Shankar @ Bapu Ananda Arekar vs State Of Maharashtra

. This Appeal takes exception to the judgment and order dated 7^th May 1999 passed in Sessions Case No.311 of 1998 wherein two Accused persons were charged for the offence punishable under Section 302 read with Section 34 of Indian Penal Code ('IPC' for short). The third unknown Accused person who has participated in the said assault is absconding till date.

It is the case of the prosecution that, in the night of 07^th December 1997 PW-1 alongwith his cousin brother Krishna went to chinese food stall at Agarkar Chowk, since, they did not have enough money, Krishna was asked to go home and bring money. He therefore started proceeding towards home. He went to some distance, thereafter, Krishna raised shouts and hence his brother and friends went towards him. They saw that Krishna was being beaten by three persons with fist blows. Due to then interventions the assailants left Krishna. Thereafter they again came to the chinese stall and had their meal. After making the payment they started returning home. When they reached near the Agarkar Chowk again, they saw that the three persons who were earlier beating Krishna again started to beat him. PW-1 again intervened in the said fight which was followed by his friends. Seeing these persons the assailants left Krishna and boarded a running bus. Krishna fell down. He was not in a position to speak so also could not even drink water which was offered to him. He was taken in autorikshaw to the house of PW-1, they called one doctor. When the T-shirt of Krishna was removed, they saw a wound on the abdomen of Krishna, the intestine was found propounding out. Doctor examined Krishna and declared him dead. The report was immediately made to the police and on the basis of the said report crime came to be registered vide CR No.423 of 1997. During the investigation, statement of witnesses were recorded under Section 27 of the Evidence Act wherein, a knife came to be recovered at the instance of Accused No.1. Both Accused persons were arrested. Identification parade was conducted before S.E.O. Seized Articles were sent for Chemical Analysis. On conclusion of investigation, charge-sheet came to be filed before Competent Court.

Both Accused persons denied the charge hence they were tried. To bring home the guilt of the Accused persons, prosecution examined all 10 witnesses. The incriminating circumstances were put to the Accused persons in their statement under Section 313 of Cr.P.C. Accused did not lead any evidence before the Trial Court. The learned Trial Court found the evidence led by the prosecution sufficient to bring home the guilt of the Accused beyond reasonable doubt. The learned Trial Court however acquitted both the Accused persons for the offence punishable under Section 302 of IPC, however, convicted Accused No.1 for the offence punishable under Section 304(Part-II) of IPC and sentenced him to suffer three years rigorous imprisonment with fine.

The learned counsel for the Appellant/Accused submits that none of the witness of the prosecution more particularly the three eye witnesses have stated anything about the Accused causing assault with knife on the deceased. He drew attention of the Court to the testimony of these witness PW-1, PW-4 and PW-7 in order to argue that the evidence of these witnesses indicate that the alleged assault caused by the present Appellant is by fist and kick blows. It is his submission that for want of any evidence indicating that any weapon being held by the Accused, question of he to be responsible for the alleged injury caused to the abdomen of the deceased would not arise. It is his further submission that infact PW-1 has stated about one person having caught hold of the deceased and two other persons were beating him with fist blows. It is argued that the testimony of PW-1 is full of omission and contradiction which are duly proved through the Investigating Officer. It is his submission that though there is recovery of knife at the instance of the present Appellant, the said recovery cannot be termed as incriminating circumstance for want of getting support from Chemical Analyzer’s report.

According to him admittedly the incident has occurred in the night and it has been accepted by the Trial Court that it was a place with no sufficient light. It is further pointed out that the Trial Court has rightly refused to accept the identification parade conducted considering the non-compliance of mandatory provisions/rules in that regard. It is his submission that in such circumstances, identification of the Accused ought not to have been accepted by the Trial Court for the purpose of convicting him. It is further pointed out that the witness who claims that a knife was taken from his stall, has not identified Accused No.1 to be the same person. Thus it is his submission that there no evidence to connect this Appellant with the said knife and consequently the said injuries caused to the deceased with knife. It is further argued that there are allegedly three persons involved in the assault out of which one person is never being apprehended by the Police nor any investigation has been done in that regard. It is his submission that in absence of any cogent evidence to show that the present Appellant/Accused had knife with him and in fact caused injuries to the deceased with the said knife, the conviction recorded against him is not sustainable.

