Omkar Nandlal Damahe vs State of Maharashtra

A.B. Chaudhari, J.—Being aggrieved by judgment and order dated 12.03.2003 in Sessions Trial No. 45/1997, passed by Additional Sessions Judge, Gondia, by which the appellant/accused No. 1 Omkar Nandlal Damahe was convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life and pay a fine of Rs. 2500/-, present appeal was filed by the appellant-accused No. 1.

FACTS:

In brief, case of the prosecution is that one Shamlal Mansaram Maharwade was coming from the place of incident towards his house when accused Nos. 1 to 4 started quarreling with him on the allegation that his brother Baliram disclosed their names to the police that accused were dealing in illicit liquor. When the quarrel was going on, wife of Shamlal came to the complainant-Baliram and told him about it. Baliram intervened in the matter for pacifying them but then appellant-Omkar gave a stick blow on his head and accused No. 2 also gave blow of stick over his back, due to which he sustained injuries on his head and he fell down. Female members of his family took him inside the house. Thereafter, the deceased Mansaram, father of Baliram and Shamlal, came out and tried to convince the accused persons not to quarrel. The appellant-Omkar gave a blow of stick over his right parietal region. As a result, he fell down and went unconscious. The other accused persons started giving blows of sticks. The incident was witnessed by Renubai Patole and Sukhdeo Patole since they came out upon hearing shouts and saw all the accused assaulting Mansaram and Baliram. The complainant Baliram took his father to the hospital at Gondia. The Doctor did not notice any external injuries but still the patient was in coma and his condition was poor. There was no bleeding at all from anywhere, therefore, he had suspected the case of head injury, cerebral vascular episode. Report was lodged at about 3.00 a.m. on 02.05.1997. Crime No. 50/1997 was registered under Section 302 and 324 read with Section 34 of the Indian Penal Code with Police Station, Gondia. All the five accused persons were arrested. The appellant-Omkar discovered the stick. The Investigating Officer, thereafter, conducted investigation, filed chargesheet and after completing all other formalities, the accused persons were put on trial. The defence was of total denial. It was alleged that it was the complainant who had caused injuries to accused No. 2-Sunderlal and the prosecution has suppressed the real manner of occurrence of the incident. The trial Court heard the parties and, thereafter, acquitted the three accused persons and convicted the appellant-Omkar for the offence of murder of Mansaram. Hence this appeal.

ARGUMENTS:

In support of the appeal, Mr. Joshi, learned counsel for the appellant, submitted that overall reading of the evidence of the prosecution clearly shows that the prosecution wanted to suppress the genesis of the occurrence of incident and prosecuted the appellant-party when as a matter of fact the prosecution very well knew that the complainant-party had assaulted the accused persons who had received bleeding injuries also. He submitted that though it is true that there is no burden on the prosecution to explain the injuries on the person of the accused, the fact remains that the same is required to be evaluated in each and every individual case and found out whether non explanation of injuries on the person of the accused would be fatal to the prosecution, benefit of doubt should be given to the accused persons. According to Mr. Joshi, in the present case, there is an admission by the Investigating Officer that the accused persons were injured with bleeding injuries. He also argued that there is an evidence on record that the accused party were present in the Police Station even before the complainant had come to lodge the report to Police Station that was obviously so because the accused party wanted to lodge the report to Police Station about the assault on them in which they suffered bleeding injuries. Merely because deceased Mansaram ultimately succumbed to the injuries, the prosecution was not justified in suppressing the prosecution case from the court. He then submitted that the prosecution did not examine any independent witness from the village. He also relied on the decision in the case of Lakshmi Singh and Others Vs. State of Bihar, . Mr. Joshi took us through the entire evidence so also all the papers, which were exhibited during trial before the Court.

Per contra, Mr. Thakare, learned A.P.P. for the State, opposed and argued that there is an evidence that the appellant-Omkar had given stick blow on the head of the deceased Mansaram and that is the reason why conviction of Omkar has been recorded for an offence under Section 302 of the IPC. Had the appellant not given blow of stick on the head of the deceased Mansaram, he would not have fallen down and would not have suffered internal injuries. It is not necessary that there must be external injury for causing internal injury, particularly in the case of high blood pressure or haemorrhage in the brain. The learned A.P.P., therefore, submitted that in the wake of evidence of the two eye witnesses, consistently speaking about the blow given by appellant-Omkar on the head of the deceased Mansaram, there is no reason why any fault could be found out with the judgment of the learned trial Judge. He then submitted that it is not necessary for the prosecution every time to explain the injuries on the person of the accused. According to him, if at all the accused wanted to press into service any such point about injury, they were not prevented from adducing their evidence independently. However accused persons did not adduce any evidence, therefore, now it is not open to canvass such an evidence. He, therefore, prayed for dismissal of the appeal.

CONSIDERATION:

We have heard learned counsel for the rival parties. We have gone through the entire record. We have also perused the medical evidence. It is clear from the record that the prosecution examined independent witness from the village namely; Lakhan Mendhe (PW1), Dhanlal Tarone (PW2), Bharat Mohabe (PW3) and Tilakchand Patle (PW4) living in the same locality and all of them turned hostile and did not support the prosecution. Thus, there is no independent witness examined in this case by the prosecution.

