1 Criminal Appeal No.183 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.183 OF 2010 Sardarkhan S/o.Imamkhan Pathan, Age-30 years, Occu-Auto Driver, R/o.Kolgaon, Tq.Bhokar, Dist. Nanded APPELLANT VERSUS The State of Maharashtra RESPONDENT Smt.U.T.Pathan h/f. Mr.T.W.Pathan, learned counsel for the appellant. Mr.V.D.Godbharle, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 20/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellant, who stands convicted for an offence punishable u/s. 498-A, 201, 302 of The IPC for which he was sentenced to suffer RI for 2 years and to pay fine in the sum of Rs.1000/- with default stipulation to further undergo RI for six months for first two offences and for an offence punishable u/s. 302 of The IPC sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/-, and out of the fine amount recovered, Rs. 2,500/- to be paid to the father of the deceased, by the Additional Sessions Judge, Nanded in Sessions Case No.183/2006 vide his judgment and order dated 17/03/2010, has questioned the correctness of his conviction and sentence. 2 Criminal Appeal No.183 of 2010 2. Such of the facts as are necessary for the decision in this appeal can be summarized as follows : (a) On 16/01/2006, an offence was registered in Bhokar Police Station vide CR No.10/2006, on the complaint of Rafiullahbaig Nazirbaig (P.W.No.1) u/s. 302, 498, 201 r/w. 34 of The IPC against the appellant and 6 others. On 16/01/2006, investigation of the said offence was entrusted to Sudhakar Madanrao Reddy (P.W.No.6). During the investigation, he rushed to the spot situated near the bridge of Kolgaon road and in presence of panch witnesses, he drew spot panchnama (Exh.44). While drawing spot panchnama, he had seized one big stone weighing about 7-8 kg. stained with blood, to which some hairs were found stucked and some other articles. He also noticed that one auto was entangled in the bushes below the bridge. On the same day, he had recorded statements of witnesses. On 18/01/2006, he arrested the accused persons. On 24/01/2006, he examined some more witnesses from village Telgaon by name Rahul Kanade, Subhash Suryawanshi and others. Then, he had forwarded the seized property during the investigation alongwith the forwarding letter (Exh.52) to the Chemical Analyser at Aurangabad. From the place of offence, immediately after the accident, the injured Shabana Begum was shifted to Bhokar hospital for medical treatment, who later on reported to be dead in the hospital. Then inquest panchnama (Exh.50) and panchnama of seizure of clothes of the deceased (Exh.53) were drawn. After arrest of appellant 3 Criminal Appeal No.183 of 2010 Sardarkhan Pathan, clothes on his person were seized under panchnama (Exh.54). As Shabana Begum succumbed to injuries in Bhokar Hospital, autopsy was conducted on her dead body. During the investigation, post mortem report (Exh.49) was collected from the medical officer. After receipt of C.A. Reports Exh.55 to Exh.57, and on completion of investigation, charge sheet was submitted against the appellant and others before J.M.F.C. Bhokar, who after passing necessary committal order, committed the trial to the Court of Sessions. (b) On committal of trial to the Court of Sessions, Nanded, learned Lower Court framed charge at Exh.9 against the appellant and others for an offence punishable u/s. 498-A r/w. 34 of The IPC, while framed the charge for an offence punishable u/s. 302, 201 of The IPC only against the present appellant, to which the appellant and others pleaded not guilty. To substantiate the charge lavelled against the appellant and others, prosecution has examined in all 6 witnesses. Defence of the appellant is that on the fateful day, he was returning from the house of his in-laws alongwith his wife deceased Shabana and his twin daughters and one son in the auto rikshaw. He himself was driving the auto rikshaw. While he was passing from Ghat, from Renupur-Bhokar road, his rickshaw met with an accident in which Shabana expired due to fall from the auto on the stones below the bridge while he had also sustained head injury and trauma to his abdomen. In his defence, he had examined one Rahul Ganpat, 4 Criminal Appeal No.183 of 2010 who according to him is an eye witness to the accident and Dr.Pradip Tawade, the Medical Officer attached to the Rural Hospital Bhokar who has treated him. On appreciation of the evidence laid by the prosecution, learned Trial Court pleased to convict the appellant for the offences as stated above by discarding the defence evidence laid by him while acquitted original accused no.1 to 5 and 7 for an offence punishable u/s. 498-A r/w. 34 of The IPC. Admittedly, State has not questioned the correctness of the judgment of acquittal passed by the learned Trial Court. 3. For better appreciation of the submissions of learned counsel appearing for the appellant and the learned A.P.P. for State, it is necessary to advert to the evidence of the material witnesses examined by the prosecution before the Trial Court. Considering the evidence laid by the prosecution before the Lower Court, it is clear that the case before the Trial Court was based on the circumstantial evidence. 