{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.709 OF 2008 1. Rajkumar @ Rajendra s/o Bappasaheb Ingole Age-20 years, Occ-Agriculture 2. Sanjay s/o Bappasaheb Ingole Age-29 years, Occ-Agriculture 3. Ratan s/o Abarao Ingole Age-40 years, Occ-Agriculture All R/o Aher Dhanora Tq & Dist-Beed APPELLANTS VERSUS The State of Maharashtra RESPONDENT ....... Mrs. S.S.Jadhav, Advocate for the appellants Mr. N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] RESERVED ON : 11th October 2010 PRONOUNCED ON : 27th October 2010 {2} JUDGMENT (PER A.V.POTDAR, J.): 1. By the present criminal appeal, the appellants have questioned the correctness of the judgment dated 20.11.2008 passed by Additional Sessions Judge-II Beed in Sessions Case No. 91/2007. By the said judgment, the appellants No.1 and 2 are convicted for an offence punishable u/s 302 r/w 34 of the IPC and are sentenced to suffer life imprisonment and to pay a fine of Rs. 5000/- each, in default to suffer SI for three months. Appellants No.1 and 2 along with appellant No.3 are also convicted for an offence punishable u/s 324 r/w 34 of the Indian Penal Code and are sentenced to suffer RI for one year and to pay a fine of Rs. 5000/- each, in default to suffer SI for three months. 2. The facts, in nutshell, leading to the present appeal, can be summarized thus - a) On 03.07.2007 at about 7.00 p.m., Mahananda (PW-5) saw Sanjay (Appellant No.2), Meerabai and Rajendra (Appellant No.1) passing from their field and when she obstructed them from passing from the field and advised to use the bundh (boundary), she was beaten by them. Accordingly, complaint (Exhibit-77) was lodged with Beed (Rural) police station. Thereafter, in the evening, Shankar (deceased) and Balaji (PW-3) returned to their home, which is situated in the field and after having meal, {3} at about 10.00 p.m. PW-2, PW-3, PW-5 and deceased Shankar decided to question the appellants as to why they beat Mahananda. Therefore, at about 11.00 p.m. they went to the house of appellant Sanjay, which is situated nearby to their house. b) When they were questioning the appellants, altercation took place and the appellants assaulted PW-2, PW-3, PW-5 and Shankar. Shankar ran towards the standing crop of sugarcane where he collapsed and then the remaining witnesses ran towards their houses where they became unconscious. Balaji (PW-3) informed the said incident to one Deshpande, who in turn informed the same to the police. The police van came to the spot and shifted the injured and deceased Shankar to Civil Hospital Beed c) On receipt of information, Police Inspector, Khanderao Borade (PW-9) reached to the Civil Hospital and drew inquest Panchanama (Exhibit-68) on the dead body of Shankar and recorded statement (Exhibit-67) of injured Bhaguji (PW-2), on the basis of which offence at Crime No.110/2007 for an offence punishable u/s 147, 148, 149, 302 and 324 came to be lodged against the appellants and others. {4} d) Dead body of Shankar was sent for Postmortem, which was conducted by PW-6 Pradnya Raut-Ware. Dr.Pradnya noticed the following external injury on the dead body. 1. Stab injury on the back just on right side of mid line 1.5.2 X 1 X 5 cm. (explored) 2. Incised wound on rt. Buttock 4 X 1.5 cm superficial. 3. Incised wound on lat. aspect of left buttock 6X 0.25 cm superficial. During the internal examination, PW-6, Dr.Pradnya noticed the following internal injury. Right Lung – Laceration on Rt. lung middle lobe post- asper 1.5 X 0.5 X 4 cm with Hasmthorax on right side. According to her, the probable cause of death is hemorrhagic shock due to lacerated wound on right lung. e) Bhaguji (PW-2), Mahananda (PW-5) Balaji (PW-3) as well as Sanjay (Appellant No.2) and Ratan (Appellant No.3) were also admitted in the Civil Hospital at Beed as indoor patients. They were examined by Dr.Radheshyam Jaju as well as defence witness Dr.Avinash Deshpande. Both the doctors noticed incised wounds and abrasions on the {5} persons of these injured persons. f) During the further investigation, on 04.07.2007, at about 12.00 noon Investigating Officer had visited the spot and had drawn the spot Panchanama (Exhibit-65) and had recovered one axe, one sickle, broken handle of an axe, chappal, remnant of chilly powder and some clothes. On the same day appellant No.1 Rajendra and Janabai were arrested. Appellants No.2 and 3 were arrested on 05.07.2007 while they were taking treatment in the civil hospital at Beed and clothes on their persons were seized under seizure Panchanama (Exhibit-73, Exhibit-74 and Exhibit-75). On 05.07.2007 itself one Kisan was also arrested. g) On 06.07.2007, while in police custody, appellant No. 1 made a disclosure statement in presence of witnesses, which resulted into recovery of one gupti, which was seized under seizure memorandum (Exhibit-81). On 08.07.2007, while in police custody, appellant No.3 also made a disclosure statement, which led to recovery of one knife under seizure memorandum (Exhibit-83). On the same day i.e. on 08.07.2007, while in custody, appellant No.2 also made a disclosure statement, which resulted into recovery of one knife which was seized under seizure memorandum (Exhibit-82). {6} h) During the further investigation map of scene of the offence was prepared through revenue officers (Exhibit-103) thereafter statements of certain witnesses were recorded and the property, which was seized during the investigation was sent for chemical analysis. After receipt of the report from CA and on completion of the investigation, charge sheet was filed against the appellants and others before Chief Judicial Magistrate, Beed. Thereafter, it appears, the case was transferred to JMFC, Beed, who after passing the necessary committal order, committed the trial to the Court of Sessions, Beed. i) Trial court framed charge (Exhibit-31) against the appellants and others for an offence punishable u/s 147, 148, 323 r/w 149, 324 r/w 149 and 302 r/w 149 of the IPC to which the accused pleaded not guilty and claimed to be tried. 