1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Appeal No.845 of 2008 Sanjay son of Nagorao Uike, aged about 25 years, resident of Village Shingori, Tq. Parsioni, Distt. Nagpur. .... Appellant. Versus State of Maharashtra, through Police Station Officer, Police Station, Parsioni, Distt. Nagpur. .... Respondent. ***** Mr. R.P. Joshi, Adv., for the appellant. Mr. Anup Parihar, Addl. Public Prosecutor for respondent. ***** CORAM : A.H. JOSHI AND R.C. CHAVAN,JJ. Reserved on : 12th March, 2009. Pronounced on : 17th March, 2009. ORAL JUDGMENT [Per A.H. Joshi, J.]: 1. Heard learned Advocate Mr. R.P. Joshi for the appellant and learned APP Mr. Anup Parihar for the respondent-State. 2 2. Perused the record. 3. PW 2 – Vanita Ashok Uike filed an oral report on 12th September, 2007 to the Police Station, Parshioni. After investigation, a charge-sheet was filed and on committal, accused was tried for the offence of murder of his own elder brother deceased Ashok Nagorao Uike in the evening of 11th September, 2007. The appellant has been convicted for offence punishable under Section 302 of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.2000/- with further Rigorous Imprisonment for fifteen days in the event of failure to pay fine. 4. In the trial, the prosecution has examined in all eleven witnesses. Those are:- Sr. Name and Prosecution Nature of evidence No. Witness No. led. 1. PW 1 - Madhukar Nathuji Witness to Ragankar, the Police the Spot Panchanama Patil. and other relevant facts. 2. PW 2 - Vanita Ashok Eye-witness and the Uike. complainant. 3. PW 3 - Harshala Ashok Witness of the Uike. fact of hostile relationship between the 3 accused. 4. PW 4 - Fulan Ramesh Hostile witness. Dhurve. 5. PW 5 - Eknath Doulat Hostile witness to Shende. the Spot Panchanama and Inquest Panchanama. 6. PW 6 - Shripat Shrawan Witness Meshram. residing in the neighbourhood. 7. PW 7 - Indira Ramesh -do- Bawane. 8. PW – 8 Chhaya Shripat -do- Meshram. 9. PW – 9 - Dilip Shriram Investigating Sapate, PSI. Officer. 10. PW 10 - Rajendra Police Officer Upadhay, Police who reduced into Inspector. writing an oral report of the complainant, and registered the crime. 11. PW 11 - Dr. Vaishali To prove Post- R. Kakde. mortem Examination Report. 5. PW 3 to 8 have turned hostile. Nothing important was elucidated from them in the cross- examination conducted by learned Public Prosecutor. 6. The prosecution, therefore, rests on the testimonies of PW 1 – Madhukar Nathuji Ragankar, PW 2 – Vanita Ashok Uike, the Police witnesses – Dilip Shriram Sapate, PSI [PW 9], and Rajendra Upadhay, PI [PW 10], 4 and Medical witness – PW 11 – Dr. Vaishali Kakde. 7. Fact of death and injuries are proved from the Post-mortem Examination Report, which is proved by PW 11 – Dr. Vaishali Kakde. It is a proved case of homicidal death. 8. Police witnesses – PW 9 Dilip Sapate, and PW 10 – Rajendra Upadhay have proved the statements recorded by them, and their evidence has no bearing on proof of fatal assault by the accused. 9. The evidence of PW 1 – Madhukar Ragankar is as to oral reporting to him by PW 2 – Vanita Uike, and Panchanama, recovery etc. Considering that all that he has deposed is proved, this testimony has no bearing on the fact of homicidal fatal assault by the accused. 10. The case then solely rests on the testimony of PW 2 – Vanita Uike. She has deposed in unambiguous language as follows:- “1. .................................. ........Accused present before the court who is my brother in law assaulted my husband by means of stick (Ubari) in my presence and ultimately my husband died. It was about 8.00 to 8.30 p.m. My husband was assaulted by the accused in the courtyard of my house. This incident did take place on 11.9.2007. Accused dealt blow of that 5 Ubari on the head of my husband. He sustained injury on his head, he fell down at that spot itself. On seeing this incident, I was shocked. I could react so as to save myself or my husband. I with a view to save life of my daughter aged about 9 years and two sons aged 7 years and 4 years, hurriedly took them and went away from the back side door of my house. I then reached to the house of Shripat Meshram. Ultimately I could narrate him about the incident. I stayed at the resident of Shriprat throughout night because of fear in mind. In the morning I returned back to my house. At the spot of incident blood stains were found. My husband was not found at the spot and in the house. I then reached to the house of Police Patil Madhukar Ragankar. I narrated about the incident to him and requested him to accompany me to lodge report in Police Station. Police Patil told me that he would inform telephonically to police and asked me to reach to P.S. Parshioni. From my village Shingori Police Station Parshioni is about 15 K.M. I proceeded by an auto. I lodged the report in police station. Report now shown to me bears my signature. Contents of report are correct. It is at Exh.19. Printed FIR also bears my signature. It is at Exh.20. Police reached to the spot. Police searched dead body of my husband. It was found on the way (Pandhan) proceeding towards river from village. The sign of dragging dead body from the spot of incident till the place where dead body was found noticed. I can identify that Ubari if it is shown to me. ........” [Sub-paragraphing and underlining is done for convenience and to provide emphasis while quoting]. 6 [Quoted from page nos. 13 and 14 of the Appeal paper- book]. 