4. It is in the evidence of P.W.No.1 Raffiullah Baig Nazir Baig that deceased Shabana was his daughter. She was married with the appellant before 5 years of the incident. Appellant was auto driver and he used to hire the auto on rent. He has further deposed that Shabana gave birth to 2 daughters and son from the said wedlock. He has further stated that after his daughter Shabana gave birth to twin daughters, she was dropped to his house by the appellant. At 5 Criminal Appeal No.183 of 2010 that time, appellant demanded Rs.10,000/- from him to purchase the auto rickshaw. He has further stated that he has given under standing to the appellant and requested to treat his daughter properly and dropped Shabana to the house of the appellant. Shabana was treated property for few days and again illtreated by the appellant and dropped her to his house. Within 15 days thereafter, Shabana requested him to drop her to the house of appellant and accordingly she was dropped to the house of the appellant. While deposing about the occurrence of the incident, he has stated that on 15/01/2006, appellant had been to his house alongwith his daughter. At that time, appellant demanded money from him for purchase of tempo. He told the appellant about his in-ability to pay any amount. On hearing this, appellant got annoyed. Appellant left his house alongwith Shabana and their children in the auto-rikshaw. He has further stated that around 10.00 p.m., he received telephone message that there was an accident to the auto-rikshaw, in which his daughter was travelling. He was also informed that his daughter Shabana was admitted in Civil Hospital at Bhokar and referred to the hospital at Nanded. He also learnt that appellant was also seriously injured and was taken to the hospital at Bhokar. His daughter has sustained injuries over his head and on her wrist. His daughter was dead. He has further deposed that on the next day, he gave visit to the place of accident and saw that the auto rickshaw was entangled to the shrubs and there was no damage to the rickshaw. He has also stated that he had noticed one big stone to which some hairs 6 Criminal Appeal No.183 of 2010 were found adhered. According to him, he was of the view that there was no accident to the auto-rickshaw in which his daughter was travelling, but his daughter was assaulted with stone and hence he lodged complaint Exh.29 in the police station. He has stated in his cross examination that till his daughter gave birth to the twin daughters, she was living happily with appellant. He has further stated that he is unable to give the exact details about the date, time and place when illtreatment was caused to deceased Shabana at the hands of appellant and others. He has further stated in his cross examination that on 15/01/2006, appellant demanded Rs.10,000/- from him. On that day, appellant and deceased stayed at his residence for about 6 hours after they took lunch. He has stated that deceased told him that she required Rs.10,000/- for purchase of auto and not as hand-loan. He has further stated that when the appellant and his daughter left his house, appellant has not paid any respect to him. He has stated in his further cross examination that the incident took place in the Phulmal Ghat, which is a forest area. One stream is flowing below the bridge in that Ghat. The height of the bridge might be 25 ft. from the ground level. He has admitted that brother of appellant informed him on phone about the accident to the auto driven by the appellant and about admission of his daughter in Government Hospital at Bhokar. He reached in the Government hospital on receipt of the phone call. Bhokar Police Station is situated at 5 minutes walking distance from Bhokar Hospital. One Shri.Rahamatbaig Yusugbair, Ayubkhan Husainkhan, 7 Criminal Appeal No.183 of 2010 Balaji (P.W.No.3), Sajedbaig accompanied him to the Bhokar Hospital. In his further cross examination, he shown his ignorance about the fact that whether in the said accident, appellant also sustained injuries and was admitted in the hospital for treatment. In his evidence, prosecution got proved the FIR at Exh.29. 5. Prosecution witness no.2 Maruti Lachiram Wannapwar is neighbourer of P.W.No.1. He has stated in his evidence that on 15/01/2006, deceased and her husband/appellant had been to the house of P.W.No.1 and they returned back about 6.00 p.m. in the auto driven by the appellant. He has further stated that Village Sarpanch informed him and others on phone that the auto met with an accident and requested him and others to rush to the spot of accident. But they went to Bhokar Hospital where they found that Shabana was admitted and sustained injuries over her head and hand. He has deposed that at that time, Sardar Khan/appellant was not found admitted in the hospital. He has further deposed that on the next day, he accompanied P.W.No.1 and others to the place of incident and found that there was no damage to the auto rickshaw. He has further deposed that later on Shabana succumbed to the injuries in the hospital. Omission is proved in his cross examination that it did not found in his statement before police that Shabana informed him that she was illtreated on account of payment of money for purchase of tempo. Certain admissions were brought on record in his cross examination that the height of the bridge in the Phulmal 8 Criminal Appeal No.183 of 2010 Ghat is 25-30 feet and there were bushes and stones in the Phulmal Ghat. Auto was entangled in the bushes about 15 to 20 feet below the bridge. He had not seen the chappals or shoes of small children, which is contrary to the facts mentioned in the spot panchnama. 