drp {1} Cri. Appeal No.399/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.399 OF 2009 Sk.Sayed s/o Shaikh Badshah APPELLANT Age-50 years, Occ-Labour R/o Village Karanjala, Tq-Ambad, Dist-Jalna VERSUS The State of Maharashtra RESPONDENT ....... Mrs.Sabahat Kazi, Advocate for appellant (appointed) Mr. K.G.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] Reserved on : 31.01.2011 Pronounced on : 08.02.2011 JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant has challenged the judgment dated 31.03.2009, passed by Adhoc Additional Sessions Judge-I, Jalna, convicting the appellant for the offence punishable u/s 302 r/w 149, 147 r/w 149, 148 r/w 149, 323 r/w 149 and 504 r/w 149 of the Indian Penal Code and sentencing him to suffer imprisonment drp {2} Cri. Appeal No.399/2009 for life, RI for one year on two counts and RI for three months on two counts, respectively, with default stipulations. All the substantive sentences are directed to run concurrently. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - a) PW-13, Dadarao Kondiram Bankar, PSO who was attached to Gondi police station, had registered an offence at Crime No.15/2004, on 28.02.2004 on the basis of complaint (Exhibit-46), lodged by PW-5 Ruksana, against the appellant and others for an offence punishable u/s 302, 147, 148, 149 and 504 of the Indian Penal Code. b) Investigation of the said crime was entrusted to PW-12 ASI Shivaji Bhanudasrao Atole, who visited the scene of offence. Thereafter, Spot Panchanama (Exhibit-48) was drawn in presence of Panch witnesses. One plastic shoe (Article No.3), blood mixed soil and plain soil was collected from the scene of offence. Inquest Panchanama (Exhibit-88) was drawn on the dead body which was found on the spot. Thereafter, the dead body was referred to Rural Hospital, Ambad for Postmortem. During the investigation statements of certain witnesses were recorded. Thereafter, further investigation was handed over to PW-11 PI Amrut Vasantrao Deshmukh. drp {3} Cri. Appeal No.399/2009 c) Dr.Jagannath Talwadkar (PW-10) had conducted the post mortem on the dead body on 29.02.2004. Following external injuries were noticed on the dead body- 1. CLW on left upper and lateral side of lip size ½ x ½ x ¼ cm caused by hard and blunt object. 2. Incised wound at right upper arm of size 4 cm X 2 cm deep to muscle tissue and boney with evidence of fracture of right humurus upper one third caused by sharp object. 3. Incised wound at right lower leg lower one third on posterior aspect of size 7 cm X 2 ½ cm deep to muscle tissue and bone with evidence of fracture of tibia and fibula lower one third caused by sharp object. 4. Incised wound at lest lower leg. Lower one third laterally of size 6 cm X 2 ½ cm into deep to muscle tissue and bone evidence of fracture to tibia and fibula caused by sharp object. 5. Avulsion of skin at left anterior superior illiac spine of size 1 x 1 cm. The Medical Officer has opined that the probable cause of death was cardio respiratory arrest due to hemorrhagic shock due to multiple injuries and multiple fracture of bones. It is also opined that the injuries found on the person drp {4} Cri. Appeal No.399/2009 of the deceased were sufficient to cause his death in natural course. Accordingly, Postmortem report (Exhibit-58) was prepared. The Medical Officer was of the opinion that the injuries noticed on the dead body can be possible by sharp weapon like scythe and axe. d) On 01.03.2004 onwards further investigation was handed over to PW-11 Amrut Deshmukh, Police Inspector. Thereafter statements of certain witnesses were recorded and appellant and other accused were put under arrest. While arresting the appellant, arrest Panchanama (Exhibit-75) was drawn and at that time clothes on his person were also seized under the same Panchanama. On 02.03.2004, statements of certain other witnesses were recorded and one accused was arrested. While in custody, on 03.03.3004, memorandum of voluntary statement (Exhibit-74) of the appellant was recorded in presence of Panch witnesses, which lead to recovery of an axe from the house of the appellant, which was seized under Recovery Panchanama (Exhibit-79). Thereafter, the seized articles were referred to CA for analysis along with covering letter (Exhibit-80). After receipt of CA reports (Exhibit-81 and Exhibit-82), and on completion of the investigation, charge sheet was submitted against the accused before JMFC, Ambad. e) It appears that on being committal of the trial, the drp {5} Cri. Appeal No.399/2009 accused were released