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Judgment
P.N. Deshmukh, J—This criminal appeal is preferred against the judgment dated 30/4/2012 passed by learned Additional Sessions Judge, Darwha in Sessions Trial No. 14/2007, thereby convicting appellants/accused no.1 Kashiram, accused no.2 Dashrath and accused no.3 Vijay for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentencing them to suffer life imprisonment and pay fine of Rs.10,000/- each and in default of payment of fine, to suffer simple imprisonment for six months each. Out of fine amount, amount of Rs.25,000/- is directed to be paid to daughters of deceased, namely, Nikita and Arti as compensation. Accused no.1 Kashiram is father of accused no.2 Dashrath and accused no.3 Vijay.
In brief, it is the case of prosecution that late Khirabai was mother of accused no.1 and cousin mother-in-law of P.W.2 Vimal, mother of deceased Sukhdev. Khirabai died about 12 years prior to incident and was holding 5 acres of land situated at village Jawala. P.W.2 Vasram is brother of accused no.1 Kashiram and there was dispute in respect of land of 5 acres. Prior to the incident, deceased Sukhdev had assisted P.W.2 Vasram for getting his name entered in 7/12 extract in respect of half share of the said property and for this reason, accused no.1 Kashiram and his sons, namely, accused no.2 Dashrath and accused no.3 Vijay were on strained relations with deceased Sukhdev.
In the backdrop of above facts, it is the case of prosecution that on 28/1/2007 at about 7 - 8 p.m. deceased Sukhdev went out of his house and while he was returning back, he was chased by accused having armed with stones in their hands. Subsequently, accused nos.2 and 3 caught hold of Sukhdev and accused no.1 assaulted him by stones on his forehead, due to which he sustained injuries and fell down on road. The assault was witnessed by P.W.1 Vimal, who brought Sukhdev in the house and took him to the Hospital at Darwha on the following day in the morning when he was declared dead on admission.
P.W.1 Vimal thereafter lodged a report (Exh. 84) with Darwha Police Station, on the basis of which Crime No. 5/2007 was registered against accused for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, which was investigated by P.W.14 Sanjay Shendre, during the course of which he drew inquest panchanama (Exh. 144), forwarded dead body for post mortem, which was conducted by P.W.8 Dr. Kharode on the same day and effected arrest of accused nos.1 and 3. Further investigation was carried out by P.W.13 Darade, P.S.I., who drew spot panchanama and seized stones from the spot as per Exh.98 and arrested accused no.2 Dashrath. He forwarded muddemal articles for analysis to Chemical Analyser and on completion of investigation, filed charge-sheet in the Court of Judicial Magistrate, First Class.
In the course of time, case came to be committed for trial to the Court of Sessions. Charge was framed against accused for the above offences vide Exh.7, to which they pleaded not guilty and claimed to be tried. The defence of the accused was of total denial and of false implication. It is their case that deceased Sukhdev was addicted to liquor and in the influence of liquor, he fell down on the road and sustained injuries to which he succumbed on the following day.
To establish the charge levelled against the accused, prosecution in all has examined 14 witnesses, namely, P.W.1 Vimal, who proved her complaint (Exh.84), P.W.2 Vasram on the circumstance of strained relations between accused and deceased Sukhdev on account of land dispute, P.W.3 Jay, eye witness, P.W.4 Uttam, panch on spot panchanama and seizure of clothes of deceased Sukhdev, P.W.5 Shankar, panch on seizure of shirt of deceased Sukhdev and his blood sample, P.W.6 Vishwanath, co-panch on spot panchanama, who has not supported the case of prosecution, P.W.7 Ramesh, who had drawn map of scene of offence (Exh. 109), P.W.8 Dr. Kharode, who had performed autopsy and issued post mortem report (Exh. 115), P.W.9 Dashrath Rathod and P.W.10 Ganesh, eye witnesses, who have, however, not supported the case of prosecution, P.W.11 Subhash Kharat, Judicial Magistrate, First Class, who had recorded statements of P.W.9 Dashrath Rathod and P.W.10 Ganesh under Section 164 of Code of Criminal Procedure and has proved portion from statement of P.W.9 Dashrath (Exh. 132) and from statement of P.W.10 Ganesh (Exh. 131), P.W.12 Uttam, Police Constable, who registered A.D. on 29/1/2007, P.W.13 Dinkar Darade and P.W.14 Sanjay Shendre, both Investigating Officers.
Heard Dr. Kalsi, learned Counsel for appellants/accused and Ms. Mehta, learned Additional Public Prosecutor for respondent. With their assistance, we have scrutinized the documents and evidence available on record.
Admittedly, the case of prosecution is based on ocular evidence of P.W.1 Vimal, complainant and of P.W.3 Jay. In the light of above, we have considered the evidence of P.W.1 Vimal, who has stated that deceased Sukhdev was her son and she knows all the accused being neighbours. According to her, mother of accused no.1 died about 12 years before, leaving 5 acres of land behind in her name, upon which there was dispute between accused no.1 and his brother Vasram and deceased Sukhdev had assisted Vasram by visiting the office of Talathi and getting his share entered in the revenue records, due to which, he was threatened by accused no.1 about 15 days prior to the incident to kill him.
