Case: Mahesh Vs. State Of Maharashtra

2. Brief facts, which led to the trial of the accused, are as follows:-The appellant-Mahesh and one Sunita were residents of Bastarwari Ward, Paoni, Tehsil Paoni, District Bhandara. It was alleged that they developed love-affair with each other when they were studying in the school. The prosecution case was that the marriage of Sunita was arranged with Sanjay, a resident of Nagpur. Before the marriage of Sunita could take place with Sanjay, the appellant had gone to the house of Sanjay and disclosed the fact of his past love-affair with Sunita. He also threatened Sanjay to face with dire consequences if he would marry with Sunita. Sanjay in the presence of his brother Manik (PW-7) told the appellant that as the "Sakshagandha" Ceremony had already taken place, he was left with no other option except to marry with Sunita. It was on 12.02.1988 when the marriage between Sunita and Sanjay took place at Nagpur. On 27.03.1988, Sanjay and his wife Sunita both had gone to the house of Nirmalabai for inviting the latter to attend the marriage of the niece of Sanjay scheduled to take place at Nagpur. They had stayed for a night at the house of Nirmalabai. On the next day, i.e. 28.03.1988, Nirmalabai, Sanjay (PW-8), his wife Sunita, Archana (PW-4) - niece of Sunita and Rupesh (PW-16), son of the maternal uncle of Sunita, had gone towards the bridge side of Wainganga River for evening walk. It was alleged that around 5.00 or 5.30 in the evening, the appellant along with his friend Rajesh (PW-5) was seen by the above-said persons going on a motorcycle to Wainganga River bridge side. The appellant on seeing Sanjay, his wife Sunita, Nirmalabai, PWs-Archana and Rupesh at the site of the river, allegedly uttered "Sali Sunita Yevdha Prem Asun Aaj Ekda Sudha Mazyakade Pahile Nahi" to PW-Rajesh. The prosecution alleged that on the same day, the appellant had kept a gun and one bag at the house of Laxmibai (PW-2) in the presence of Bilkish Begum (PW-3), a neighbour of PW-2 on the pretext that he would collect these articles in the evening for hunting purpose. The appellant and PW-Rajesh returned to their respective houses in the evening. After some time, the appellant armed with a gun and knife came back to the place of incident and fire shot in the back of Sanjay, who, as a result of bleeding injury, uttered Are Bapre and then laid on the road side. Sunita and Nirmalabai both tried to extend help to injured Sanjay, but the appellant came near them, pulled Sunitas hair and stabbed her on vital parts of head, neck and back. Sunita collapsed on receipt of severe injuries. Nirmalabai tried to save her daughter Sunita, but the appellant struck knife blows to Nirmalabai also. The appellant, on seeing the gathering of people at the scene of occurrence, ran away leaving all the three injured persons on the spot.3. Prakash (PW-1), a private Medical Practitioner, who lived nearby the place of occurrence, on hearing shouting of the people, went to the spot. He spotted Sunita lying with bleeding injuries on the road side. He also spotted Nirmalabai and one man lying in injured condition at a little distance away from Sunita. PW-Prakash lifted Sanjay, Sunita and Nirmalabai into a rickshaw and took them to the Government Hospital, Paoni, where they were admitted by Dr. Laxman (PW-10), Medical Officer. Sunita could not survive and succumbed to the injuries in the evening around 7.15 p.m. Dr. Laxman sent a memo to the Police Station, Paoni, regarding admission of the injured persons. PW-Sanjay and Nirmalabai were transferred to Medical College, Nagpur, at about 7.45 p.m. for proper medical treatment.4. PW-Prakash at about 7.30 p.m. lodged a written complaint (Ext. 28) at Paoni Police Station, on the basis of which First Information Report bearing Crime No.34/1988 (Ext. 29) was registered by PSI Dhimole (PW-18) under Sections 302 and 307 of the IPC. PW-Dhimole started investigation. He tried to get the dying declaration of Sunita and statements of injured Sanjay and Nirmalabai recorded, but at the relevant time he could not get the services of any Executive Magistrate readily available for the purpose. The Investigating Officer conducted inquest on the dead body of Sunita. He arrested the appellant on the same day at about 7.30 p.m. The appellant allegedly made a disclosure statement to the Investigating Officer expressing his willingness to point out the place where a gun and one knife were concealed by him. The appellant took the Police and the Panch witnesses, namely, Vithoba Khobragade (PW-9), a Legal Practitioner, and Harihar Barsagade (PW-13) to his house and got the weapons of offence recovered therefrom. The articles were seized by the Investigating Officer vide Panchnama (Ext. 43).5. Dr. Laxman conducted the post mortem examination on the dead body of the deceased Sunita and recorded the following injuries in Post Mortem Report (Ext.Incised wound 3 cm x 1 cm over left forehead.2) Incised wound 3 cm x 1 cm inter-scapular region to right side.3) Incised wound/stab 1 cm x = cm over posterior side of neck in midline area.4) Incised wound 3 cm over Metacarpopharynegeal joint of right hand.5) Incised wound 2 cm 1 cm over middle finger of