3. From the record it appears that, to substantiate the charges leveled against the accused, prosecution had examined 3 injured eye witnesses including the complainant, 3 Pancha witnesses, two medical officers including the medical officer who had conducted PM on the dead body of Shankar and the Investigating Officer. {7} 4. The defence of the accused was that the injured witnesses and the deceased had attacked on them during the night hours and while resisting the said attack, the injured witness so also the deceased as well as the appellants and other accused sustained injuries for which they are not responsible. The accused have examined Dr.Deshpande in their defence. 5. It appears that in the light of the said evidence the trial court, wide the impugned judgment, convicted appellants No.1 and 2 for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and to all the appellants for an offence punishable u/s 324 r/w 34 of the Indian Penal Code. At the same time, acquitted original accused No.2, 5 to 7 of all the charges. Admittedly, the State has not preferred any appeal challenging the order of acquittal of other accused persons. 6. In this background, heard learned counsel for the appellants followed by learned APP, who supports the impugned judgment of conviction. For better appreciation of the rival submissions, it is necessary to advert to the evidence of material witnesses. 7. It is in the evidence of PW-2 Bhaguji, complainant, that on 03.07.2007, at about 7.00 p.m., his wife Mahananda (PW-5) was working in the field, situated behind their residence, at that time appellants No.1 and 2 with original accused No.7 Meerabai, {8} were passing from the field and when Mahananda obstructed them from passing from the field, they beat her and therefore, complaint (Exhibit-77) was lodged. It has further come in his evidence that at about 11.00 p.m, on the same day, he along with Shankar (deceased), Balaji (PW-3) and Mahananda (PW-5) went to the house of appellant Sanjay to enquire about the incident, which had occurred in the evening, at that time appellant No.2 Sanjay inflected knife blow on the waist of Shankar, therefore this witness had caught hold of appellant Sanjay and hence Shankar could escape and ran away. He has further deposed that thereafter appellant Rajendra ran behind him and inflicted blow of gupti on Shankar in the meanwhile appellant Sanjay assaulted Mahananda with a gupti and therefore PW-2 Mahananda, PW-3 Balaji and this witness himself ran to their house and became unconscious. Prior to that Balaji PW-3 had informed the said incident to one Deshpande on his mobile, who in turn had informed the police. The police van came and shifted the injured to the hospital. In the hospital, on 04.07.2007, statement of Bhaguji was recorded (Exhibit-67), which was treated as FIR. It has further come in his evidence, particularly at para No.6, that in the complaint the place of incident is stated as in front of their house and not in front of the house of the appellants. It has also came in the evidence that the house of appellant Sanjay is on the western side. In his cross-examination it has transpired that before the incident in question occurred, for about 10-15 minutes, exchange of hot words was going on between the parties. He was suggested {9} that the appellants No.2 and 3 had also sustained injuries in the said incident, which was denied by this witness. At the same time, he has admitted that in respect of the same incident, offence is registered against them on the complaint of appellant Sanjay. According to him, he remained in the hospital for about 10 days. Case of self defence was suggested to him, which he denied. It was suggested to this witness that the complainant party, armed with deadly weapons, had attacked the appellants and their family members and in self defence, when the appellants tried to protest the attack, they sustained injuries. In para 11 omissions are brought on record that appellant Sanjay inflicted blow of knife on the waist of Shankar, he had caught appellant Sanjay and hence Shankar could escape and Rajendra followed Shankar and had assaulted him. Evidence of PW-2 is conspicuously silent on the point that the complainant party was also armed with weapons. 8. It transpired from the evidence of PW-3 Balaji, an eye witness, that he and his brother Shankar (deceased) learnt about the incident of beating to their mother Mahananda and therefore, at 11.00 p.m. he along with Shankar (deceased), his father Bhaguji (PW-2) and his mother Mahananada (PW-5) went to the house of appellant Sanjay to enquire about the assault on Mahananda. At that time, appellants No.1 and 2 abused him, appellant No.2 inflicted blow of a knife on Shankar, which is proved omission in para 5 of his cross-examination. This witness has further deposed that his father had caught appellant Sanjay and at that time {10} appellant Rajendra chased Shankar and assaulted him with gupti. This witness was also assaulted by appellant No.1, however, this fact did not find place in the evidence of PW-2. This witness has further deposed that after Shankar ran away, appellant No.1 assaulted him and his mother Mahananda was assaulted by appellant No.2, however, this has also been proved as omission in his cross-examination. He has stated that appellant Ratan assaulted Bhaguji (PW-2), but surprisingly, Bhaguji himself has not whispered about the same in his evidence. It transpired in his evidence that Shankar (deceased) fall by the side of sugarcane crop and then all of them ran towards their house, he contacted Deshpande and informed about the incident, who in turn informed the police and thereafter the police came and shifted the injured and deceased to civil hospital at Beed. It has came in the cross- examination that he witnessed the incident of assault on Shankar from the distance of 5 feet. He denied the suggestion that his father Bhaguji, Shankar, Mahananda and he himself were armed with deadly weapons and had attacked the appellants and their family members. According to him, they reached in the hospital around 12.00 midnight and thereafter complaint (Exhibit-67) of Bhaguji was recorded. 9. Evidence of PW-5 Mahananda is on the same lines as the evidence of Balaji-PW-3 and Bhaguji (PW-2). She has given the details of the incident, which had taken place in the evening. At about 11.00 p.m. she, along with injured Balaji, Shankar {11} (deceased) and her husband Bhaguji went to the house of appellant Sanjay and Sanjay inflicted blow of a knife on the waist of Shankar and that time Bhaguji had caught hold of Sanjay and then appellant Rajendra assaulted Bhaguji, who fall near a sugarcane crop thereafter appellant Rajendra assaulted Shankar and appellant Ratan assaulted her. However, all these incidents proved omissions in her cross-examination. Theory of self defence was also suggested to this witness that the complainant party had came to the house of the appellants with an intention to attack them and they had not came there to enquire only, which she has denied. 10. The evidence about the spot of incident, to some extent, is material of the Investigating Officer himself. In the cross examination PW-9 has admitted that during the course of investigation it has came to his notice that in the complaint PW-2 Bhaguji had claimed that the spot of the incident is situated in front of his house, however the spot of incident, shown to him was in front of the house of the appellant Rajendra. He has further admitted that in the complaint PW-2 Bhaguji has not stated that appellant No.2 Sanjay had assaulted on the waist of Shankar and at that time he had caught hold of Sanjay and hence Shankar could ran away and thereafter Rajendra chased him and inflicted blow of gupti on Shankar on his back and thigh and then Mahananada was assaulted by Rajendra and other accused throw chill powder and pelted stones. {12} 11. In this background, heard learned counsel for the appellants and learned APP for the State. During the course of submissions, our attention is invited towards the evidence of prosecution witness No.1, through whom the Panchanama of the place of offence (Exhibit-65) has been proved. Our attention is also invited towards the articles, which were found at the spot and were seized while drawing the spot Panchanama. It is also urged that the entire evidence of prosecution witnesses is silent on the point of use of axe, handle of axe or sickle, which were seized during the spot Panchanama. Our attention is also invited to the fact that the forwarding letter sent to CA along with Muddemal articles is not placed on record, however the report of the CA (Exhibit-104 (1), indicates that the axe, which was seized form the spot, was sent for analysis and blood of “A” group was found on the same. Curiously, blood of complainant Bhaguji and injured Balaji is of “A” group. It is contended that considering the complaint (Exhibit-67) and the cross examination of PW-9 Investigating Officer, wherein he has admitted that the place of incident, shown by the wife of deceased Shankar, is not the place as per the allegations of the complaint, which clearly demonstrates that the injured eye witnesses are hiding something while giving ocular evidence. At the same time, our attention is also invited towards the injuries sustained by appellants No.2 and 3. It is urged that the nature of the injuries sustained by the appellants may not be grievous, however, it indicates that the appellants were also injured during the said {13} incident and hence it was necessary for the prosecution witnesses to explain the said injuries. In this respect, our attention is also invited to the evidence of defence witness Dr.Avinash Deshpande, who has treated the injured witnesses as well as appellants No.2 and 3 and case papers (Exhibit-94 and 95) were prepared by him. These papers indicate that at the time of admission in the hospital, history of assault by somebody was given by the injured witnesses, when according to them, they knew the names of the assailants and hence according to learned counsel for the appellants it is clear that the evidence given by the prosecution witnesses is not true and correct version of the incident. 12. Learned APP supported the impugned judgment and urged for dismissal of the appeal and confirmation of the sentence. 13. Considering the rival submissions, according to us, it is necessary to refer the observations of the Apex Court in the matter of “Laxmi Singh V/s State of Bihar” AIR 1976 SC 2263 wherein the Supreme Court has observed thus- “In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence {14} of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non examination of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable consistent and credit worthy, that it far outweigh the effect of the omission on the part of the prosecution to explain the injuries.” These observations are based on the famous judgment in the matter of “State of Gujrat V/s Bai Fatima reported in AIR 1975 SC 1478. In the said judgment, the Apex Court has observed that “In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: i) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the {15} accused cannot be held to have been proved beyond reasonable doubt and (3) it does not affect the prosecution case at all.” 14. At this juncture, reference to the judgment of the Apex Court in the matter of “Sucha Singh V/s. State of Punjab” reported in 2003 Cri.L.J. 3876, may also usefully be made. The Apex Court, in the said judgment, has observed thus - “Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation. ‘A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties.’ Doubts would be called reasonable, if they are free from zest for abstract speculation. Law cannot afford any favourite other then truth.” 15. In view of the rival submissions and considering the {16} record, it is clear that in the evidence of PW-2, 3 and 5, though consistent with each other, they have changed the place of incident, as alleged in the complaint (Exhibit-67). In the charge framed against accused the place of incident is specifically mentioned as ‘at the vasti of complainant at village Aher Dhanora’. As stated earlier, though the contents of the complaint are denied by PW-2, yet it is admitted by the Investigating Officer (PW-9) that the place of offence, of which Panchanama is drawn, is not the place of offence as alleged in the complaint. Apart from it, in the evidence of the prosecution witnesses, they have nowhere disclosed that the appellants were armed with axe, sickle and sticks. At the same time the spot Panchanama discloses axe smeared with blood, broken handle of axe, sickle and stick. Admittedly, these articles were seized from the spot of offence. Reference is found in the judgment of the trial court, in paragraphs No.68, 71 and 73, that when Bhaguji (PW-2), Balaji (PW-3), Shankar (deceased) and Mahananda (PW-5) went to the house of appellant Sanjay to question about the incident in the evening, however, these facts do not transpire in the evidence of any of these witnesses. Though the evidence of Investigating Officer is not clear on the point as to whether the articles seized at the instance of the appellants were referred to CA or not. Admittedly, the CA report does not disclose that these articles were sent for chemical analysis. The evidence of the prosecution witnesses is conspicuously silent on the point as to the use of these articles, which were found and seized from the spot of the incident and were sent to CA for analysis and found {17} blood matching with the blood group of deceased and injured witnesses. Apart from it, when the injured witnesses were taking treatment in the civil hospital and clothes on their persons were seized, yet their blood was not collected for matching. Thus, it is clear that the prosecution witnesses are not disclosing the true and correct facts as to how the incident has occurred. Therefore, it has to be inferred that the weapons, recovered from the spot having human blood stains, were used by the prosecution party for which they have kept mum in the entire evidence. As it is observed by the Apex Court in the matter of “State of Gujrat V/s Bai Fatima” reported in AIR 1975 SC 1478, that in the given circumstances three inferences to be drawn. Here is a case where the inference to be drawn is that as the true story is not coming before the Court and certain facts are deliberately suppressed in respect of use of deadly weapons by the prosecution witnesses, change of spot of incident, non offering of explanation about the injuries sustained by the appellants and hence there is room for doubt about the prosecution story and exact involvement of the appellants and role alleged against them and whether the evidence on record is sufficient to hold the appellants guilty for the charges. According to us, this is a case where benefit of doubt certainly goes in favour of the appellants. 16. In the result, the appeal succeeds. The conviction recorded by the trial court against the appellants No.1 and 2 for an offence punishable u/s 302 r/w 34 of the IPC and the conviction {18} recorded against all the appellants for an offence punishable u/s 324