Dipak vs State of Maharashtra

B.R. Gavai, J.—Being aggrieved by the judgment and order passed by the learned Principal Sessions Judge, Buldana in Sessions Case No. 121 of 2011 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 5000/- and in default of payment of fine, to undergo further rigorous imprisonment for 1 year and also convicting him for the offence punishable under Section 366 read with Section 511 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 5000/- and in default of payment of fine to undergo further rigorous imprisonment for 3 months, the appellant has approached this Court.

The prosecution story as could be gathered from the material placed on record is thus:-

That the deceased and the appellant are residents of the same village. The deceased belongs to Muslim community whereas the appellant belongs to Matang community. It is the prosecution case that the appellant was after the deceased that she should marry him. However, the deceased was not paying any heed to the requests made by the appellant. It is the prosecution case that the appellant agitated on account of the same.

It is the prosecution case that on 29.05.2011 in the evening at around 5.30 p.m., Malanbi the mother of the deceased PW 3 along the deceased and the other relatives including Samarina and Shahina so also Saminabi PW 4 had been to the well for fetching water, situated in the field of Vitthalrao Deshmukh. It is the prosecution case that when they were returning after fetching water with pitchers on their heads, when they reached the spot of the incident which was surrounded by bushes, accused Deepak unexpectedly and suddenly came there from the bushes. He was armed with a knife. He asked Parvinbi "why she was burning his heart, why she was not responding to his proposal". He then started inflicting blows of knife on her stomach, chest, shoulder in quick succession. After noticing the assault, sisters of Parvinbi viz. Samarina and Shahina got frightened and fled away from the spot. When Malanbi attempted to intervene, she was pushed by Deepak. She fell and sustained injuries on her chest and head. Parvinbi became unconscious and fell down on the ground. Lateron Deepak inflicted blows of knife on himself on stomach and then ran towards the village. Within short time, Mohd. Yakub Mohd. Ayub and Sk. Nisar Sk. Anis reached there as they were informed about the incident by Samarina. They lifted Parvinbi and carried her to the village. She was taken in a jeep to the Rural Hospital, Dhad. Malanbi stayed back at home. Subsequently she came to know that Parvinbi was serious and was advised to take at Aurangabad. On the next day of the incident, Malanbi went to Dhad Police Station and lodged a report about the incident at about 9.30 p.m. On the basis of the said report, first information report was registered vide Crime No. 30/2011 initially for the offences under Sections 307, 109 read with 34 of the Indian Penal Code. It appears that while being treated, the deceased died on 31.05.2011 and as such the offence was converted to the one under Section 302 of the Indian Penal Code. Upon completion of investigation, a charge-sheet came to be filed in the Court of the Judicial Magistrate First Class, Buldana against the appellant and his mother Arunabai Kamble.

Charges came to be framed against the appellant and his mother. At the conclusion of the trial, the learned trial Judge acquitted accused No. 2 - the mother of the appellant; however, passed the order of conviction and sentenced the appellant as aforesaid. Being aggrieved thereby, the present appeal.

Mr. A.J. Thakkar, learned counsel appearing on behalf of the appellant submits that prosecution story is totally false. He submits that as a matter of fact the appellant was having love relationship with the deceased. He submits that the appellant and the deceased wanted to marry each other. However, the relatives of the deceased and the other people from the Muslim community were opposing to it. He submits that as a matter of fact enraged with the deceased and the appellant, they assaulted both the deceased and the appellant, in which incident unfortunately the deceased has succumbed to the injuries. He submits that the prosecution has not come to the Court with clean hands. He submits that the medical report so also the dying declaration of the appellant which was recorded, are not placed on record though they were directed to be placed on record by the learned trial Judge. The learned counsel submits that the evidence of the so called eyewitnesses is not at all trustworthy. He submits that the story given by PW 3 and PW 4 is inconsistent. In the totality of the circumstances, the learned counsel submits that the appeal deserves to be allowed and the order of conviction needs to be set aside.

Mr. S.M. Ghodeswar, learned Additional Public Prosecutor on the contrary submits that the prosecution case is established by the evidence of eyewitnesses. He submits that the evidence of both the eyewitnesses is consistent on material aspect. The learned APP submits that merely because the witnesses are relatives, cannot be a ground to discard their testimony. The learned APP submits that the learned trial Judge had an opportunity to witness the demeanour of the prosecution witnesses and has found them to be trustworthy, reliable and cogent. The learned APP, therefore, submits that the appeal deserves to be dismissed.

From the evidence of PW 8 Dr. Shailesh Wakde and post mortem report which is at Exh. 51, no interference is warranted in the finding that the death of the deceased is homicidal. The only question that requires to be decided by us is as to whether the prosecution has proved beyond reasonable doubt that it is the present appellant who has committed the crime.

The prosecution mainly relies on the evidence of two eyewitnesses i.e. PW 3 Malanbi - mother of the deceased and PW 4 Saminabi - the aunt of the deceased.