P.W.1 Vimal has further stated that on the day of incident, i.e. on 28/1/2007 in the evening, Sukhdev, herself, P.W.3 Jay and one Renuka were present in the house. At around 8 p.m. Sukhdev had been to the village square and while he was returning back to home, she heard his commotion and that of accused, due to which she came out of house and found Sukhdev coming towards the house running. She has further stated to have witnessed accused chasing Sukhdev having armed with stones saying that deceased Sukhdev had given partition to their brother Vasram and has further stated that as soon as Sukhdev came in front of house, accused no.2 Dashrath and accused no.3 Vijay caught hold of him and accused no.1 Kashiram assaulted Sukhdev by means of stones on his forehead and head, due to which he fell down and became unconscious. She has further stated that at the time of incident, P.W.3 Jay, one Arjun and Renuka, P.W.9 Dashrath Rathod and P.W.10 Ganesh arrived on the spot and she along with P.W.10 Ganesh brought Sukhdev inside the house while P.W.9 Dashrath Rathod and Arjun took accused to their house. She has further stated that on that day as there was no transport facility available to carry injured Sukhdev to Hospital at Darwha, he was taken to Hospital on the following day where he was declared dead. She has also stated to have visited Police Station, Darwha and lodged report as per Exh. 84.
In the cross-examination of P.W.1 Vimal, it has come on record that partition of land between Vasram and Kashiram had taken place about one month prior to the incident and she admits that during this period, accused were residing in the village and used to meet her daily. She has further admitted that except for the incident, which took place on 28/1/2007, there was no quarrel between accused and deceased Sukhdev any time before.
In view of above evidence of P.W.1 Vimal, prosecution cannot be said to have established any motive on the part of accused to commit assault on Sukhdev as incident of parting half share out of 5 acres of land owned by mother of accused no.1 Kashiram, in the name of his brother Vasram had taken place about one month before and till the day of incident, there was no quarrel between deceased and accused on this count.
Before considering further cross-examination of Vimal, we find it appropriate to consider evidence of P.W.3 Jay, who is heavily relied by prosecution as an eye witness, who has stated that on the day of incident, he was in the house of P.W.1 Vimal as he was studying. He has further stated that at about 7.30 to 8 p.m. he heard commotion in front of house and, therefore, P.W.1 Vimal along with his maternal aunt went out of house to whom he followed and saw accused chasing deceased Sukhdev to commit assault upon him. He has further stated that deceased Sukhdev was running towards the house when accused Dashram and Vijay caught hold of him in front of house of accused no.1 and accused no.1 assaulted him by stones, due to which he fell down. He has further stated that P.W.9 Dashrath Rathod, P.W.10 Ganesh, one Renuka and Arjun Ade had intervened in the assault.
The prosecution has not examined Renuka and Arjun Ade. The prosecution though examined P.W.9 Dashrath and P.W.10 Ganesh, they have not supported the case of prosecution. As such, the only evidence to establish corroboration to the evidence of P.W.1 Vimal is that of P.W.3 Jay and, therefore, it is material to consider if P.W.3 Jay can be said to be an eye witness to the incident.
In the cross-examination, P.W.3 Jay is suggested that the incident since had taken place on Saturday, he after attending his School, had gone back to his village Mokh as usual wherefrom he directly attended the School on Monday, to which he denied. To establish presence of P.W.3 Jay, when further cross-examination of P.W.1 Vimal is considered, she appears to have materially improved her version so as to establish presence of P.W.3 Jay on the spot along with her at the time of incident when she admits to have stated before Police that on the day of incident, Jay was present in the house. However, she is unable to assign any reason as to why she had not mentioned said fact in her statement recorded by Police. In that view of the matter, we find much force when it was suggested to P.W.1 Vimal that on the day of incident, Jay had been to his parents house at Mokh being week end though said suggestion is denied by her. P.W.1 Vimal has further improved her case when she admits to have stated before Police that all the accused were chasing Sukhdev armed with stones and is unable to state any reason as to why it is not recorded in her statement by Police. She also admits to have stated to Police that when Sukhdev was brought in the house, Jay was present. However, she is unable to assign any reason of not having mentioned said fact in her statement recorded under Section 161 of Code of Criminal Procedure. In that view of the matter, P.W.1 Vimal appears to have materially improved her case so as to establish presence of P.W.3 jay as an eye witness and further improved her case about accused chasing deceased Sukhdev armed with stones in their hands. In the circumstances, there appears no corroboration to the version of P.W.1 Vimal whose evidence, even otherwise, does not inspire confidence when she has further stated that accused no.1 Kashiram was holding stones in both hands, however, had not assaulted by stones to deceased Sukhdev by pelting them. There is no evidence on record with reference to the manner in which accused had assaulted deceased Sukhdev. In that view of the matter, we find much substance when it was suggested to P.W.1 Vimal as well as P.W.3 Jay that deceased Sukhdev, who was addicted to liquor, at the time of incident was under the influence of liquor and on his own, fell down on the road sustaining injuries on his person though these suggestions are denied by both these witnesses.