on bail and thereafter charge (Exhibit-10) was framed against all the accused persons. It further appears that after the charge (Exhibit-10) was framed the appellant and other accused had jumped the bail and were absconding. It also appears that after the appellant was arrested and brought before the court, trial of the appellant was separated from other accused, and charge (Exhibit-30) came to be framed against the appellant for an offence punishable u/s 147, 148, 302 r/w 149, 504 r/w 149 and 323 r/w 149 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. f) It appears that, to substantiate the charges leveled against the appellant, the prosecution has examined in all 13 witnesses. The appellant has examined DW-1 Sahebrao Bankar, in his defence. Defence of the appellant was of alibi and of total denial. On appreciation of the evidence, the trial court accepted the evidence of the prosecution and discarded the defence led by the appellant and convicted him accordingly. The said judgment of conviction is under challenge in this appeal. 3. For better appreciation of the rival submissions, it may be useful to advert to the evidence of material witnesses, examined before the trial court. drp {6} Cri. Appeal No.399/2009 4. It is in the evidence of PW-5 Ruksana Shafiq Sayed, complainant and eye witness, that deceased Jagumiya was her father. The appellant and other accused were residing near their residential place. On the date of the incident, she, along with her father (deceased) was returning from their field situated on Ambad road. At that time appellant and 5 other accused came in a bullock cart and were telling her father (deceased) that the open place in front of his house was owned by them. At that time appellant was holding scythe, accused Hanif was holding axe and other accused were holding sticks. All the accused assaulted her father while one of the accused had gagged her mouth. Appellant assaulted on both the legs and stomach of her father with scythe and accused Hanif assaulted on the right leg and stomach of her father with axe. Both the legs of her father were cut. Her father had fallen down. Thereafter, the appellant and other accused left the spot in the same bullock cart. She has further stated that after the appellant and others left the spot, she approached one Gafoor Mamu (PW-6) and requested him to go to the spot and stay with her father. Thereafter, she went to Hadgaon by jeep from where she walked to Gondi police station and lodged a report (Exhibit-46) in Gondi police station. She, came to the spot along with the police and spot Panchanama was drawn in her presence by the police. She identified the knife before the Court as the same by which the appellant had assaulted her father. It transpired in her cross examination that the appellant is drp {7} Cri. Appeal No.399/2009 her cousin uncle. She has admitted that there was long standing dispute between her father and the appellant and his family members over the open space of land in front of their house. She denied that a quarrel had taken place between the deceased and appellant in which the deceased had assaulted the appellant due to which the appellant was unable to walk properly. Omissions are proved in her cross examination that she has not stated in the complaint that the accused had arrived at the spot in a bullock cart and it also does not find place in the complaint that the appellant had threatened of dire consequences had the land is not handed over to them. She has admitted that the place of incident is at the distance of about 1500 feet from her house. She has admitted that even after the accused left the spot after the assault, she could not call anybody as she was frightened. She also admitted that the inmates of the adjoining houses did not come at the spot when the assault was going on. She has stated that she was present at the spot along with PW-6 Gafoormiyan, while the spot Panchanama was being drawn and she had also signed the spot Panchanama. She denied that her father was one of the suspect in a murder of one Sahebrao Amte and due to fear her father was not residing in the village and was residing at Mumbai. She has further denied that on the day of the incident, her father had been to the village to sale the disputed land situated in the village. She denied that on the day of the incident the appellant was not present at the spot. In further cross examination, she has denied that she came to know about the assault on her father from drp {8} Cri. Appeal No.399/2009 one Datta Satam-village