The prosecution examined Baliram Maharwade (PW5) the complainant who lodged the FIR. In his evidence, he stated that Omkar had given blows of stick and one blow over and above the right ear of his father Mansaram who fell down. In para 21 and 24, he stated thus:

"21. Myself, father took dinner at about 8 p.m. I know Devchand Darnake. I admit that Shamlal was not in home when myself took dinner. When I went at road, quarrel between accused and Shamlal was going on. I admit when I went there accused scuffle between we all . I did not come to know that Shamlal gave blow of stick over body of Sunderlal. It is not true that when I went there I saw that Sunderlal had sustained injuries over his back right leg head and near right eye, forehead and near nostril. It is not true that I assaulted Omkar, Nandlal and Zanaklal and caused them injuries. It is not true that I assaulted them by stick. When I went in Police Station, accused No. 1 and 2 were present in Police station. I also not know if they were referred by Police to hospital for treatment. When I went to the spot, my father did not come with me.

& 23......

I was taken inside dahel by ladies. I was there for half hour. I regained consciousness after hours."

It is clear from the above evidence that he is not an eye witness. On the contrary, his evidence in paragraph 21 clearly corroborates the case of the defence that there was quarrel amongst the accused party and complainant party. In the said scuffle between these two groups, Sunderlal had also suffered injuries, though he denied that he also assaulted Omkar and others. He also admitted that when he went to lodge report, accused persons were also present in the Police Station, though he denied that they were sent for treatment to the hospital. It is risky to believe this witness. Sukhdeo (PW6) stated that he saw accused Omkar giving blow of stick over right ear of Mansaram who fell on the road. He admitted that there was no electricity in the house of accused persons as well as deceased Mansaram and 5-10 persons were also present at the time of incident. The evidence of these witnesses will have to be decided in the light of other prosecution evidence. The evidence of Dr. Subhash (PW7) shows that he did not notice any external injury on the person of deceased Mansaram nor there was any bleeding. This itself shows that the stick blow even assumed was given was not such as to cause any external injury. At any rate, the age of Mansaram was 60 years at the relevant time and, thereafter there is evidence of Dr. Dilip (PW8) who stated in his cross-examination thus:

"I admit that due to hypertension a brain vessels ruptured then haematoma may cause. It is not necessary that Haematoma may cause if a person suffering hypertension becomes excited. I admit that in the event person fall by force on Dhadi (platform Ota) such internal injury may cause."

Ranubai (PW8) is neighbour of Mansaram. In her cross-examination she admitted in paragraph 6 that she saw sticks in the hands of Shamlal and Baliram. Krishna (PW12), the Investigating Officer, was also examined by the prosecution. In the cross-examination, he has given following admissions in paragraphs 14, 21 and 22, which reads thus:

"14. I admit that when I arrested all accused, each of them had injuries on body. Then Baniyan of accused Omkar was seized, it had blood stains. I had sent all accused for medical examination. I admit I received their medical certificates. I have not filed it with chargesheet.

to 21. ......

I have taken preventive action against complainant. That action was against both parties. I cannot remember today if such action was in fact taken.

I did not investigate as how accused sustained injuries because those were caused in same course of transaction and there was of Mansaram."

Looking to the above evidence, it is clear from the record that the accused persons received bleeding injury during the incident and have been sent for medical examination by the Investigating Officer. But the Investigating Officer, chose not to file medical reports in respect of nature of injuries on the accused persons for which there is no reason advanced by the prosecution. The prosecution witnesses have also given admissions about the sticks in the hands of the complainant-party and the scuffle between them. We find that in such a situation where accused party suffered bleeding injuries and were sent for medical examination and their reports were also received but the same were suppressed from the Court by the prosecution for which there is no explanation. We think that such a stance adopted by the prosecution in not bringing entire genesis of the incident before the Court and presenting only one sided story before the Court that the complainant party was attacked and in the absence of any bleeding injuries on the person of the victim, the prosecution is held guilty of the principle suppressio veri suggestio falsi. At any rate, in the above fact situation and the evidence, which we have discussed, it is difficult to separate chaff from the grain. That obviously gives rise to doubt and it is well settled legal position that the benefit of doubt must go to the accused persons. We are, therefore, inclined to hold that in the present case, the appellant, who was found guilty, must be given benefit of doubt for the reason given by us above on the basis of evidence brought before us.

Hence, we pass the following order.

(i) Criminal Appeal No. 217/2003 is allowed.

(ii) The impugned judgment and order dated 12.03.2003 passed by the Additional Sessions Judge, Gondia in Sessions Trial No. 45/1997 convicting and sentencing the appellant/accused for the offences punishable under Sections 302 and 324 of the Indian Penal Code is set aside. The appellant/accused is acquitted of the said offences.

(iii) His bail bonds stand cancelled. Fine, if any paid, be refunded to the appellant.