Cr.Appeal 385/2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.385 OF 2010 Navnath Raosaheb Mhaske Age 22 Years, Occ. Labourer R/o Pawar Vasti, Shevgaon, Tq. Shevgaon, Dist. Ahmednagar ..Appellant Versus State of Maharashtra ..Respondent ... Shri B.N.Palve, Advocate for Appellant Shri N.R.Shaikh, AGP for Respondents ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : August 16, 2011 ORAL JUDGMENT : (Per A.R.Joshi, J.) :- 1. Present Criminal Appeal is filed by appellant - accused No.1, challenging the order of conviction dated 25.8.2010, passed by learned Additional Sessions Judge, Ahmednagar in Sessions Case No.67 of 2009. 2. By the impugned judgment and order, present appellant - accused No.1 was convicted for the offence punishable under Section 302 of the Indian Penal Code ("IPC" for short") and was sentenced to suffer life Cr.Appeal 385/2010 2 imprisonment and to pay fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for one year. He was acquitted for the offence punishable under Section 3(1) (x) of the the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the Act of 1989" hereinafter). 3. Against acquittal of accused No.2 for both the charges and for acquittal of accused No.1 for the charge under Section 3(1)(x) of the Act of 1989, no appeal is preferred by the State. Accused No.1 preferred the present appeal challenging his conviction under Section 302 of IPC, as mentioned above. 4. Heard rival arguments for sometime. Perused the impugned judgment and order and the reasoning given by the learned Additional Sessions Judge, Ahmednagar. Prior to discussing the rival arguments and appreciating the evidence led before the trial Court, certain factual position and the case of prosecution can be narrated as under :- 5. On the even of New Year, in the evening of 31st December 2008, there was a sort of celebration at Cr.Appeal 385/2010 3 Pawar Vasti, Shevgaon, District Ahmednagar, where the deceased and the accused persons were residing. Various boys in the locality were gathered for the programme and they were dancing to the tunes of D.J. Sound System. In the evening at about 8.00 p.m. there was an incident in the said locality when deceased Deepak Vairagar was assaulted by means of knife and fist blows. The allegations were that present appellant - accused No.1 and his associate accused No.2 assaulted the deceased on previous enmity as the deceased used to tease sister of accused No.1. Apparently, the incident of assault was witnessed by the boys, who had gathered there, including one Akash More (PW 6), Ganesh Choudhary (PW 10) and one woman - Kamal Mhaske (PW 9). 6. It is also the case of prosecution that one Smt. Dwarkabai (PW 8) - mother of the deceased, was in her house during that evening and at about 9.00 p.m., two boys from the locality came to her house and informed that her son Deepak was being beaten. Dwarkabai rushed to the spot of incident and saw her son Deepak lying in-front of the house of one Shitalbai. Deepak was found in a pool of blood, having Cr.Appeal 385/2010 4 injuries on his neck, stomach and other parts of body. Dwarkabai tried to help her injured son and cried for help, however, none of the persons came forward to help her. Apparently, she was there on the spot with her injured son for about an hour without there being any help given to the injured. During that time, she removed her saree and tied the injuries of her son and tried to stop the bleeding but without any much success. After sometime, police persons arrived on the spot, as they were intimated by some passersby. Injured Deepak was taken in a rickshaw to the Rural Hospital at about 11.15 p.m. He was examined by Dr. Smt. Neeta Mulgir (PW 1), who was on duty. The history of assault, by means of knife, was given at the time of admission in the hospital. Seven injuries were noticed by the attending Doctor. During treatment, sensing the seriousness of the injuries, injured was shifted to Civil Hospital, Ahmednagar, but while under treatment, he succumbed to the injuries on 6.1.2009. 7. Initially, during investigation, after lodging of the first information report on the complaint of Dwarkabai (PW 8), involvement of accused No.2 was ascertained and he was put under arrest on Cr.Appeal 385/2010 5 2.1.2009. By that time, present appellant - accused No.1 was absconding. During investigation, spot panchanama was conducted. On the death of Deepak, offence punishable under Section 302 of IPC was added in the charge sheet. Clothes of the deceased were taken charge of. 8. During investigation, after finding whereabouts of present appellant - accused No.1, he was put under arrest on 9.1.2009. He allegedly made a voluntary statement on 12.1.2009 to produce the weapon of offence i.e. knife. Accordingly, memorandum panchanama (Exhibit 31) was drawn by calling panch witnesses including panch Avinash Matang (PW 3). In furtherance of said memorandum, accused No.1 produced one knife under panchanama Exhibit 32. 