Sarpanch and she was not present at the spot, at the relevant time. 5. It is in the evidence of PW-6 Gafoormiyan, that he came to know about the incident from PW-5 Ruksana. Thereafter he came to the spot and sent PW-5 Ruksana to lodge the complaint in police station. He was present at the spot when the police and PW-5 Ruksana came together at the spot. He has admitted in his cross examination that the dead body of Jagumiya (deceased) was lying at the spot when the spot Panchanama was drawn, however the same is not mentioned in the spot Panchanama. He has further admitted that the spot Panchanama does not mention that he was present at the spot when the police arrived at the place of incident. 6. It is in the evidence of PW-8 Rambhau Pradhan, that the incident occurred on 28.02.2004, which was Saturday, a day of weekly bazar of village Sukapuri, which is at the distance of 7 km. The incident occurred around 11.30 a.m. and at that time he was present at Karanjala Phata. He saw that the deceased and PW-5 Ruksana were coming from the side of their field and they were followed by the appellant and others. The accused were holding sticks, scythe and axes. There was old dispute between the deceased and the appellant and his associates. He saw that the accused were speaking with Jagumiya (deceased) and while they were talking with the accused. They started assaulting Jagumiya drp {9} Cri. Appeal No.399/2009 with the weapons in their hands. Daughter of Jagumiya (PW-5) was shouting for help. She was also beaten with fists and kick blows. Jagumiya fell down on the ground. He has stated that the appellant had assaulted Jagumiya with scythe. Jagumiya died on the spot. In his cross examination he has stated that the spot of the incident was invisible from the place where he was standing. He has admitted that the appellant, Sayyed and one Suleman are real brothers. He has further admitted that Jagumiya (deceased) was not permanently residing at village Karanjala, however occasionally he used to visit Karanjala. He denied that he was on inimical terms with the brother of accused, as criminal case initiated by the brother of the appellant was pending against him in Ambad Court. 7. We are not inclined to rely on the testimony of this witness as an eye witness to the incident. As there is no reference in the evidence of PW-5 Ruksana that at the time of the alleged incident, this witness was present at the spot or at some distance. Further, as per the evidence of PW-5 Ruksana the appellant and others came in a bullock cart and intercepted her father (deceased) and herself and then her father was assaulted. After assaulting her father the accused had left the spot in the same bullock cart. Whereas there is no reference of any bullock cart in the evidence of PW-8 Rambhau Pradhan. Further PW-8 only speaks about the assault by the appellant with scythe on Jagumiya while he does not speak about weapons allegedly used by the associates of the drp {10} Cri. Appeal No.399/2009 appellant, by which they assaulted Jagumiya (deceased). Ultimately, according to PW-5 Ruksana as her mouth was gagged by one of the accused and hence she was unable to shout. Moreover, she has also stated that even after the incident was over, she could not shout for help due to fear. Whereas PW-8 states that his could notice the incident due to the shouts of PW-5 Ruksana. Considering these contradictions, we are of the opinion that evidence of PW-8 is not the reliable evidence. In the premise, at this stage only, we discard the same. 8. It transpired from the evidence of PW-13 Dadarao Bankar, ASI, who had registered the offence on the basis of complaint lodged by PW-5 Ruksana, that PW-5 Ruksana lodged the complaint (Exhibit-46) on 28.02.2004 at about 2.30 p.m. Thereafter, she remained in the police station till arrival of her relatives from Mumbai. Till arrival of relatives of Ruksana, in late night, she was in the police station. Though she was not injured yet she was in a frightened condition. 