PW 3 Malanbi states in her evidence that Deepak Kamble was residing in front of her house at Chandol. She states that for about 1 1/2 month prior to the incident, Deepak was teasing Parvinbi. He was insisting upon her that she should marry him, she should leave house and proceed with him. He was assuring that he would keep her happy. She states that Parvinbi had disclosed this fact to her. She further states that she was weeping while narrating such incident. She states that accused No. 2 advised her that since both the appellant and the deceased were young, she should perform the marriage of Parvinbi with her son Deepak. She further states that Parvinbi was not willing for the same.

PW 3 Malanbi in her evidence further states that on the day of incident at around 5 to 5.30 p.m., she herself, Parvinbi, Saminabi, Samrina and Shahin were proceeding to fetch water. She states that when they were returning home from the well of Vitthal Deshmukh, each of them was carrying water pitcher on their head. They were walking on foot path in the field, which was having slope and both sides of the road were on higher side. There were bushes on both the sides of the road. Accused Deepak arrived in front of them suddenly. He asked Parvinbi as to why she was not accepting his request and why she was burning his heart. He pierced knife on her stomach, chest and shoulder. Parvinbi was holding water pitcher with both of her hands. After sustaining blows, she became unconscious. She had sustained bleeding injuries. Deepak then inflicted blow of knife on himself. When they attempted to hold, he pushed them away. She sustained injuries on her forehead and chest. Deepak fled from the spot of the incident. He was holding knife while fleeing from the spot of incident. She states regarding lodging the first information report on 30.05.2011. She states in her cross-examination that she had lodged complaint with the Police about instances of teasing to Parvinbi by Deepak but the Police did not accept it. She did not lodge any complaint against the Police with higher officials. It is to be noted that the suggestion given to this witness was that the deceased was in love relationship with the appellant, however, her marriage was forcibly fixed somewhere else and, therefore, she had gone to meet the appellant, wherein the deceased and the appellant were assaulted. It is to be noted that this witness has categorically admitted that she had been to the hospital at noon with the Police and that she was taken to Rural Hospital, Dhad.

The next witness is PW 4 Saminabi who is the aunt of the deceased. She also narrates about Parvinbi telling her while weeping that Deepak was insisting upon her that she should marry him. The version given by her in her examination-in-chief is almost similar as that of PW 3. She also states that she had sustained injuries on her stomach and thigh. Since they attempted to intervene, Deepak pushed them and they fell down on the ground. However, it appears that her evidence is full of contradictions and omissions. It is to be noted that her statement is recorded after 15 days of the incident. The most important fact to be noted in the present case is that Dhad Police Station is situated at only 9 kms. from the spot Chandol Shivar where the incident had taken place. Not only that the deceased was first taken to Dhad Rural Hospital and was also given treatment there. It has also come in the evidence of PW 3 that she had visited the deceased at Dhad. Then the question arises as to why the first information report is lodged almost after 28 hours. The prosecution has not placed on record any medico legal papers while admitting the deceased in the hospital. It is further to be noted that the prosecution also relies on memorandum of the accused under Section 27 of the Evidence Act and the recovery on the basis of such memorandum of a knife which is alleged to have been used in the crime. However, it is to be noted that the said recovery is from an open place accessible to one and all. Apart from that the medical evidence cast a serious doubt as to whether the said weapon was used in the crime.

The evidence of PW 8 Dr. Shailesh Wakde, who has conducted the post mortem, would show that he has clearly admitted in his evidence that if the injuries caused by muddemal article No. 1, angle on one side would be blunt. He has further admitted that both the angles of all injuries in the present case are acute. He has further admitted that in case of injuries mentioned by him in post mortem note were caused by any weapon, that weapon would have been soaked with blood. He has further admitted that he did not notice blood with naked eyes either on head or on handle of the weapon. He has further admitted that Mehandi was applied to both hands of the victim. He has further admitted that absence of defence wounds on the hands may suggest that deceased must have been caught by her hands at the time of attack.

The prosecution also relies on the dying declaration of the deceased. However, it will be relevant to refer to the evidence of PW 1 Dr. Ramanand Ingle. He has admitted in his evidence that he has mentioned in the case papers that at 8 p.m. condition of Parvinbi was not stable, she was irritable and she was found unfit for giving dying declaration. He has further stated that the patient is rendered unfit for giving dying declaration when the blood pressure is 100/60. He has further admitted that when he had permitted the Magistrate to record the dying declaration, her blood pressure was 100/60. In view of this specific admissions, it is seriously in doubt as to whether the patient was in a position to give dying declaration.