11. PW 2 – Vanita Uike was cross-examined. Any specific defence is not coming forward from the cross- examination, and effort is to create a doubt about worthiness of this witness. The focus of cross- examination is to point out contradictions and to suggest that truth is not coming forward. 12. Perusal of testimonies of PW 1 – Madhukar Ragankar, PW 2 – Vanita Uike, PW 6 – Shripat Meshram and PW 8 - Chhaya Shripat Meshram, and the record disclose the following:- [a] In oral evidence, PW 2 – Vanita Uike states that her husband had collapsed on suffering head injury due to assault by the accused in her house. [b] She further states that on 12th September, 2009, when she went to her house, she found blood shed around, but did not find her husband. [c] PW 2 – Vanita had stated in her oral report, on the basis of which the crime was registered, that the dead body was found lying at some distance from the house in the foot way leading to the river. 7 [d] Panchanama of spot, from where dead body was recovered, also indicates that there is a house of Ramesh Bawane to the North of the place where the dead body was found. [e] It is seen from the Panchanama that strips/brush marks are found between the house of the deceased and the place where dead body was found lying, indicating that the dead body was dragged brushing the earth. [f] Conduct of PW 2 – Vanita is not natural when she did not shout for protection or help, though she escaped from the rear side door of house and took a shelter in the house of Shripat Meshram [PW 6]. [g] Ramesh Bawane is not examined as a witness, though he is a next door neighbour. [h] Shripat Meshram is PW 6, who is declared hostile as well his wife Chhaya [PW 8] is declared hostile. [i] PW 2 – Vanita has not explained as to why she did not disclose the incident to Shripat Meshram, which could have normally helped in saving the life of her husband. [j] It has not come on record as to why the Police Patil, or Police were not contacted forthwith. [k] Day of incident was early in September and 8 printed format of FIR shows that it was reported at 7.30, i.e., early in the morning. Police Station is 15 kms away from the spot of incident, and now it is not explained as to how reporting to Police Station or to Police Patil was not done on 11th September, 2007 itself, i.e., after the time and on the date the incident occurred. [l] In the First Information Report, PW 2 – Vanita complains about motive, but in oral evidence, she is totally silent on motive. [m] Stick found, particularly on which blood stains are there, is not proved to be the same used in the offence. Moreover, blood found on it is not connected with that of victim. [n] Cross-examination of PW 11 creates a serious doubt about the stick, subject- matter, as a weapon of assault. [o] In the cross-examination, Police Patil admits that “Ubhari” was not produced in his presence. He also states that complaint of PW 2 - Vanita was that her husband was 'not seen' and he asked her to file a police complaint. He denies that PW 2 – Vanita did not inform him about the quarrel between the deceased and the accused, however, there is no positive assertion in this regard in his Examination-in-Chief, or even in the Examination-in-Chief of PW 2 – Vanita. 9 [p] Spear was found hanging to the waist of the dead body, while PW 2 – Vanita denies that the deceased was carrying a spear. 13. If it was true that PW 2 - Vanita knew and had witnessed the assault by the accused, it is not explained as to how she could keep quiet and sleep peacefully for the entire night when the assault done by the accused was with “Ubhari”, which is supposed to be a heavy stick, and by a common sense, an assault would be grave in nature. 14. Conduct of PW 2 – Vanita that she does not make efforts to save her husband either by taking him to hospital with the assistance of the persons with whom she sought a shelter, or by seeking assistance of others is not natural. Her failure to contact Police Patil on the same day is also unnatural. 15. Moreover, PW 2 – Vanita has not explained reasons for her failure to seek any help. 16. It has not come on record that since the accused has a previous criminal record, or in the horrifying background, which would be a natural cause of preventing PW 2 - Vanita to complain against 10 accused, or even try to protect the victim, there was a failure to immediately report the incident to police. 17. From the re-appreciation of evidence done by this Court and omissions and contradictions which are noticed, the entire trust and reliance of prosecution on sole testimony of PW 2 – Vanita gets shaken. 18. In this situation, version of PW 2 – Vanita is not natural. It creates an impression that the truth is not coming before the Court, which leads to a room of doubt about the involvement of the accused. Hence holding the accused guilty for the act of fatal assault in the background of grave omissions by the prosecution witnesses is wholly unsafe. This doubt is not fictional, but well founded on account of gaps in the evidence and contradictions left over by the prosecution. 19. One does not know whether it was a folly or improper attention by the prosecution, but the testimony of PW 2 – Vanita does not rise to the height of trustworthiness. 20. Basing a conviction on such infirm and hazy evidence would be gravely risky, and difficult to be confirmed. 11 21. In the result, appeal succeeds. Judgment and order of conviction is set aside. Appellant is acquitted of the charge of offence punishable under Section 302, Indian Penal Code. He be set at liberty unless required in any other offence. JUDGE JUDGE -0-0-0-0- |hedau|