW-15 from PW-1. {13} Cri. Appeal No.349/2010 Learned counsel for appellant urges that the entry No.16 (Exhibit-69) indicates that PW-1 had narrated the incident as it is to PW-15 and according to PW-1 he had disclosed names of the assailants to PW-15, which PW-15 had intimated to the police station and accordingly entry was effected. However, the contemporaneous record is conspicuously silent as regards the names of the assailants. If in fact names of the assailants were disclosed by PW-1 to PW-15 and PW-15 in turn had intimated the names of the assailants to PW-12 PSO, then the said names should have been mentioned in Station Diary Entry No.16. In this respect, admission given by PW-12 PSO Bedekar play a very vital role, who has in categorical terms admitted that PW-15 had not disclosed names of the assailants and hence the names of the assailants are not mentioned in entry No.16. Thus, since inception, the investigation was conducted in doubtful manner. 16. Our attention is further drawn towards the omissions proved in the cross examination of PW-4, in respect of the assault by the appellant on the deceased. In substance, from the omissions brought on record in the cross examination of PW-4 Nanda, we are of the view that the evidence of PW-4 Nanda is not reliable and hence needs to be discarded. 17. Now, the question remains for our consideration is as to whether the evidence of alleged eye witness PW-1 Deepak is sufficient to convict the appellant for an offence punishable u/s {14} Cri. Appeal No.349/2010 302, 452 and 325 of the Indian Penal Code or not. Before we embark to discuss the evidence of PW-1, we think it appropriate to consider the vital admissions given by PW-11 Dr.More, who, in categorical terms has stated that the injuries found on the person of deceased Prashant are possible from blunt side of weapon. This admission is not a chance admission given by PW-11 Dr.More in his cross examination, however, he has stated so in his examination in chief while explaining the injuries on the person of the deceased. In view of the medical evidence, now the evidence of PW-1 and PW-4 will have to be considered, who have came with a specific case that the appellant had assaulted deceased Prashant with an axe. Whereas, the medical evidence falsifies the evidence of assault by axe, as no chop or cut or even incised wound was noticed on the person of the deceased. 18. In the light of medical evidence, it is necessary to test the evidence of PW-1 Deepak in respect of assault by the appellant. As pointed out by us above, PW-1 has nowhere stated that the accused who were holding axe had also assaulted Nanda and hence convicting the accused for inflicting injuries on the person of Nanda, evidence of PW-1 is of no avail for the prosecution. PW-1 has also stated that during the assault, the appellant and other accused had cut legs and hands of the deceased, however the medical evidence falsifies this evidence, as no incised or chop wound was noticed on the hands and legs of the deceased by the medical officers. Moreover, certain omissions are also proved in the {15} Cri. Appeal No.349/2010 evidence of PW-1 Deepak that he has not mentioned in the complaint that during the assault hands and legs of the deceased were cut. Thus, in view of these facts, it is highly risky to accept the evidence of PW-1 as true and trustworthy. 19. Evidence of PW-1 Deepak also requires to be considered in the light of other circumstantial evidence as evidence against the appellant is recovery of weapon, which is not proved by the Panch witness to the disclosure statement and seizure Panchanama of recovery of weapon at the hands of the appellant. Apart from it, there is no reference that the two axes recovered vide Panchanama at Exhibit-81, were stained with blood. So also the seizure Panchanama is conspicuously silent as to whether the said axes were sealed at the spot and were sent to CA in the same condition. Though CA report (Exhibit-84) indicates that blood of “A” group was found on the axe, yet the recovery Panchanama is silent in respect of finding of blood on the said axe. Apart from it, Spot Panchanama (Exhibit-77) indicates that one axe was seized from the spot, which was stained with blood, however the same was not sent for chemical analysis. Even PW-1 Deepak has categorically admitted that when the police came at the spot, he was found sitting in his house with the axe in his hands, which was stained with blood, this axe was also not referred for chemical examination. Thus, though there is reference of four axes, yet the prosecution has accounted for only three axes and the axe which was in the hands of the complainant-PW-1, is not accounted for by {16} Cri. Appeal No.349/2010 the prosecution. In such circumstances, recovery of axe at the hands of the appellant cannot be relied upon. Apart from it, though the appellant was put under arrest on 13.07.2008, yet his clothes were not seized immediately, however the same were seized on 15.07.2008. Thus, the recovery of clothes of the appellant is also doubtful. 20. As the seizure of the clothes and weapons at the hands of the appellant is doubtful, even the seizure of the clothes produced by PW-1 under Panchanama (Exhibit-83) is doubtful. As pointed out by us above, the said clothes were produced by the complainant in the police station on 15.07.2008 and when and how the complainant collected the clothes of his wife PW-4 is nowhere brought on record. Even the evidence of PW-4 is also silent on this aspect. 21. Learned counsel for the appellant has brought to our notice that the complainant-PW-1 had not sustained any bleeding injury then how the clothes on his person were soaked in blood is a question remained unexplained. In any event, the clothes produced by the complainant were not identified before the Court. 22. It is a settled legal position that conviction can be based on the evidence of solitary eyewitness, provided that it inspires confidence and the court finds it reliable and trustworthy. In this respect, we may usefully refer the observations of the Apex {17} Cri. Appeal No.349/2010 Court in “Yakub Ismail Bhai Patel V/s State of Gujrat” (2004) 12 SCC 229. The Apex Court has observed in the said judgment as follows: “45.