1apeal-369-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 369 of 2010. Sunil Bisandatt Kaushik, age 51 years, Occupation residing at Damdarna Mohataha Tal. Jagjar, District Rohatak, Haryana now residing at Foneka Company, Vasind (presently lodged at Adharwaid Central Prison,Kalyan) .. Appellant. (Orig. accused No.1) Versus The State of Maharashtra ] .. .. Respondent. Mr S.R. Chitnis, Sr. Advocate i/by Mrs Vrishali Raje, Advocate, for the Appellant. Mr S.S.Pednekar, Additional Public Prosecutor, for the Respondent-State. CORAM:- D.D. SINHA AND A. P. BHANGALE, JJ. DATE OF RESERVING THE JUDGMENT :- 25TH OCTOBER,2010. DATE OF PRONOUNCING THE JUDGMENT :- 29TH OCTOBER, 2010. 2apeal-369-10 JUDGMENT (PER A. P. BHANGALE,J):- 1. This Appeal is directed against the Judgment and order dated 28/04/2010 passed in Sessions Case No. 202 of 1996 by the learned Additional Sessions Judge, at Court of Sessions, Kalyan whereby the Appellant Sunil Bisandatt Kaushik was found guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine in the sum of Rs.1000/-, in default to undergo rigorous imprisonment of six months. Being aggrieved by the judgment and order of conviction, present appeal is filed by the appellant. 2. Brief facts which led to the prosecution of the Appellant are: Complaint (Exh.125) was lodged at about 04:30 p.m. at Vashind, (Shahapur) Police Station on the basis thereof Crime No.I- 96 of 1989, under section 302 read with sections 147, 148, r/w 149 IPC, at the instance of Shri Venkat Sadashiv Jadhav (PW5), in respect of the incident which occurred on 22/03/1989, at about 1.45 to 2 p.m. came to be registered. The first informant along with Mohan Rathod and Parashuram were going by road towards their place of residence 3apeal-369-10 after enjoying milk-candies (Coolfies). Five persons including the appellant came and demanded money for Holi. Mahendrasingh, one of the accused, had caught hold of the complainant, but the complainant had refused to pay. Later, Appellant Sunil Kaushik, who came along with his associates towards them, had taken out a knife and stabbed twice on the abdomen of Mohan Rathod. (Deceased). The offenders ran away with the weapon of offence. The first informant did not chase the assailant due to fear. Mohan Rathod was lying injured with his intestines protruded out. Mohan was taken to the Hospital, but was declared dead. The investigation followed thereafter. Inquest (Exh 127) was drawn, of the dead body of Mohan Rathod. Scene of offence Panchnama (Exh 129) was drawn. Blood mixed soil and plain soil sample from the spot were collected. The dead body of the deceased was referred for the post mortem examination to Rural Hospital, Shahapur. Dr Ashok Ingale performed post mortem examination on 23/03/1989 (Ex 135). Under-wear and banian from the dead body were recovered under Panchanama (Ex 151). A Knife was recovered pursuant to disclosure from the arrested accused no.1 under the Panchanamas (Exs 154 and 155). 4apeal-369-10 3. Muddemal articles weapon recovered as well as sample of earth from the spot, clothes of the deceased were referred to the Chemical Analyzer with letter( Ex 163). Reports of Chemical Analysis were received . Upon completion of investigation the accused were charge sheeted before learned Judicial Magistrate Shahapur.The case was committed to the Court of Sessions, Thane. 4. The Charge was framed on 24/01/1989 (Exh. 8). The Appellant accused pleaded not guilty and claimed to be tried. (Plea recorded at Ex. 9). The prosecution examined 11 witnesses and closed evidence in the trial Court. The defence of the accused was of total denial. 5. We have heard learned advocate for the Appellant and Learned A.P.P. for the State. 6. PW1 Dr. Ashok Ingale (PW9) had conducted post mortem examination of the dead body of the victim Mohan Rathod . According to him, he found following external injuries on the dead body: 5apeal-369-10 1) Penetrating wound -1.5.right lateral to umbilicus-1.5 x .05 through which about 20 inches long small intestinal coils protrude out along with mesentery, shape is slightly triangular margins-bruised and inverted obliquely directed- left nipple to right iliac crest ,bluish-blackish discoloration with maggots. 2) Penetrating wound- 4 inches found umbilicus on left and upside below costal margin 1.20 x 0.5 through which piece of omentum-4 inch long protrudes out-wedge shaped, margins bruised and inverted, obliquely directed –left nipple to right iliac fossa. Bluish blackish discoloration with maggots. Following corresponding internal injuries were also observed in post mortem examination(Ex. 135) 1) Small intestine (ileum) lacerated wound transversely 6 x 2 cm up to mesenteric attachment, 2) Two Perforating lacerated wound small intestine along with mesentry-4 x 2 cms 6apeal-369-10 and 3 x 1.5 cms 3) Mesenteric perforation 3 x 1.25 cms 4) On the left side of abdominal wall there was haematoma 4 inches x 3 inches . There was haemo perironeum i.e collection of blood in the peritoneum cavity. 