right hand.6) Incised wound 1 cm x 1 cm Metacarpopharynegeal joint of right middle finger.7) Incised wound over scalp 3 cm x 1cm behind right ear.8) Incised wound 3 cm x 1 cm over occipital region of skull.9) Incised wound 5 cm x 1 cm over mid parietalautopsy vide Exhibit 62 shows following internal injuries on herPleura-perforating injury 1 cm x 1 cm upto apex of left lung.2) Left lung: 2 cm x = cm injury to the apex of left lung plenty blood collection was seen in left thoracicto the opinion of the doctor, the cause of death of Sunita was due to shock due to hemorrhage.6. Dr. Laxman examined PW-Sanjay and found the following injuries on hisIncised wound/stab over abdomen 3 cm x 4 cm in left Hypochondrium.2) Fire arm injuries 9 in number on left size back at renal angle level to upper iliac crest.3) Firearm injuries over buttocks. Two injuries were on right buttock and one injury was on left buttock and size of each injury was 1 cm x 1 cm edges of all the said injuries were inverted. Black right all around the injuries would of exit seen.On examination of Nirmalabai, Dr. Laxman noticed the following injuries on herIncised wound/stab over left scapular region 2.5 cm x 1cm bleeding was present.b. Incised wound 7 cm x 1 cm over face right side lateral to lateral angle of eye.c. Incised wound 2.5 cm x 1 cm over right hand above little finger.d. Incised wound over right elbow joint 2.5 cm x 1 cm Movements frees.The Investigating Officer collected the post mortem report (Ext. 62) of Sunita, her Injury Certificate (Ext. 54), Injury Certificate of PW-Sanjay (Ext. 55) and Injury Certificate of PW-Nirmalabai (Ext. 56) respectively. At the Medical College Hospital at Nagpur, some pellets of gun fire were taken out of the body of PW-Sanjay. The Investigating Officer collected samples of nails of the appellant in the presence of Panch witnesses and the same were sent to the Chemical Analyser.9. After completion of the investigation and after receipt of the post mortem report and the Injury Certificates of deceased Sunita, PW-Sanjay and Nirmalabai and also the Chemical Analysers Reports (Ext. 99, Ext. 100 and Ext. 102) and Report of Ballistic Expert (Ext. 101). PW-Dhimole submitted charge sheet against the appellant in the Court of Chief Judicial Magistrate, Bhandara. The Chief Judicial Magistrate committed the trial of the appellant to the Court of Sessions, Bhandara, as the offences framed in the charge sheet were exclusively triable by the Court of Sessions.10. The trial of the appellant was conducted by the learned Additional Sessions Judge, who framed charges against the appellant for the offences under Sections 302, 307 and 324 of the IPC and for the offences under Sections 25 and 27 of the Arms Act.11. The prosecution examined as many as 18 witnesses in support of its case. In the statement under Section 313 of Cr.P.C., the appellant has denied his involvement in the crime. He pleaded that the prosecution witnesses are inimical towards him. He admitted that on the day of incident at about 5.00 to 5.30 p.m., he along with PW-Rajesh had gone on a motorcycle towards river side for evening walk and thereafter they went to a small hillock in the vicinity and stayed there for about 1 = hours. They kept motorcycle near one Hotel, where they had taken tea and when they were walking on a small hill, they heard sound of blasting of cracker and thereafter they returned to their respective houses. The appellant also stated that when he came to his house, some people told that murder had taken place. The defence of the appellant was that he was arrested on suspicion by the Police on account of old quarrel with the grandfather of deceased Sunita and he pleaded innocence.12. The learned Additional Sessions Judge has disbelieved the testimony of the injured witnesses inter alia on the grounds: (a) they are close relatives and also interested witnesses besides they being untrustworthy because their evidence did not find corroboration from any independent witnesses though many people were present at the scene of occurrence, yet none of them was examined by the prosecution, (b) some of the important witnesses have turned hostile to the prosecution and (c) the recovery of weapons of offence has not been supported by the panch witnesses and, therefore, recorded the judgment of acquittal of the appellant. Being aggrieved, the State of Maharashtra preferred Criminal Appeal No.198/90 in the High Court of Judicature at Bombay, Nagpur Bench. The Division Bench of the High Court scrutinized and reappraised the entire oral and documentary evidence on record and has come to the conclusion that the learned Trial Judge has not properly appreciated the evidence on record and therefore, the judgment was set aside and as a result thereof, the appellant has been held guilty for the offence of murder of Sunita. The record shows that during the pendency of the trial, Nirmalabai had died and, therefore, she could not be examined as a witness and injuries sustained by her though sought to be proved through PW-Dr. Laxman, yet the High Court has noticed that there was no evidence on record to prove the period of hospitalization of Nirmalabai and the nature of medical treatment given to