6. It is deposed by Balaji Iranna Nagalwad (P.W.No.3) that P.W.No. 1 is his neighbourer. On 15/01/2006, deceased and appellant had been to the house of Rafiulla in an auto, and returned back in the evening of the same day. Phone message was received in his shop around 9.00 p.m. by the brother in law of the deceased to call P.W.No. 1 on phone. The phone message was that the auto met with an accident and they were requested to rush to the place of the accident. Hence he alongwith P.W.No.1 and 2 rushed to the hospital. He has further deposed that on the next day morning he alongwith others had been to the place of accident situated at Bhokar-Rainapur road and the auto was found entangled in the bushes, below the bridge. The area where auto was found, was having slope from the bridge, but there was no damage to the auto. Children of deceased were in the hospital, but no injuries were found on their person. In his cross examination, he has admitted that the height of the bridge from the stream is about 10-15 ft. In the hospital, in laws of the deceased were present with children. 7. Anand S/o.Madhavrao Pitelwad is the panch witness to the panchnama of spot of offence, through whom prosecution have got 9 Criminal Appeal No.183 of 2010 proved Exh.45, the spot panchnama. It is brought in his cross examination that the spot of incident is situated on Bhokar-Renapur road in Phulmal Ghat. The height of the bridge from the ground level may be 15-20 feet. There were stones below the bridge so also bushes were also in that area. He has further stated that the auto was found entangled to the Babul tree. 8. During the trial, Dr.Jivan Vitthalrao Pawade proved the post mortem notes at Exh.49. According to him, on 16/01/2006, he was attached to Rural Hospital Bhokar. In the night of 15/01/2006, Shabana was admitted in the hospital, who expired at 9.15 p.m. During the autopsy, he had noticed following external injuries on her person : 1. Contused lacerated wound left side of the forehead, 2 in numbers, size 3 x 2 cm. bone deep. 2. Right parietal area of head, CLW size 5 x 2 cm bone deep. 3. Left eye was blackened. 4. Contusion of left arm at upper 1/3 rd. Suggesting of fracture humerus bone of left hand. 5. Swelling of wrist and abdominal movements present, suggesting of fracture. 6. Left ear bleeding present. 7. Left leg shin abrasion 2 x 1 cm. He had also noticed following internal injuries. 1. Under scalp haemotoma present in left parietal area, right 10 Criminal Appeal No.183 of 2010 parietal area and left frontal area. 2. Fracture of left temporal bone linear fracture. 3. Fracture of left frontal bone depressed. 4. Fracture of right parietal bone depressed. 5. Subdural haemotoma present in left temporal, left frontal and right parietal region. 6. Brain vessels below the fracture side are congested. According to him, cause of death of the deceased was due to head injuries. He has opined that the injuries mentioned in coloumn no. 17 and 19 of Exh.49 can be caused, if a person is assaulted with the stone with force on the head. In his cross examination, he has admitted that, “ if a passenger travelling in an auto, falls down deep on a hard substance like stone by force, then the injuries mentioned in coloumn no.17 and 19 are possible.” He has further admitted that, “if a passenger travelling in a auto and if a rickshaw toppled down then the injuries mentioned in coloumn no.17 and 19 are possible.” 9. It transpired from the evidence of Dr.Pradip Hanumantrao Tawade (D.W.No.2) that on 15/01/2006, he was present in the hospital. During the night hours, appellant and his wife were brought in the hospital as they met with an accident. Initially he examined Shabana as her condition was serious. After Shabana’s condition was stabilized, he had examined appellant and noticed two injuries on his person, 11 Criminal Appeal No.183 of 2010 1. Contusion on left side of the back, measuring 3 x 2 cm, 2. Blunt trauma abdomen. Appellant was complaining pain in his abdomen and was feeling giddiness. He has further stated that considering the nature of injuries sustained by the appellant, he was referred to Government Hospital, Nanded for further treatment. In his evidence, he has tendered original indoor patient register on record at Exh.65. In his cross examination, even though he admits that injury no.1 mentioned in Exh.65 is possible due to fall, but injury no.2 is not possible due to fall as there are various reasons for causing trauma. 10. Rahul Ganpat, defence witness no.1 has stated that in the evening of 15/01/2006, he was present in his field, situated at Renapur and he saw that the auto toppled down from the bridge and the female passenger has sustained serious injuries. The driver of the rickshaw and children also sustained injuries. He and another auto driver by one Subhash admitted the appellant, his wife and the small children in the Government Hospital at Bhokar. In his cross examination, even though he has admitted that he had not seen as to how the auto came down, he accompanied Subhash to the spot, from where both of them removed the injured and brought in hospital. 