7. According to Dr Ashok Ingale (PW 9), cause of death was hemorrhagic shock due to haemo peritoneum and multiple injuries to small intestine. Doctor also opined that the injuries observed by him were possible by sharp and pointed object such as knife. The fact can not be disputed that deceased met with homicidal death. Presence of maggots observed by the Doctor though indicate that delay must have occurred to refer the dead body for post mortem examination. the trial court appears to have considered this aspect by making reference to the evidence and the opinions of learned authors on the subject of medical jurisprudence in this regard. 8. The next important question is - as to whether the appellant was author of the injuries which were found on the person of the deceased. 7apeal-369-10 We have answered the question in the negative for following reasons:- 9. Learned counsel for the appellant submitted that there are two eye-witnesses whose evidence has been relied upon in order to establish offence against the appellant. It is submitted that PW 5 Venkat Sadashiv Jadhav deposed about the incident. According to him, on 22.3.1989, on account of Holi festival and five persons, including Accused No.1, were playing with colours on that day. They were demanding money (contribution) for Holi. While PW 5 Venkat offered Rs.100/-, they were not satisfied and were demanding Rs. 200/- which PW 5 refused. Accused No.1, therefore, torn his clothes, later PW 5 along with Mohan Rathod (deceased) and Parshuram Pawar proceeded further. They had enjoyed coolfies under a tree. At that time, those five persons, including Accused No. 1 came rushing towards them and Accused No.1 had taken out knife from his pocket and inflicted two blows of the knife on the abdomen of Mohan Dallu Rathod and part of his intestine had came out. PW 5 then went to Police Station, Vasind and informed the incident to Police, which is complaint (Exh.125). Learned Counsel for the appellant criticized this 8apeal-369-10 evidence on the ground of identification of the assailant. It is contended that PW 5 was aged about 22 years on the date of the incident and is illiterate person working as labourer. No test identification parade was held. It is not his case that Accused No.1 was known to him since prior to the date of the incident. Learned Counsel for the appellant argued, considering the date of the incident and the alleged identification by PW 5 in the court, there was huge gap of long period and it is natural that features of a person would undergo changes due to the advanced age. The witness had not seen the appellant prior to the date of the incident and no test identification parade was held by the police. Under these circumstances, it was risky for the trial Court to accept the evidence of identification of the appellant in the Court as an assailant. Learned Counsel for the appellant also argued that it is the case of PW 5 himself that five persons were playing with colours on account of Holi, if that is so, at the time of the incident, the face of the assailant must have been covered with colours to make it more difficult for the witness to remember complexion of the assailant, his face and facial features after long gap of time of about more than 20 years, before he identified Accused No.1 in the Court. It is further 9apeal-369-10 brought to our notice that in paragraph 8 of the cross-examination PW 5 in clear terms admitted that on 22.3.1989, he saw Accused No. 1 and other four persons for the first time while they were playing with the colours. Although in the same breath witness claims that he was knowing five persons prior to 22.3.1989, no reason or occasion is mentioned as to how and why he was knowing them or had seen them. PW 5 is unable to describe the clothes which Accused No.1 was wearing at the time of the incident. He is unable to describe size and length of the knife with which the deceased was assaulted. PW 5 was also contradicted with the contents in his complaint Exhibit-125. In the charge-sheet, he alleged that the accused Mahendra Singh had demanded money from him in the Court. He alleged that Accused No. 1 made demand of money from him. It is further contended that the reason for identification in the Court may be that Accused No.1 was shown to him by the police, otherwise it was virtually impossible for PW 5 to identify Accused No.1 in the Court, considering the time gap between the incident and identification in the court which was more than 20 years period. Learned Counsel, therefore, submitted that the evidence of PW 5 is not reliable and acceptable against the Appellant. 