In that view of the matter, we are called upon to find out whether the said dying declaration can be said to be cogent, trustworthy and reliable to base the conviction thereon. It could thus be seen that if the circumstances regarding the dying declaration and the memorandum under Section 27 of the Evidence Act go, what remains is only the testimony of eyewitnesses. Both the witnesses are closely related to the deceased. No doubt that merely because the witnesses are relatives and as such interested, cannot be a ground for discarding their testimony. However, the testimony of these witnesses is required to be scrutinized with greater caution. The conviction can be based only if the testimony is found to be trustworthy, cogent and reliable.

Both PW 3 and PW 3 state that they received the injuries when they tried to intervene inasmuch as they were pushed by Deepak and they fell on the ground. PW 3 states in her evidence that she received injuries on her forehead and chest. PW 7 Dr. Suresh Wankhede has stated that Malanbi had sustained swelling and tenderness over left eyebrow, lateral left back side of the scalp. However, he has clearly admitted that the two injuries sustained by Malanbi were not possible by single fall. It is further to be noted that PW 4 Saminabi states that she had sustained injury on her stomach and thigh. The same is not supported by the evidence of PW 7. Apart from this fact, this is all apart from the fact that though PW 3 had ample opportunity to inform the Police, the first information report is registered for the first time after 28 hours. Even according to PW 3, she was taken to Dhad Rural Hospital by the Police. For the reasons best known to the prosecution, the prosecution has not placed on record any medico legal papers during the said period.

In the light of these circumstances, the defence of the appellant needs to be scrutinized. In response to the queries under Section 313 of the Cr.P.C., the appellant has given additional explanation. He has stated that he and the deceased were residing in front of each other''s house since their childhood. He states that they were not understanding the barriers of their religion and fell in love of each other. He states that he had decided to complete his education and after getting employed, he will marry with Parvinbi. He states that he was taking education at Aurangabad. After completing his education, he came to his village, where Parvinbi informed him that her parents had decided to get her forcibly married against her wishes. He has further stated that in his village the last house is of Jabbar Qureshi and near that there are fields of Deshmukh and Mali. During the evening time, the villagers go in this area for answering nature''s call. He further states that on the day of the incident he had given message to Parvinbi to come near the field of Deshmukh to meet him. He states that Parvinbi came there and they were talking to each other. Mehandi was applied on the hands of Parvinbi and she was crying. In the meantime, the relatives of the deceased and other people from Muslim community came there and started assaulting him. When Parvinbi tried to intervene and save him, somebody from the Muslim community took out a sharp weapon and started assaulting her. He states that he was also assaulted with knife on his stomach. However, he managed to run away and went to his home and while his family members were bringing him to the hospital, he became unconscious. He states that when he regained consciousness, he saw that Parvinbi was also admitted in the same hospital in a seriously injured condition. He states that his dying declaration was also recorded. He further states that Police Constables Nizam Quazi and Akil Quazi who were relatives of the deceased, were also present there. He has thus stated that it was the relatives and the people belonging to the Muslim community who had assaulted the deceased and the appellant. We will have to scrutinize the evidence placed on record in the light of the explanation given by the accused-appellant to find out as to whether his defence is plausible or not.

PW 1 Dr. Ramanand who was working as Medical Officer in Rural Hospital has admitted in his cross-examination that the appellant had also sustained two stab injuries and was an indoor patient in the hospital for two days. He has further admitted that it appears from the record available with him that dying declaration of Deepak was recorded. From the testimony of PW 8 Dr. Shailesh Wakde and specifically his cross-examination, it would reveal that Mehandi was applied to both the hands of the victim. He has further admitted that absence of defence wounds on the hands may suggest that the deceased must have been caught by her hands at the time of attack. For the reasons best known to the prosecution, the prosecution has not produced the documents pertaining to the injuries sustained by the appellant. On the contrary from the record it would reveal that though an application made by the defence under Section 91 of the Cr.P.C., for calling the dying declaration of the appellant recorded by the Naib Tahsildar was granted by the learned Sessions Judge, however, in spite of a specific direction, the same was not placed on record. The explanation given by PW 4 that since the deceased was holding pitcher on her head, there are no injuries on her hands, does not appear to be probable. The deceased had sustained eight injuries. Immediately after the first injury, the deceased would have left the pitcher and attempted to save herself. We find that the defence version that the relatives of the deceased and the other people belonging to Muslim community being enraged with her love relationship with the appellant, assaulted the appellant and the deceased and that while doing so, catching the hands of the deceased appeared to be more probable. The evidence of PW 1 Dr. Ramanand, PW 8 Dr. Shailesh Wakde would rather support the defence version. In any case, an inference will have to be drawn against the prosecution for not supplying the papers regarding the injuries caused to the appellant and the dying declaration, though specifically directed to be produced by the learned trial Judge. We find that the prosecution has not come to the Court with clean hands and has suppressed the real story.

In that view of the matter, we find that the prosecution has failed to prove the case beyond reasonable doubt. In the result, the appeal is allowed. The order of conviction and sentence is set aside. The appellant is directed to be set at liberty forthwith if not required in any other case.