her by the doctor of Medical College at Nagpur. In the circumstances, the appellant has been acquitted of the charge under Section 324 of IPC for causing injuries to Nirmalabai. As regards the gunshot injuries caused to PW-Sanjay by the appellant, the High Court has come to the conclusion that the prosecution has not established that pellets extracted out of the body of PW-Sanjay were corresponding to the pellets allegedly fired by the appellant from the gun recovered from him by the Investigating Officer. No Medical Officer from Medical College, Nagpur, who medically examined PW-Sanjay, has been examined by the prosecution to prove injuries received by Sanjay from fire arm. In these circumstances, the High Court has given benefit of doubt to the appellant for an offence under Section 307 of IPC and consequently, no offence under the Arms Act as well has been found against the appellant. The appellant has filed this appeal against his conviction and sentence imposed upon him by the High Court for the murder of Sunita.

Reasoning: 16. Though the above principles are well-established, a different note was struck in several decisions by this Court. It is, therefore, appropriate if we consider some more leading decisions on the point.In the backdrop of the above-said contentions of the learned counsel for the parties and in the light of principles laid down in the above referred decisions of this Court and the Privy Council on the question of exercising powers in appeal by the High Court against the order of acquittal and the well-settled principles laid down in a series of decisions of this Court on the point of appreciation of the evidence of the injured eye-witnesses and non-injured eye-witnesses, we shall consider the evidence placed on record to find out whether the High Court has committed any error in dealing with the evidence, which can be said to be patently illegal or that the conclusion arrived at is wholly untenable, calling for interference by us.The contention of the learned counsel for the appellant that the conduct of PWs-Archana and Rupesh, the alleged eye-witnesses, not accompanying the injured persons to the hospital and not reporting the incident to the Police should be viewed with suspicion and, therefore, their evidence has to be rejected fromthe present case, we find from the record that at the time of the occurrence of the crime PW-Archana was about 19 years of age whereas PW-Rupesh was hardly 14 years of age. Both these witnesses as earlier stated on seeing the appellant giving repeated knife blows on some parts of neck, head and back of Sunita and inflicting severe injuries to PW-Sanjay and Nirmalabai, they immediately rushed to the house of PW-Sadashio and promptly reported the entire incident to him. The conduct of these two children, in these circumstances, cannot be found suspicious or unnatural as contended by the learned counsel. These witnesses have withstood the cross-examination with courage and boldness and their testimony could not be impeached by the defence in regard to the genesis of the incident. The eye-witnesses have no animus against the appellant to implicate him in a false case and leaving the real assailant from the clutches of law. In the circumstances, no fault can be found in regard to the conduct of these witnesses. This contention raised deserves to beThe High Court, on reappraisal and reassessment of the entire evidence on record, came to the conclusion that immediately after the occurrence a report came to be lodged to the Police Station against the appellant who has been identified by the PW-Sanjay, an injured eye-witness and non-injured eye-witnesses and further that the appellant had strong motive to commit the murder of Sunita with malice towards PW-Sanjay-her husband, as well as her deceased mother Nirmalabai, therefore, simply because there are some minor discrepancies in the evidence of witnesses which are of no consequence to the true genesis of the case and that some evidence has not been adduced by the prosecution, though might have been available, would not be sufficient grounds to believe that the appellant has been booked in a false case. There is nothing on record brought by the appellant to show that it was quite possible that the witnesses would spare the real culprit and implicate him in a false case. On the basis of the entire evidence elaborately discussed by the High Court, it cannot be held that the appellant, in the present case, has been framed on suspicion.49. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence discussed in the earlier part of the judgment and tested in the light of the principles of law highlighted above, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Additional District Judge, was wholly justified and warranted. The evaluation of the findings recorded by the High Court do not suffer from any manifest error and improper and mis-appreciation of evidence on record. Hence, we agree with the opinion of the High Court that the appellant is the real culprit and he has been rightly held guilty of the offence punishable under Section 302 of IPC. All the contentions raised by the learned counsel for the appellant, in our view, do not merit acceptance.