9. Surprisingly, PW-13 is a police witness and the fact that PW-5 Ruksana was in the police station since lodging of the complaint till arrival of her relatives in late night, was stated by him in cross examination, however he was not declared hostile though he has stated contrary to the prosecution story put forth in the evidence of PW-5 Ruksana, PW-6 Gafoormiya and PW-12 Shivaji Atole that Rukasana was present at the spot at the time of drp {11} Cri. Appeal No.399/2009 drawing of spot Panchanama and she also identified the dead body of her father. Due to the admissions given by PW-13 in his cross examination, the evidence of PW-5 Ruksana, PW-6 Gafoormiya and PW-12 Shivaji became doubtful. It is a well settled law that if a witness supports the prosecution case in examination in chief and during cross examination supports the defence and brush out the case made out by the prosecution, then even after cross examination of the witness is over, he can be declared hostile and the admissions given by him in the cross examination can be clarified after declaring him hostile or by re-examining him. This has not been done in the present case and hence the admission given by PW-13 remain intact. The admissions given by PW-13 in his cross examination are required to be considered while assessing the creditability of other witnesses. 10. In the light of evidence of material witnesses discussed above, we have heard learned counsel for the appellant followed by learned APP. Learned APP supported the judgment of conviction and urged for dismissal of the appeal by confirming conviction. 11. During the course of submissions learned counsel for the appellant draw our attention towards the evidence of PW-8 and urged to discard his evidence. We are in agreement with the submission advanced by learned counsel for the appellant that no reliance can be placed on the evidence of PW-8 Rajabhau. Once, evidence of PW-8 is discarded, then remained the evidence of sole drp {12} Cri. Appeal No.399/2009 eye witness PW-5 Ruksana and circumstantial evidence. Learned counsel for appellant further urged that the evidence of PW-5 Ruksana cannot be accepted as an evidence of eye witness, as the same is not supported by the medical evidence. Ruksana has stated that the appellant had assaulted her father with scythe on arms, legs and stomach, however the Postmortem report (Exhibit-58) indicates that no injuries were found on the stomach of the deceased. Though there is exaggeration in the evidence of PW-5 Ruksana and she has embroidered her version, yet on this sole ground her entire evidence cannot be disbelieved. However, her evidence that after lodging complaint in the police station, she came back to the spot along with police so also her evidence that she identified the dead body, as per the recitals of the inquest Panchanama, became doubtful due to the admissions given by PW-13, which are not got clarified by the prosecution. 12. Now coming to the other circumstances that according to PW-5 Ruksana the appellant assaulted her father with scythe and assailant Hanif with axe, however, there is no whisper in the evidence of PW-12 Shivaji Atole at whose instance the scythe was recovered. As per the evidence of PW-11, two axes were recovered at the instance of the appellant and accused Rashid which were sent to CA whereas as per the evidence of PW-5 Ruksana only one assailant used axe during the assault. Perusal of the CA report indicates that blood was found on only one axe out of the two. Now the question arouse as to whether the axe on which blood was drp {13} Cri. Appeal No.399/2009 found was recovered at the instance of appellant or not. The evidence is conspicuously silent on the point that the blood was found on the axe recovered at the instance of the appellant. The overall effect of the appreciation of the entire evidence is that the evidence of the prosecution is not clear that the appellant was the assailant, who had inflected injuries on the deceased, which resulted in his death. Furthermore, there was no labeling or sealing of the articles and clothes recovered during the investigation. In the premise, though the CA report indicates that human blood was found on the clothes, yet merely on that count it cannot be said that the appellant is the author of the injuries found on the person of the deceased, which resulted in his death. Therefore, we have to discard the evidence of PW-5 Ruksana also. The evidence of prosecution is not free from doubt and if it is so, benefit of doubt goes in favour of the accused. Therefore, the appeal ought to succeed. 13. Consequently, the appeal is allowed. Conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence 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. 14. Before parting with the judgment we express our thanks for the able assistance rendered by Mrs.Kazi, learned drp {14} Cri. Appeal No.399/2009 counsel appointed on behalf of the appellant. We quantify the fees payable to the learned counsel appointed on behalf of the appellant, at Rs.5000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel399-09