10apeal-369-10 10. Another eye-witness whose evidence is relied upon by the prosecution is PW 8 Parshuram Pawar. The Learned Counsel for the appellant submitted that according to Parshuram when he along with Venkat (PW 5) and deceased Mohan called Kiran Thakur, Kiran Thakur had intervened in the quarrel and pacified those five persons who were demanding contribution for Holi. Kiran (PW 4), while deposing before the court, stated that he had not personally seen the incident. He did not depose anything about his intervention in the quarrel. It is further submitted that PW 8 Parshuram deposed about the incident and stated that Kiran (PW 4) had brought a jeep to the spot. Then he, along with Kiran Thakur (P.W.4) and Venkat (PW 5) took Mohan to Shahapur after the incident. But there is no corroboration to what PW 8 Parshuram had stated. It is also stated in the evidence that when Venkat (PW5) and deceased Mohan purchased Coolfies for eating and were eating Coolfies, at that time, the assailant came from their back side, when deceased Mohan Rathod shouted as “Bappa Melo” and he fell down, then PW 8 have seen the assailant. That being so, according to learned counsel for the appellant, the evidence of PW 8 Parshuram is also unreliable and not acceptable, particularly, when test identification parade was not held 11apeal-369-10 in the present case and PW 8 also in clear terms, in the course of his cross-examination in para 9, admitted that prior to the date of the incident, accused No.1 and those four five Bhayyas were not acquainted with him and he saw them for the first time on the date of the incident. It is further argued that police have not recorded statements of alleged eye-witness PW 5 Parshuram on the date of the incident. He is unable to describe clothes which the deceased was wearing or Accused No.1 was wearing on the date of the incident. In cross-examination, para 13, he has stated, which is as follows :- “When Accused No.1 and other five to six persons had came and they were stabbing deceased Mohan, at that time, they were wearing Chaddi and banian”. 11. Looking to such exaggerated statement, which PW 8 had ventured to make, it is really difficult to believe his version of the incident. We are aware of the huge time gap between the time of the date of the incident and the date when alleged eye-witnesses deposed in the trial court after more than 20 years, the accused is bound to undergo noticeable change in his features and unless there is 12apeal-369-10 assurance from rest of the evidence on record regarding identification of the offender, identification for the first time in the court, after more than 20 years or so, in the facts and circumstances of the present case, become unsafe and risky to rely upon. 12. It is also submitted that there were no special features of the accused no 1, which might have been noticed and remembered by the eye-witnesses and in the absence of such special features, it was not possible for the alleged eye-witnesses to identify the appellant in court after 21 years from the date of the incident. We do find force in this contention. It is submitted that there was possibility that Accused No.1 was shown to the eye-witnesses by police, before their deposition in the court was recorded to facilitate him to identify the accused in the Court after 21 years. In the instant case, we may mention that none of the witnesses in their oral statements, or in their oral evidence gave any description of the offender, whom they alleged to have identified in the court, nor did they mention about any identification marks or state anything about the built of the accused, whether they were fat, or thin, or of a fair colour or of black colour. In the absence of any such description, five persons who were playing with colours on the date of the Holi festival, their faces and 13apeal-369-10 clothes were covered with colours at the relevant time. It is in these circumstances, it is not possible for us to accept that the appellant could be identified by the witnesses who have virtually no reason to remember them, particularly, after the long gap of more than 20 years in the court. For these reasons, the trial Court was not justified in relying on the evidence of these alleged eye-witnesses and, therefore, the findings of conviction recorded by the trial court, in our view, are unsustainable in law. 13. Learned counsel for the appellant also argued that the prosecution relied upon evidence as to discovery of weapon of offence and examined PW 3 Sadashiv, however, PW 3 Sadashiv had stated that accused Sunil did not volunteer to make any statement in his presence. Thus, the alleged panchnama of disclosure and discovery of weapon could not be proved by any independent evidence. Apart from this, PW 1 Barku, who was examined in order to prove the inquest panchnama, was also disowned by the prosecution as he has turned hostile. Bandu Thorat (PW 2), who was examined in order to to prove seizure of the clothes was also disowned by the prosecution. Thus, there was no corroborative evidence to the evidence of alleged eye-witnesses. Another panch examined was to 14apeal-369-10 prove the inquest panchnama was Balu (PW 6) who disowned theory of the prosecution Motilal Prasad (PW 7) who was examined to prove spot panchnama also turned hostile to the prosecution. Investigating Officer who conducted investigation and drew panchnama was not examined. PW 10 Kamlakar Savant was examined in order to prove panchnama Exh.151 regarding seizure of clothes i.e. underwear and banian from the person of the deceased and arrest of one of the accused under panchnama Exh.152. However, he also did not support the case of the prosecution regarding alleged disclosure statement and discovery of knife at the instance of the appellant – Investigating Officer, Senior PSI Mr Borkar was not examined by the prosecution who could have thrown light upon the investigation carried out in the case from the beginning till the accused were charge-sheeted. 14. The learned Counsel for the appellant relied upon Niranjan Panja v. State of West Bengal (2010) 6 SCC 525 in order to show that it is obligatory for the prosecution to establish beyond reasonable doubt the disclosure statement and consequent discovery of weapon of offence. Our attention is invited to observations made by the Apex Court in paragraph 13 of the ruling :- 15apeal-369-10 “Unfortunately, for the prosecution this siuli katari was never brought before the court. It is said to have been lost and has never seen the light of the day before the court. This is apart from the fact that the proof of discoveries itself is doubtful”. 15. Learned counsel for the appellant submitted that the said observations are equally attracted in the present case as alleged weapon of offence, knife, was not produced before the court in the present case. 16. Reference is also made to ruling in Ravinder Parkash and anr vs. State of Haryana (2002) 8 SCC 426 regarding identification of the dead body in a decomposed state. According to the learned counsel, in the present case maggots were observed by the doctor who performed post mortem examination, indicating that there was delay of more than 24 hours before post-mortem examination was done. Therefore, benefit of ruling in Ravinder Parkash may be given in favour of the appellant, considering that prosecution was unable to establish positively time of death with reference to observations 16apeal-369-10 regarding presence of maggots in the post mortem notes. 17. The learned Additional Public Prosecutor supported the impugned judgment, fairly submitted that Investigating Officer was not examined and, therefore, it was difficult to bring on record the evidence regarding investigation carried out in the present case, as also to prove disclosure statement made by accused No.1 and consequent discovery of weapon after the relevant panchas turned hostile to the prosecution case. 18. We have considered the ocular evidence led by the prosecution in this case as also the circumstantial evidence sought to be relied upon. For the reasons stated above, the evidence do not inspire confidence to arrive at safe conclusion regarding guilt of the appellant for serious crime like murder punishable under section 302 of Indian Penal Code. Under these circumstances, we feel that the appellant was entitled for benefit of doubt which the learned Trial Judge ought to have given. In our opinion, when majority of witnesses turned hostile and were disowned by the prosecution, it was necessary for the prosecution to examine the Investigating Officer. The result of non-examination of the Investigating Officer is that the prosecution is unable to bring on record necessary facts on 17apeal-369-10 the basis of which inescapable inference of guilt can be drawn against accused No.1 in the present case. 19. In our considered opinion, therefore, having regard to the evidence led by the prosecution, the appellant is entitled to claim benefit of doubt. Accordingly, the conviction recorded by the trial Court against the Appellant for offence punishable under Section 302 of the I.P.C. is liable to be set aside. It is accordingly set aside. The appellant is in jail, he shall be released forthwith, if his detention is not required in any other criminal case. Amount of fine paid or deposited, if any, be refunded to the appellant. The appeal is allowed accordingly. sd/- (D.D. SINHA, J) sd/- (A. P. BHANGALE, J)