11. In the light of this evidence, we have heard learned counsel for appellant followed by the submissions of learned A.P.P. for State. During the course of arguments, it is urged on behalf of learned 12 Criminal Appeal No.183 of 2010 counsel appearing for the appellant that on perusal of the circumstances which are brought on record by the prosecution clearly establish that the incident occurred while auto driven by the appellant was passing from the bridge situated at Renapur-Bhokar road. Considering the spot panchnama and the evidence before the Court, it reveals that the auto met with an accident and toppled down from the bridge. It is urged that no separate panchnama of the auto was prepared to find out whether there is any mechanical fault with the said auto or any damage was caused to the auto. It is urged that P.W.No.1,3 and 4 can not be termed as expert witnesses to find out the damage, if any, caused to the auto rickshaw to infer that there is an accident or there is no accident to the auto rickshaw and the scenario of the accident was created by the appellant, and for this purpose, auto ought to be referred for the mechanical examination to the R.T.O. Whatever it may be and for whatever reasons, the fact is clear that there is no separate panchnama of the auto and it was not referred to R.T.O. for mechanical examination. Our attention is further drawn to the evidence of D.W.No.2 Dr.Pradip Tawade, who has opined about the trauma in abdomen of the appellant immediately on his admission in the hospital at Bhokar. According to learned counsel for appellant, this clearly establish that while climbing Ghat section, the auto met with an accident and due to handle of the auto, injury of trauma caused on the abdomen of the appellant. This possibility can not be rulled out. While auto toppled down from the bridge, possibility also can not be rulled out 13 Criminal Appeal No.183 of 2010 that the unfortunate victim Shabana fell from the auto and her head came in contact with the stone spread in the river bed below the bridge as the auto was found entangled to the trees and this defence raised by the appellant is probabilized in the cross examination of Medical Officer P.W.No.5 Jeevan Pawade. It is also urged across the bar that the allegations is of demand of Rs.10,000/- for purchase of auto at one place and for purchase of tempo at second place. It is also urged across the bar that considering the price of auto at the relevant time, they are 10 times more than the amount allegedly demanded by the appellant from the parents of the victim. Even a second hand tempo or second hand auto is also not available for Rs. 10,000/-. In the premise, it is urged that the possibility cannot be rulled out that the death of Shabana might have caused due to accident and the benefit of doubt be given to the appellant and appeal be allowed. 12. While supporting the judgment of the Trial Court, it is urged on behalf of the prosecution that considering the nature of injuries found on the person of the deceased, and the blood and hairs were found adhered to the stone found in the river bed below the bridge, it is to be held that it is not a case of an accidental death of Shabana, but it is a case of homicidal death of Shabana. It is also urged across the bar that the defence taken is false and improbable. Hence, even though the auto was not examined by the R.T.O., it is to be inferred that there was no damage caused to the auto, and it is 14 Criminal Appeal No.183 of 2010 not a case of an accidental death, but the case of homicidal death and the appeal be dismissed. 13. Considering these arguments across the bar and on re- appreciation of the entire evidence laid by the prosecution before the Trial Court, particularly the place where the incident occurred, there is no doubt in our mind that the height of the bridge from the ground level of the stream is about 20-25 feet and the auto was found entangled with the trees at the distance of 10 to 15 feet below the bridge, it is hard to believe that there is absolutely no damage to the auto rickshaw and the scene of the accident is created at the spot. It is an admitted fact that during the investigation after the auto was removed from the scene of offence, within some hours, after occurrence of the alleged incident, no separate panchnama was drawn showing the exact condition of the auto. Further it is also an admitted fact that after the auto was removed from the spot, it was not sent for the examination of the R.T.O.to find out whether there is any mechanical defect or there is no defect to draw the inference/conclusion that in fact the auto met with an accident/auto had not met with an accident. Considering the fact that the auto was climbing the Ghat and the auto was found below the bridge entangled in the shrubs, from where the river bed is further at the distance of about 10 ft, and stones were spread in the river bed. Considering the aspect that Shabana was travelling in the said auto, hence possibility can not be rulled out that the auto toppled from the 15 Criminal Appeal No.183 of 2010 bridge, and Shabana might have fell from the auto on the stones in the river bed. This inference required to be drawn on the basis of the information given by the Medical Officer that the injuries mentioned in Coloumn no.17 and 19 of the post mortem notes can be possible if the passenger travelling in the auto, met with an accident and the passenger fell out of the auto, may sustain these injuries. Secondly, injury no.2 caused to the appellant, opined by defence witness no.2 who is also attached to Government Hospital, Bhokar who treated the appellant simultaneously alongwith the deceased opined that trauma to the abdomen which might have caused when the vehicle met with an accident. Considering this situation, the case of accidental death can not be rulled out, and if it is so, the evidence of the prosecution witnesses is not free from doubt and the benefit of doubt required to be given to the appellant, which we gave to the appellant. In substance, following is the order : Criminal Appeal is allowed and the conviction and sentence of the appellant for offence punishable u/s. 302, 201 and 498-A of The Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appeal 183-10