It is further submitted that though Section 34 of the IPC has been made applicable, there is no evidence to indicate that there was any common intention shared by Accused persons in order to kill the deceased or cause any injury which is likely to cause death of the deceased. In this regard it is pointed out that there were two incidents in which the assault was caused on the deceased. At the first instance due to intervention of PW-1, the assault was aborted and thereafter the deceased along with his friends and cousin went to the chinese stall and had meal. It is thus his submission that there cannot be said to have been any intention on the part of any of the Accused person to kill the deceased. In the light of this fact, it is his further submission that the prosecution ought to have proved that one of the Accused, more particularly Appellant No.1 i.e. Accused No.1 was having knife and he used the same knife in order to cause injury. He drew attention of the Court to the Chemical Analyzer report to indicate that the knife recovered at the instance of the Accused No.1 cannot be connected with the crime. It is his further submission that a mere recovery of a knife, unless it is shown to have been used in the crime, there is no relevance to such recovery. On these amongst other contentions it is his submission that the prosecution has failed to prove the guilt of the Accused beyond reasonable doubt and hence Accused deserves to be acquitted.

On the other hand learned APP supported the impugned judgment and order by contending that prosecution has proved the guilt of the present Appellant with the testimony of eye witnesses who had witnessed the occurrence of the assault caused by the three persons which included the present Appellant/Accused. It is his submission that the evidence of the eye witnesses is free from doubt and that no reason is brought on record in order to invalidate their testimonies. It is further argued that more particularly there is no enmity between the witnesses and the present Appellant in order to falsely implicate the present Appellant in the crime. Reference is made to testimony of PW-10 who deposed about one of the Accused person having taken a knife from his stall and the said knife was used in the assault. It is argued that the knife is recovered from the present Appellant/Accused under Section 27 of the Evidence Act and this becomes and incriminating circumstance against him. Insofar as the causing of death of the deceased is concerned, reliance is placed on the medical evidence which indicates that owing to the injury caused to the abdomen, the deceased died. It is therefore, argued that except for the incident of assault caused by the Appellant along with two other person, there was no other reason for causing of the injury to the deceased and hence this is not the case wherein any interference is required in the impugned judgment and order.

From the evidence on record more particularly from the testimony of eye witnesses it is clear that the incident in question has occurred on 7^th December 1997 at about 9.30 p.m. His evidence further discloses the fact that there were two independent instances in which the deceased was being assaulted by three persons. In the first instance as stated by the eye witnesses, there was assault on the deceased by fist and kick blows. The said incident of assault was intervened by PW-1 and others and thereafter the assault had stopped. The deceased thereafter alongwith his friend as well as cousin had food and left the said spot. It is thereafter the second incident occurred. As per the testimony of eye witnesses, none of them stated about weapon being used by any of the Accused in occurrence of the said incidence. There is no doubt that PW-1 stated that he could not concentrate to see as to by what object the assailants were beating deceased. Moreover, there is further evidence, more particularly medical evidence to indicate that the deceased had sustained injury to his abdomen and which resulted into his death. During the cross-examination the defense was not able to bring any evidence on record in order to show that the said injury would have been caused to the deceased in some other incident or for some other reason. Thus it can be said that the prosecution has proved that in the incident in question, the deceased sustained the said serious injury which has resulted into his death.

Now question arises as to whether it would be sufficient for the prosecution to prove the cause of the injury to the deceased in order to hold the Appellant/Accused guilty for the said offence and can be held responsible for inflecting the said injury to the deceased. Pertinently and admittedly there were three persons involved in the incident of assault. None of the witness in substantive evidence claims use of any knife in the assault and much less any particular to indicate as to Appellant No.1/Accused having caused injury with knife to deceased. The only link which is sought to be proved by the prosecution is on the basis of the testimony of the fruit vendor, who claims that the knife of his stall was taken away by one person which was used in the said assault. This witness however, does not identify Appellant/Accused No.1 to be the same person who had taken the said knife. Thus there is no evidence to show that the knife in questioned was taken by Appellant/Accused. When there are more than one Accused persons involved in the incident of assault, the burden would be upon the prosecution to prove specifically that it was the present Appellant who took the knife from the fruit stall and used the same to caused assault on the deceased. No doubt there is recovery of knife under Section 27 of the Evidence Act at the instance of Accused No.1 however, the said knife was sent for Chemical analysis, but no blood stains were found on it and as such the same knife cannot be connected with the crime in question. Thus there is no evidence to show that the present Appellant/Accused is the one who was having knife and so the possibility of causing of the injuries with the said knife by the present Accused on the deceased is not proved.