9. On completion of investigation, after recording statements of the witnesses, including the statements of eye witnesses Akash More (PW 6), Kamal Mhaske (PW 9) and Ganesh Choudhary (PW 10), seized articles, including the weapon of offence, were sent for chemical analysis and charge sheet was filed before the concerned Judicial Magistrate (F.C.), Shevgaon and Cr.Appeal 385/2010 6 the matter was committed to the Court of Sessions, being Sessions Case No.67 of 2009. 10. Again, prior to discussing the rival arguments, certain factual position can be narrated as under:- (1) The prosecution examined total 12 witnesses i.e. PW 1 Dr. Neeta, who examined the victim when he was initially admitted in the Rural Hospital and she found several incised wounds and opined that the injuries were by a sharp object and that the death was un-natural. PW 2 Devidas Mohite is the panch witness for inquest panchanama. PW 3 Avinash Matang is a panch regarding memorandum statement Exhibit 31 and recovery of knife Article 4 vide Exhibit 32, at the instance of the appellant - accused No.1. PW 4 Sudhir Mhaske is the Photographer. PW 5 Gorakshanath Shelar is the panch regarding arrest of both the accused on 6.1.2009 and 2.1.2009 respectively. PW 6 is Akash More, operator of D.J.Sound system and the alleged Cr.Appeal 385/2010 7 eye witness. PW 7 is Vijay Bharaskar, owner of the D.J.Sound System. PW 8 Dwarkabai is the mother of deceased, who lodged first information report Exhibit 48. PW 9 is Kamal Mhaske, who alleged to be the eye witness but did not support the case of prosecution and turned hostile. PW 10 Ganesh Choudhary is alleged eye witness. He also did not support the case of prosecution and turned hostile. PW 11 is API Kharche, who recorded the first information report and also conducted the spot panchanama Exhibit 55. Last prosecution witness is No.12 - Dattatray Gaikwad, Dy. Superintendent of Police who is the Investigating Officer and conducted the investigation as the offence punishable under Section 3(1)(x) of the Act of 1989 was levelled against the accused. (2) Out of above twelve prosecution witnesses, important witnesses are only Akash More (PW 6), Kamal Mhaske (PW 9) and Ganesh Choudhary (PW 10), whereas, PW 8 Dwarkabai reached the spot after knowing the assault on Cr.Appeal 385/2010 8 her son and after allegedly knowing the names of the accused persons, lodged the first information report. PW 9 Kamal Mhaske and PW 10 Ganesh Choudhary, alleged eye witnesses, did not support the case of prosecution, as mentioned above. (3) So far as death of victim is concerned, there is no dispute that it was a homicidal death and as such, this aspect need not be elaborately dealt with in the present appeal. 11. In view of the above position, the arguments of learned Advocate for the appellant - accused No.1 are required to be dealt with. It is submitted that, as the entire case of the prosecution revolves around the testimony of PW 6 Akash More and as his evidence is not trustworthy, inasmuch as he had an opportunity to improve upon the case of the prosecution, his evidence is required to be discarded. It is further submitted on behalf of the appellant that the statement of PW 6 Akash More was recorded after about ten days of the incident and this aspect in itself is definitely a Cr.Appeal 385/2010 9 mitigating circumstance to the case of the prosecution so as to doubt his authenticity. In order to deal with this argument on behalf of the appellant - accused No. 1, the substantive evidence of PW 6 Akash More is carefully gone through by us. The gist of such evidence can be narrated as under :- 12. PW 6 Akash More was knowing the deceased and also both the accused persons. According to him, another alleged eye witness PW 10 Ganesh Choudhary was working along with him as an operator of D.J. Sound System of PW 7 Vijay Bharaskar. On the relevant evening of 31.12.2008, Vijay Bharaskar had provided his music system for the function at Pawar Vasti, where the incident occurred. After connecting the instruments PW 7 Vijay Bharaskar left the spot and PW 6 Akash More remained there for controlling the sound system. That time, various boys from the locality were dancing on the music. At about 9.00 p.m. victim came while bending down and fell on the ground. He had suffered injuries on his neck and stomach and both the accused were assaulting him with fist and kick blows. Appellant - accused No.1 was holding a knife. Victim ran towards his home but could not succeed. He was followed by the Cr.Appeal 385/2010 10 accused persons. Noticing the situation, the persons gathered there became frightened. The sound system was shut down. PW 6 Akash More and his companion PW 10 Ganesh Choudhary went to their employer PW 7 Vijay Bharaskar and narrated him the incident. 