Even evidence of P.W.3 Jay, for the reasons already stated above, does not appear to be truthful though, when considered, does not corroborate the evidence of P.W.1 Vimal when he has stated that big stone was in the hands of accused no.1 and two small stones were in the hands of accused nos.2 and 3 and has specifically stated that accused no.1 has not pelted stones to Sukhdev. P.W.3 Jay, even otherwise, appears to be unreliable when he has deposed that there was pool of blood on the spot, when according to P.W.13 Darade, Investigating Officer, there were no blood stains or pool of blood noted by him on the spot when he visited the same for drawing spot panchanama on the same day and there is specific mention in this regard in spot panchanama (Exh. 98). P.W.13 Darade, Investigating Officer has admitted that on 30/1/2007 he had recorded statements including that of P.W.1 Vimal and six other witnesses, who are relatives of deceased Sukhdev and neither of these witnesses has stated that P.W.3 Jay was residing with P.W.1 Vimal for the purpose of education and was present at the time of incident on 28/1/2007. Admittedly, no statement of P.W.3 Jay was recorded till 5/2/2007. No explanation is put forth by prosecution for not recording his statement for almost 7 days. Had he been eye witness to the incident or had his name been disclosed by complainant or other witnesses as one of the eye witnesses, his statement would have been recorded by Investigating Officer immediately. Delay in recording statement of P.W.3 Jay further substantiates the case of defence of his being not eye witness to the incident, but on considering material omissions, which are brought on record, he appears to be a got up witness just to support P.W.1 Vimal.
In view of above facts, we do not find it safe to rely on evidence of either P.W.1 Vimal or P.W.3 Jay, more particularly when Investigating Officer has stated that during the course of investigation, none of the witnesses had stated to him that P.W.3 Jay was present on the spot of occurrence and has further deposed that till recording of statement of P.W.3 Jay on 5/2/2007, there was lack of evidence establishing his presence as eye witness on the spot.
From evidence of P.W.8 Dr. Kharode, it is found that deceased Sukhdev had sustained following external injuries :
"1) Contusion present on the middle of left eye-brow, 3''x1''.
2) Abrasion present on frontal region just above the contusion, it is brownish in colour, size 1''x1''.
3) Abrasion present on right shoulder joint. It is dark in browning colour, size 1 1/2 x 1 cm.
4) Contusion present on right parietal region of the scalp, size 1'' x 1''.
5) Abrasion present on parietal region of scalp, size 1/2'' x 1/2''.
All these injuries were anti mortem injuries."
P.W.8 Dr. Kharode has stated that aforesaid injuries were possible by stones, which were forwarded to the Medical Officer for obtaining answers to queries. His evidence, by itself, does not establish the authors of injuries sustained by deceased Sukhdev. Admittedly, no definite opinion as to cause of death is given by the Medical Officer nor he has deposed as to which amongst five injuries sustained by deceased Sukhdev was sufficient to cause his death. In that view of the matter, there is much substance when it is suggested to Medical Officer that as injury no.1 was not sufficient to cause death, he has not given specific opinion with regards to the said injury. The Medical Officer has further admitted that if injuries sustained by deceased at his skull and scalp portion were treated timely, he might have survived. Admittedly, deceased Sukhdev was not referred to Hospital throughout night and brought dead in the Hospital in the morning on the next day. No satisfactory explanation has been put forth by the prosecution on this aspect except for suggesting of non availability of transport facility.
Though from the evidence of P.W.4 Uttam, prosecution apart from proving spot panchanama, has established fact of seizure of clothes of deceased Sukhdev under panchanama (Exh. 99) and on examining P.W.5 Shankar has further established seizure of clothes of deceased Sukhdev along with his blood samples as per seizure panchanama (Exh. 103), the said aspect does not substantiate the case of prosecution any further as according to Chemical Analyser''s report, the blood of deceased Sukhdev is stated to be of group `A'' and human blood of group `A'' is certified to have been found on the clothes of deceased Sukhdev. Though two stones were stained with human blood, their blood grouping could not be determined while no blood was found on one of the stones. Admittedly, no blood samples of accused were collected nor they were forwarded for their blood grouping. In that view of the matter, finding blood of group of deceased Sukhdev on his own clothes is of no consequence. No reason is put forth by prosecution for not seizing clothes of any of accused.
On considering overall evidence as discussed hereinabove, we find that prosecution has miserably failed to establish guilt levelled against the appellants. The criminal appeal is, therefore, liable to be allowed.
In the result, criminal appeal is allowed. The impugned judgment and order dated 30/4/2012 passed by the learned Additional Sessions Judge, Darwha in Sessions Trial No. 14/2007 is quashed and set aside. The appellants/accused are acquitted of the offences charged against them. They be set at liberty forthwith, if not required in any other case. Fine amount, if any paid by appellants, be refunded to them.