There is one more circumstance which is said to be incriminating against the present Appellant/Accused is that at his instance his clothes were seized by the Police under panchnama. The testimony of the panch witness clearly indicates that the said recovery was done. The seized clothes of the Accused along with the clothes of the deceased were sent for the chemical examination. The chemical examination report is at Exh.27 indicates that the blood group of the deceased is 'A' and the blood group of the Accused/Appellant is 'B'. The blood stains found on the clothes of the Accused are stained with blood of group 'A'. The Appellant/Accused No.1 therefore was required to give plausible explanation for finding of the said blood on his clothes.

In this regard the learned counsel for the Appellant/Accused submits that in the statement under Section 313 of Cr.P.C. no specific question was asked to the Accused on Exh-27 indicating the blood group 'A' was found on the cloth of him. It is his submission that it was not sufficient for the learned Trial Court to only refer to the testimony of the witness through whom the said CA report is proved. This Court finds substance in the contention of the counsel for the Accused that there is no specific question asked to the Accused in order to seek his explanation. Question No.37 only indicates that the reference was made to the testimony of the witness through whom CA reports were proved. The nature of question asked to the Accused was not sufficient to make him to explain the said incriminating circumstance.

Even if it is accepted for the sake of argument that the said question was sufficient to seek explanation and the said circumstance is incriminating against the Accused, the same cannot be said to be enough evidence to prove that it was the Accused who had caused the said assault on the injured/deceased with knife and was responsible for injury which led to his death. Pertinently in the said incident, as recorded earlier three persons were involved. It is for the prosecution to show as to who actually has caused assault on the deceased with the knife. The said evidence is missing in the present case. Even if presence of the Accused is accepted at the spot and if it can be said who have assaulted the deceased with fist and kick blows, the possibility of the blood being transferred on his clothes is not ruled out. In such circumstances, merely because the blood stains of blood group ‘A’ of the deceased was found on the clothes of the Accused, it cannot be concluded that the Accused has caused the said assault on the deceased and is responsible for his death.

Though the prosecution has come out with the case that there was a common intention shared by all three persons in causing death of the deceased, the evidence on record however does not indicate so. As per the testimony of the eye witnesses, in the first incident of assault, there was no use of any weapon of whatsoever nature. The deceased was assaulted with fist and kick blows by all three persons and thereafter on intervention of PW-1 the said assault was stopped. It is further the case of the prosecution that one of the Accused person, which according to the prosecution is Accused No.1 i.e. Appellant herein took knife from the fruit stall and caused assault on the deceased, this act alleged against the Accused indicates that there was no common intention shared by them of causing death to the deceased. It can be therefore said that the person who caused assault had not shared his intention with other Accused persons and he would only be responsible for the said assault on the deceased.

Thus there is no conclusive evidence in order to show that the present Appellant/Accused was having knife and that he caused assault on the deceased with knife. In view of the fact that, there was a third Accused who had also participated in the incident of assault, no investigation has been done in that regard. Thus the possibility of the said third Accused causing the said injury to the deceased would always remain. Needless to reiterate that the burden of proving the guilt of the Accused beyond reasonable doubt always rests upon the prosecution. The Accused is not required to prove his innocence but only has to explain the incriminating circumstances which are brought on record by the prosecution.

Here in this case even if the evidence led by the prosecution is accepted as it is, it does not lead to the conclusion that it was the Accused/Appellant who had caused the injury to the deceased on his abdomen with knife. Consequently, the Accused cannot even be convicted for the offence punishable under Section 304 (Part-II) of IPC. As as result of above discussion, the Accused deserves to be acquitted. Accordingly the following order.