13. According to PW 6 Akash More, ten days thereafter his statement was recorded as he was frightened due to the incident and went to reside with his relative at the house at Shastri Nagar. During the cross-examination, it is brought on record that the victim belonged to the community of PW 6 Akash More. It is also brought on record that at the time of the incident, there was rather commotion and great noise created by the D.J.System and number of boys were dancing on the open ground and it is infront of the house of one Kamalabai (PW 9). During cross- examination, it is also brought on record that the sound system was started at about 6.00 p.m. and thereafter, electricity supply in the locality was dis- continued and lights were off for sometime. It is also brought on record that when the victim arrived in that area, D.J.System was operating in a loud volume. It is also brought on record during the cross-examination Cr.Appeal 385/2010 11 that PW 6 Ashok More could not hear anything due to such loud volume of the sound system so also could not hear whether there was any quarrel between the victim and the assailants. Moreover, he had no talk with the victim and also did not try to rescue the victim from the assault or to assist the victim when he fell on the ground. It is also brought on record that PW 6 Akash More did not interfere in the said commotion and did not even inform the incident to anybody from the vicinity for help. It is also brought on record that PW 6 Akash More though felt that he should narrate the incident to the police, he did not go to the Police Station nor narrated it to the police on their arrival. The reason given by the witness is that he was frightened on seeing the incident of assault. However, after ten days, he did not remain in the frightened state and when called by the police narrated the incident as to both accused assaulting the victim. When he went to the Police Station for giving his statement, his colleague Ganesh Choudhary (PW 10) and his employer Vijay Bharaskar (PW 7) and 2 to 3 other boys accompanied him. 14. On careful scrutiny of the substantive Cr.Appeal 385/2010 12 evidence of Akash More (PW 6), as discussed above, it must be said that the reasoning given by witness as to not telling the incident to the police at the earliest point of time, does not sound to reason and logic and in that event the defence raised on behalf of the appellant - accused No.1 as to concoction of the case can be accepted on preponderance of probabilities. This is more so, in view of the analysis of the substantive evidence of complainant Dwarkabai (PW 8). It is a factual position that Dwarkabai is not an eye witness. In her deposition before the Court she had given the names of accused persons, but she did not give said names while giving her statement / complaint to the police. As such, giving of the names before the Court is in fact an improvement as during her cross- examination she had categorically mentioned that she had not given the names of the accused persons to the police. 15. considering the effect of substantive evidence of Ashok More (PW 6) and Dwarkabai (PW 8) and considering the hostility of other alleged eye witnesses - Kamal Mhaske (PW 9) and Ganesh Choudhary (PW 10), in our opinion, the learned trial Court had Cr.Appeal 385/2010 13 fallen in an error in accepting the testimony of Akash More (PW 6) as trustworthy. In that event, it must be said that the prosecution has not proved the involvement of present appellant - accused No.1 in the offence of murder beyond reasonable doubt. Consequently, the present appeal must succeed and same is disposed of with the following order :- ORDER Criminal Appeal No.385 of 2010 is allowed. Impugned judgment and order dated 25.8.2010, passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No.67 of 2009 for the offence punishable under Section 302 of the Indian Penal Code is set aside. The appellant - accused No.1 be released from jail custody, if not required in any other matter. If the fine amount of Rs.1,000/- (Rs. One Thousand only) is already deposited, the same shall be refunded back to the appellant- accused No.1. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl