vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.978 OF 2002 CRIMINAL APPEAL NO.978 OF 2002 CRIMINAL APPEAL NO.978 OF 2002 Satish Vikram Maske r/o. Sangam, Tal.: Malshiras Dist.: Solapur ... Appellant V/s. The State of Maharashtra (at the instance of Akluj Police Station in C.R. No.56 of 2001) Tal.: Malshiras, Dist.: Solapur ... Respondent Mr.Shekhar Ingawale for the Appellant Mrs.V.R. Bhosale, APP, for Respondent CORAM: S.B. MHASE & S.B. MHASE & S.B. MHASE & SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, JJ. JJ. JJ. DATED: MARCH 2, 2007 MARCH 2, 2007 MARCH 2, 2007 ORAL JUDGMENT (PER SMT.MHATRE, J.): ORAL JUDGMENT (PER SMT.MHATRE, J.): ORAL JUDGMENT (PER SMT.MHATRE, J.): . By this Appeal, the appellant has challenged the judgment and order of the II Additional Sessions Judge, Pandharpur dated 12.7.2002 in Sessions Case No.90 of 2001. The appellant is accused No.1 before the Sessions Judge. The Sessions Court while convicting the appellant under sections 120B, 143, 147, 148 and 302 r/w section 149 of the Indian Penal Code has sentenced him to suffer imprisonment for life and to pay a fine of Rs.5000/-. Accused Nos.2 to 5 were acquitted of the same offences. 2. The appellant was charged with having murdered Jyotiram Bhimrao Parade on 24.4.2001. Four other accused were arraigned with him before the Sessions : 2 : Court besides 5 to 7 other unnamed persons. 3. It is the case of the prosecution that on 24.1.2001 at about 10 pm, the deceased Jyotiram was walking towards Bhima river with his cousin, Sanjay Parade. After walking a certain distance, Sanjay realised that he had forgotten his torch and returned home. He collected the torch and was walking towards Jyotiram when he saw a jeep driven by accused No.5 approach Jyotiram. The appellant and the other accused alighted from the jeep. The appellant who was armed with a sword and the others who were also armed assaulted Jyotiram. When Jyotiram tried fleeing from the spot, the accused and 4 to 5 others, who alighted from the jeep chased him. They assaulted Jyotiram. Sanjay was able to see the incident as the headlight of the jeep was focussed on the assailants. According to the prosecution, the appellant dealt Jyotiram a blow with the sword as a consequence of which Jyotiram collapsed. The others assaulted him with different weapons. When Sanjay and 4 others arrived at the spot, the assailants sped away in the jeep. Sanjay and the others put the injured Jyotiram in a jeep and took him to Akluj police station. Thereafter, they admitted him to the rural hospital, Akluj at about 12 midnight. The statement of the injured Jyotiram was recorded by the police officer on duty in the presence of the Medical Officer. On the basis of this statement crime No.56 of : 3 : 2001 was registered against the appellant and 10 to 12 others. Investigation commenced. The victim was referred to the Civil Hospital, Solapur instead of which he was admitted to another hospital in Akluj where he succumbed to the injuries at about 4 am on 25.4.2001. The inquest and spot panchanamas were drawn up. The appellant was arrested on 25.4.2001 and the other accused were arrested on consecutive days thereafter. According to the prosecution, the police recovered two swords, one scythe and one pipe at the instance of accused No.1 from the house of accused No.3. The sword recovered was blood stained. The accused were then charged for having committed the offence of murder. Their trial resulted in the appellant being convicted while the other accused were acquitted. 4. The prosecution has relied on the evidence of 10 witnesses, one of whom Sanjay, PW3, is an eye witness. PW3 Sanjay speaks about there being an enmity between Jyotiram and the appellant. Jyotiram’s sister, Ashabai lived with her husband and son. Ashabai’s husband had a dispute over their agricultural lands with his brothers. The appellant was the son of one of the brothers in law of Ashabai. According to this witness on 24.4.2001, the victim was assaulted by the appellant with a sword. 10 to 12 others also assaulted the victim. This witness claims that he was able to spot the registration number of the jeep in which the appellant and 10 to 12 others : 4 : approached Jyotiram. The witness has deposed that he saw the appellant assault Jyotiram with a sword on his head and leg. He has mentioned the names of the other assailants and the parts of the victim’s body on which they dealt their blows with the arms that they were carrying. According to this witness, Santosh Parde, Prabhakar Ingale, Ramchandra parde and Laxman Parde arrived at the spot. The accused then sped away in the jeep in which they had arrived. He has then narrated that he and the others took Jyotiram to the police station and later admitted him to the hospital and that Jyotiram expired at 4 am on 25.4.201. This witness has spoken about Ashabai and her husband being driven out of their agricultural lands by the appellant’s father in his presence. He has spoken about the enmity between Jyotiram and the appellant as a consequence of this act of the appellant’s father. This witness has admitted in the cross-examination that he did not intervene when Jyotiram was being assaulted. He has also admitted that he did not obstruct the assailants who followed Jyotiram when he tried to flee away after the first blow. This witness claims to have helped the injured Jyotiram home without his clothes being stained with blood. He has admitted that he did not lodge a report with the Police Patil after Jyotiram was taken home. 5. The dying declaration of the victim was recorded by the PSI, PW4. In this statement, the victim has : 5 : stated that about 10 to 12 persons drove up to him in a jeep. The appellant identified him and instigated ten to twelve other persons to assault him. The victim has then stated that the appellant inflicted injuries with the sword on his legs and on his neck. The others beat him with an iron rod. The victim has stated that he sustained injuries on both his hands and legs and head. According to him, he raised an alarm when his cousin Arvind Parde came running towards him. He has also mentioned about the presence of Sanjay Parde, PW3 and has stated that Sanjay recorded the number of the jeep with the help of his flash light. The victim has mentioned the number of the jeep in his statement. He has then spoken about being admitted to the hospital and being under treatment. This statement has been endorsed by the medical officer who has been examined as PW2. 6. A perusal of the dying declaration of the victim and the eye witness account of Sanjay disclose several contradictions. Firstly, the victim does not mention the presence of Sanjay when he was proceeding towards Bhima river to start the electric motor. On the other hand Sanjay in his deposition claims that he was walking with the victim when he realised that he did not take his torch light with him and therefore, returned home. The victim speaks about Sanjay’s presence only after he was assaulted. The victim has stated that the appellant injured him on both his legs and on the nape of his neck : 6 : with the sword. Sanjay on the other hand, has stated that the appellant inflicted an injury with the sword on Jyotiram’s head and leg. Besides these material contradictions, it is impossible to believe that a person who was so severely injured would have been in a position to recall the number of the jeep in which the assailants approached him, when his statement was recorded. These factors therefore cast a doubt on the genuineness of the dying declaration. 7. The injuries which the victim has sustained have been mentioned by PW2, the medical officer who was on duty in the rural hospital, Akluj when the victim was admitted. He has mentioned the following injuries: 1. Swelling of the left arm with fracture of humerous and deformity with contused lacerated wound of about 1" X 1/2 cm. 2. Swelling and deformity of left leg with fracture of tibea and fibula. 3. Multiple abressions with multiple contusions over the back. 4. Contused lacerated wound, right leg, size 4" X 3" by muscle deep. 5. Contused lacerated wound over the left side of neck size 6 cm. X 0.5 cm. by sking deep. 6. Contused lacerated wound over the left parital regions size 5 cm. X 1 cm. X 1 cm. 7. Incised wound over right shoulder and the right arm size 5 cm. x 0.5 cm. and 4 cm. x 0.5 cm. This witness has endorsed the dying declaration and : 7 : stated that the victim was fit to have his statement recorded. This witness has also performed the postmortem examination of the victim on 25.4.2001. The external injuries recorded in the postmortem report are as follows: 1. Sutured wound left parital region 5 cm 2. Contused lacerated wound over left side of neck 5 cm x 1 cm x 1 cm. 3. Three incised wounds over right shoulder and right arm measuring 5 cm x 0.5 cm, 4 cm x 0.5 cm and 8 cm x 1 cm. 4. Left arm swollen with deformation with C.L.W. 1 x 1/2 cm. x sking deep with fracture shoft humersus. 5. Multiple abrasions with multiple contusions of various sizes over the back. 6. C.L.W. below left knee 6 x 2 cm. x skin deep. 7. Stab wound over left thigh lateral aspect 3 cm. x 2 cm. x muscle deep 8. Contused lacerated wound over right leg 6 cm x 3 cm x muscle deep. 9. Contused lacerated wound over right leg anterior middle third 2 cm. x 1 cm x skin deep. 10. Fracture over left tibia and fibula lower third. The internal injuries are as follows: 1. Sutured wound 5 cm. over left partial region with fracture of skull over left parital region with heamatoma formation. 2. Collection of blood at left parital region with subdural heamatoma. : 8 : 3. Fractures of ribs on posterior aspect of thoracic vertica 10, thoracic vertica 22. and thoracic vertica 12. 4. Collection of fluid on blood in right plural cavity about 5 cm. 5. Contused right lung with injury to the lower part, laceration and bleeding. 6. Left lung was congested. 8. The witness has stated that the incised wounds were possible by the sword and the scythe which were seized. The stab wound was also possible according to the witness by means of either of these weapons. In the crossexamination, the witness has admitted that on going through the case papers there was no entry that the patient was conscious when he was admitted to the hospital. The witness has then admitted that the contused lacerated wounds were possible by hard and blunt weapons. Considering the deposition of this witness and the injuries mentioned by him, we are of the view that the medical evidence does not corroborate the ocular evidence on record. Neither Sanjay nor the victim have mentioned an injury on the right shoulder of the victim. The internal injuries indicate that there were three incised wounds whereas the external injuries mentioned by the medical officer only show an incised wound over the right shoulder. If the testimony of Sanjay is to be believed, the appellant had struck the victim on the head with a sword. The medical officer has recorded that there was a contused lacerated wound : 9 : over the left parital region. He has admitted that contused lacerated wounds were possible by a hard and blunt weapon. The appellant was carrying a sword. There is no evidence to show that the sword could have caused such a wound. Neither is there any evidence on record to indicate as to which injury sustained by the victim proved to be fatal and who had inflicted that injury. 9. The arrest panchanama which is at Exhibit 34 has been proved by the panch witness PW7. He speaks about the clothes of the appellant being seized in his presence at the police station. However, he does not mention that the clothes of the appellant were blood stained. The report of the Chemical Analyser also indicates that the clothes worn by the appellant were not blood stained. PW2 has also stated that the weapons used in the assault on Jyotiram were recovered at the instance of the appellant from the house of the accused No.3. Two swords, a scythe and one pipe were recovered. The report of the Chemical Analyser indicates that the swords were stained with human blood. The blood stains on one of the swords were of blood group ‘O’ while the grouping of the blood stains on the other sword proved to be inconclusive. There is nothing on record to show which sword was used by the appellant to attack the deceased. : 10 : 10. In such circumstances, in our opinion, the prosecution has failed to prove conclusively that the appellant was responsible for the death of the victim. There is variance in the testimony of PW3 and the dying declaration. The ocular evidence is not corroborated by the medical evidence on record. The report of the chemical analysis of the blood stains on the sword and the clothes of the appellant does not support the case of the prosecution. 11. The Appeal is allowed. The conviction and sentence of the Appellant under sections 120-B, 143, 147, 148 and 302 read with section 149 of the Indian Penal Code, 1860 is hereby set aside and he is hereby acquitted of the said offences. The Appellant be set at liberty, if not otherwise required in any other offence. (NISHITA MHATRE, J.) (S.B. MHASE, J.)